Lifting the Veil of Secrecy

Judicial Review of Administrative Detentions in the Israeli Supreme Court, by Shiri Krebs

Vanderbilt Journal of Transitional Law, Vol. 45, No. 3, May 2012

Shiri Krebs is currently a JSD candidate at Stanford Law School in the USA; between 2006 and 2010 she served as a legal advisor on international law matters in the chambers of Chief Justice Dorit Beinisch, President of the Israeli Supreme Court. Her paper looks at the system of judicial reviews of administrative detention within Israel, looking at all cases, those of Israeli citizens as well as Palestinian from the West Bank and Gaza, and foreign nationals. She provides a thorough analysis of the process of judicial reviews, flaws and strengths together. By providing a thorough and balanced analysis of the system, she exposes the massive flaws still prevalent in administrative detention procedures despite attempts at checks and balances by the judiciary.

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Beginning with an overview of the whole system, Krebs describes the process of judicial review (JR) as it should be practised and then highlights the reality. Looking at its limitations she focuses on the most important factors in all cases: the role of the courts, the role of judges and the use of secret evidence. She notes the use of administrative detention for reasons of “state security” and that since the creation of Israel the country has been in a state of “national crisis” and concerned with security issues. It is for this reason that Israel has implemented the administrative detention system.

According to Krebs, many sources believe that the judicial review process provides the necessary checks and that the system is fair due to the rigorousness of the courts. As Krebs develops her argument she concludes that although there are clear attempts to provide fairness in the process, in reality the system does not necessarily match the presumptions that it is wholly fair and adequate. Administrative detention, she points out, should balance security needs with international law and the rights of the individual.

Statistically, we are told, 95 per cent of administrative detention cases relate to Palestinians of the occupied West Bank and Gaza Strip; only 5 per cent are Israeli citizens or “aliens”. Given that military rule applies in the occupied territories, administrative detention is dealt with differently.

Although appeals against administrative detention in the West Bank should be heard by the Military Court of Appeal, it has become almost customary to take them to the Supreme Court in Israel, where judicial reviews are considered. Krebs suggests that there is evidence that the cases of Palestinians from Gaza and the West Bank usually have a different outcome to other cases. Her research leads her to conclude that following judicial reviews, fewer than 1 in a hundred cases had their appeals upheld.

One aspect to which Krebs devotes much attention is the use of secret evidence by the prosecution against the detainees, which puts detainees and their lawyers at a huge disadvantage. Such evidence is made available to the judge at a review hearing. Krebs describes the dual system used by the courts when analysing secret evidence: judicial management, where the judge must act as both judge and lawyer for the detainee in assessment of the evidence; and the system whereby a special advocate is appointed to represent the detainee during the presentation of the secret evidence. Although the former is used by the Israeli judicial review system, 4 out of 5 judges prefer the latter.

Two other key findings of Krebs’s research were that there had been an increasing number of petitions to the Supreme Court despite a high withdrawal rate (which was put down to negotiations and settlements before the hearings), and that the courts had not released anyone in the last 10 years.

Shiri Krebs provides us with a thorough overview of the judicial review system and goes to great lengths to show the system is there to provide fairness to the process of administrative detention. However, she sums up by saying that in practice the law is weak, and describes it as nothing more than an “assembly line”. She says that while the system was commended for its robustness the findings of her research prove that the actual practice is far more complex and much less positive.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.