Newsletter Legal Department

Newsletter Legal department

    20 August 2012
    Newsletter - issue #6
    1.      News                                                                                                             2
    1.1         High Court of Justice discusses the IDF policy of investigating incidents resulting in civilian casualties.
    1.2         High Court of Justice issues its ruling on the procedures for investigating complaints against GSS officials.
    1.3         Supreme Court concludes: "temporary non-deportation" is different from refugee determination
    1.4        A committee to examine the status of building in Judea and Samaria has published its conclusions
    1.5         IDF makes international law class for field commanders
    1.6         A new Basic Law bill instigates a debate over constitutional structure
    2.      Upcoming Events                                                                                         6
    2.1         Media in Conflict Seminar
    2.2         Conference on Treaty Bodies and International Accountability for State Human Rights Obligations
    The judgments and bills cited here are currently published only in Hebrew. This is an unofficial translation only for the purpose of this newsletter update, and in no way replaces any future official translations which may be available for the documents mentioned.
    High Court of Justice discusses the IDF policy of investigating incidents resulting in civilian casualties (HCJ 1901/08)
    On 15 July 2012, Israel’s High Court of Justice (HCJ) dismissed a case against the Military Advocate General (MAG) regarding the Israel Defence Force (IDF) policy of investigations. The Court rejected the assertion that the operation during which Issa Dababse was killed was a targeted killing operation, and held that based on the available information there is no ground to order a criminal investigation.
    The contested issue was whether the operation that took place on 7 November 2001, when Dababse had died, was one of targeted killing or an arrest operation. The Court indicated that the main question is when the IDF should conduct a criminal investigation in cases where Palestinian civilians die as a result of military activities in the Area of Judea and Samaria (also known as the West Bank, hereinafter: the Area). The Court then noted that since the petition had been filed, the State has changed its policy with regard to investigations, and new instructions have been issued which reflect the new security situation.
    Considering that in the Area there has been a decrease in IDF operational activity in recent period, the MAG and the Attorney General have decided to adjust the policy regarding investigations. The new instructions order that every case where a civilian is killed as a result of military operations, a criminal investigation will be ensued. Only when the killing is clearly the result of an apparent act of war by its nature, the decision to initiate a criminal investigation will depend on the conclusions of a preliminary examination of the facts of the case as they appear from a command inquiry. This amended policy corresponds to the security situation in the Area, and is subject to revisions based on any alteration of the situation there. With respect to instances which happened prior to the change of policy, each case will be examined individually to decide whether to initiate a criminal investigation.
    The main question before the Court was, therefore, whether the specific circumstances of the case require the initiation of a criminal investigation. The Court noted that the operation order was one of arrest, not killing. It found no reason to interfere with the discretion given to the MAG and the State Attorney's Office in reaching a decision on whether or not to open criminal investigations, since their decision is (a) not extremely unreasonable; (b) nor vested in foreign interests; or (c) based on a fundamental mistake or error - any of which would require interference by the Court.
    The Court finally reiterated that in addition to the command inquiry following the incident, MAG has since then reviewed further information and evidence submitted by the petitioners, and the re-examination did not alter the factual circumstances in a way that would require the initiation of a criminal investigation.
    High Court of Justice issues its ruling on the procedures for investigating complaints against GSS officials (HCJ 1265/11)
    On 6 August 2012, the High Court of Justice dismissed a petition filed by several human rights organizations and other private petitioners, requesting to determine an obligation to initiate a criminal investigation for every case of complaint of alleged torture or other form of ill-treatment against a General Security Service (GSS) official.
    The Court first examined the current procedures applied to these cases. Every time a complaint is filed against GSS investigators, the relevant material is submitted to the Attorney General and his authorized subordinate (who has been specifically designated for these cases), which decide whether to initiate a criminal investigation. Prior to making such submission, a designated official – the Inspector of Interrogee Complaints (IIC) – is concluding a preliminary examination into the matter, and submits the conclusions to his supervisor in the State Attorney's Office. The Supervisor of the Inspector of Interrogee Complaints (Supervisor of IIC) examines the findings of the preliminary examination, and decides whether (a) to forward the materials to the Attorney General's authorized subordinate in order for him to decide to open a criminal investigation; (b) to initiate internal disciplinary proceedings; or (c) to close the case. Finally, a criminal investigation – if so decided – will be carried out by the Police Investigations Department (PID).
    The contested question was therefore whether the State Attorney's Office - which was not specifically designated to authorize the initiation of criminal investigations in cases of complaints of alleged torture or other forms of ill-treatment - is nevertheless authorized to make a determination not to open criminal investigations in such cases.
    Following a consideration of the relevant legal framework, the Court concluded that a decision to initiate criminal investigations cannot be ordered based solely on a complaint that a crime has been allegedly committed. The obligation to initiate a criminal investigation is not an automatic one, and depends on the existence of evidentiary support. A complaint, unsubstantiated by appropriate evidentiary support, cannot justify by itself the initiation of criminal investigations. Thus the Court determined that there exists a legal basis for preliminary examinations.
    Taking into account the established legal basis for preliminary examinations and considering the threshold of evidentiary support required for the initiation of criminal investigations, the Court ruled that the IIC mechanism provides a good balance between the relevant interests. The Court however emphasized that this determination is conditional upon completing the ongoing process of disengaging the IIC from the GSS and transferring him to the Ministry of Justice. The Court further stressed that the Supervisor of the IIC should be authorized to decide on initiating a criminal investigation (in addition to been authorized to decide on closing a case), and that a notification on a right to appeal should clearly be given in each case. Finally, the Court reiterated that every decision is subject to judicial review.
    Supreme Court concludes: "temporary non-deportation" is different from refugee determination (Case No. 8908/11)
    On 17 July 2012, Israel’s Supreme Court dismissed an appeal filed against a decision by the Ministry of Interior Affairs to deport the wife of an Eritrean asylum seeker. The Appellant, the husband, currently resides in Israel due to a "temporary non-deportation" policy applied to Eritrean asylum seekers in Israel. The question before the Court was whether the Appellant's wife, Ethiopian citizen, is entitled to legally reside in Israel based on her husband's status.
    The Court noted the wide discretion given to the Minister of Interior Affairs in deciding who is entitled to reside in Israel, and emphasized that the State's obligations under international law towards refugees is an exception to that discretion. Therefore the main issue before the Court was the relevant normative framework which defines the legal status of Eritrean citizens in Israel.
    The Appellant argued that a "temporary non-deportation" policy is similar to "collective protection" or the "group determination" criteria, which establish a prima facie refugee status determination on a group basis according to the Convention relating to the Status of Refugees, 1951 (Refugee Convention). The State however argued that a temporary non-deportation policy is detached from a State's obligations under the Refugee Convention, and should not engage those obligations.
    The Supreme Court accepted the State’s position and indicated that even though a State is authorized to grant a refugee status to a group on a collective basis under the Refugee Convention, there should be a positive determination to that effect by the State. The State of Israel has not made such determination with regards to Eritrean citizens currently in Israel. Thus the Court ruled that the Appellant's status is not one of a refugee, and therefore cannot provide his wife the required basis to apply for legal residence in Israel.
    On the occasion of this appeal, the Court took the opportunity to analyze similar "temporary protection" procedures in other States in an attempt to clarify the relations between these mechanisms and the States' obligations under international law. The Court concluded from that comparative evaluation that the status of "temporary protection", as it been applied by different States, does not provide the person with equal rights as granted to a recognized refugee.   
    The Court eventually held that the "temporary non-deportation" policy applied to Eritrean citizens in Israel is different from "refugee" determination. However, the Court did not explicitly define the legal boundaries of the policy of temporary non-deportation, and confined its ruling to the Appellant arguments with respect to the Refugee Convention and its consequent rules.
    A committee to examine the status of building in Judea and Samaria has published its conclusions
    A committee headed by retired Supreme Court Justice Edmund Levy, which was appointed to examine the status of building in Judea and Samaria, has published its conclusions in early July 2012. The report has not yet been considered by the Government.
    IDF makes international law class for field commanders
    The Military Advocate General’s Office is instituting a course on international law for field commanders. The course will be mandatory for those undergoing training to become company, battalion and brigade commanders. This development is supplementary to an already ongoing process of integrating legal officers in IDF operational levels to play a key role in approving targets before operations, and in command posts during conflicts, to assist brigade and division commanders in determining the legitimacy of attacking certain targets.
    For the article in Jerusalem Post newspaper, click here.
    A new Basic Law bill instigates a debate over constitutional structure
    On April 2012 the Ministry of Justice published the legal memorandum of Basic Law: Legislation. This new proposed bill aims to regulate the relationship between the Knesset (legislature) and the judiciary, and determines explicitly the judiciary's authority to revoke unconstitutional laws and a special procedure for the legislature to re-legislate an amended bill. The proposed bill sparked once again a debate in Israel over some constitutional principles and the appropriate way to adopt a constitution.
    The recent issue of the "The Lawyer" magazine (issue No. 16, July 2012) published four different opinions regarding this bill written by some of Israel's most distinguished academics. On the one hand, those who believe that Israel desperately needs a constitution argue that even with all its flaws – specifically the authority given to the Knesset to re-legislate bills which the judiciary had revoked – this Basic Law underlies the normative foundation for a complete constitutional framework, including a norms hierarchy and a judicial review. On the other hand, those who oppose the proposed bill argue that if it is accepted, any chance of ever having a complete and agreed upon constitution, including an explicit Bill of Rights, will be lost forever. The opponents also warn about a careless use by the legislature of its authority to legislate revoked laws.
    The Knesset is currently in its summer legislative recess. Once it resumes activities in the fall, the Government would need to decide whether to promote this bill in its current form or whether in a revised one.
    For more information about Israel's Basic Laws, click here.
    Upcoming events

    Media in Conflict Seminar

    The Media in Conflict Seminar is an academic and professional communications seminar during which the participants develop skills to face the challenges of conflict-reporting. This seminar is held annually in Israel and gets together media practitioners from 31 countries. The seminar includes lectures by top experts in the field of conflict journalism, a tour of Jerusalem and the conflict area, and hands-on workshops.
    The next seminar will be held on 2-6 September 2012 at the Interdisciplinary Center (IDC) Herzliya.
    For more information, click here.

    Conference on Treaty Bodies and International Accountability for State Human Rights Obligations

    The Minerva Center for Human Rights will hold a conference on Treaty Bodies and International Accountability for State Human Rights Obligations: the UN Human Rights Committee: a Critical Analysis. The conference will include sessions on various topics such as states reports, general comments, communications, NGO's etc.
    The conference will take place in Jerusalem on 12-13 September 2012.
    For more information about the conference, click here.