Security and Criminal Law in Judea and Samaria

 

By virtue of the State of Israel's authority and obligation to protect its civilians, it is entitled to take varied measure in order to defend itself from all domestic and external threats to its national security. Since September 2000, the State of Israel has been confronted by a massive and seemingly incessant wave of Palestinian terror. After hundreds of suicide bombings and terrorist attacks, in 2003 the Israeli government began the construction of a security barrier in an effort to prevent Palestinian terrorist infiltration.

 

The question of constructing the Security Barrier has been discussed by Israel's High Court of Justice. The Court examined the issue in light of International law and Israeli administrative law determining, amongst other things that the military commander is authorized to assume possession of land subject to belligerent occupation for strategic reasons if it is a military necessity. It was held that the security barrier falls within this framework. Such being the case, there is no breach of private ownership which would have undermined the legitimacy for its construction. The Court accepted the State's position, emphasizing that the barrier's construction is motivated by security concerns rather than any political agenda.

 

Concerning the barrier's route, the Court held that the military commander is responsible to find the appropriate balance between human rights and the local populaces' needs on the one hand and security issues on the other. For this purpose, the Court makes use of the principle of proportionality, according to which it is necessary that the achievement of legitimate military objectives (in our case, state security, protection of its citizens and the region) outweigh the impingement of the rights of the individual (in our case, the freedom of the local inhabitants subject to belligerent occupation).

This is the area between the Security Barrier and the border of Judea and Samaria, in areas that the Barrier is located inside Judea and Samaria defined as "closed military area". In this area the permit requirement is implemented – meaning: the entry of those who are not residents is conditional upon permit holding.

 

The definition of the "seam zone" as a closed military area, whose entry is supervised, controlled, and requires a permit (excluding permanent residents) enables the army to contend with security threats from the region, and particularly penetration by terrorists and people who enter Israel illegally.

In accordance with the provisions of International law, the military commander is authorized to requisition private land in the region if it is determined that such action is imperative for military necessities, such as establishing an army installation.

 

The transfer is carried out within the framework of staff work, comprehensively examining the military-security need with regard to the breach of the proprietor's rights. Within this framework an examination is conducted raising the possibilities of achieving the same results by alternative means that do not require land requisition. Like all reviews, they are to be tested by the existing ground perception. In this way damage to the owner or the land itself, is mitigated as much as is feasible

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If it is found that there is a military necessity in the requisition, this is implemented after hearing the owners' objections. The requisition is temporary, and the requisitioned property's owner is entitled to compensation and rent payments for use following an act of confiscation.

In light of the security threat facing Israeli settlements in Judea and Samaria, it was decided a number of years ago to protect a number of settlements by establishing special security areas around them.
There are a number of communities, around which the special security area erected, is composed of a peripheral fence and around other communities a technological special security area composed of sensors and cameras was created. The special security areas' range is designed to provide broad defense to the settlements and therefore building and dwelling are prohibited there.

 

At the time of establishing these areas in Judea and Samaria, their procedural organization was consolidated regarding Palestinian resident entry for in order to allow them to work their agricultural lands. All those with proprietary interests in agricultural lands are entitled to work those fields that lie within the area. Furthermore, those of his nuclear family and his workers are entitled to enter this area in order to work the fields.

A number of criminal justice systems apply to Israelis living in the region.
First and foremost, they are bound by the (previously mentioned) enforceable laws and security legislation which applies in the region. 
Furthermore, the Israeli Kenneset (parliament) has de facto implemented the general Israeli provisions of criminal legislation upon those citizens residing in Judea and Samaria.  
This was achieved by granting jurisdiction to the Israeli courts "…to judge according to the applicable Israeli law, a person who is located in Israel for his/her acts or omissions which occurred in Judea and Samaria and also an Israeli for his/her acts or omissions which occurred in land under the Palestinian Authority if the act or omission were offences if occurring within the jurisdictional scope of the Israeli courts" (article 2(a) The validity extension law of the emergency regulations ordinance 1967).


 
As a result of applying domestic legislation, Israelis who commit offences in Judea and Samaria are usually tried in Israeli courts.
Several provisions of the local law and the security legislation of a domestic character (breach of planning and zoning laws, business licensing laws etc., committed by Israelis) are also enforceable through prosecution in the Courts for Local Affairs situated in the major settlements.

 

The Security Provisions Order of 1970, which comprises the "Criminal Code" of the Judea and Samaria region grants IDF soldiers the authority to delay and detain all persons suspected of committing an offence. This power may equally be utilized against both Palestinians and Israelis.

 

The military legislation also empowers members of the Israeli Police Force to delay and detain all persons suspected of committing an offence. In practice, where possible, preference is given to the Israeli police in carrying out arrest. This procedure requires every soldier to act immediately in order to prevent or halt the committing of crimes by Israelis, delaying or detaining suspects until the arrival of the civilian police, and according to need, securing the area.

 

The directives' main guidelines in the matters of delay and detention are as follows:


1) A soldier is authorized to detain all persons considered suspect in having committed or are in the process of committing offences, or possess pertinent information in relation to planned or committed offences or are likely to do so in the near future.

2) It is permitted to detain a person for up to 3 hours. A police or military officer holding the minimum rank of Colonel has the power to extend this detention to an additional 3 hours. With the exception of reasonable force being employed in order to conduct an arrest should a suspect resist; the use of force is prohibited in conducting the detention.

3) A soldier is authorized, whilst using reasonable force, to detain all persons that are suspected of committing an offence, when at the time, circumstances do not permit a satisfactory delay. The soldier is responsible to transfer the detainee at the first possible instance to a detention facility for investigation and the issuing of a remand order.

4) Generally the authority to issue a remand order is given to a police officer for a period up to 8 days from the time of arrest.

5) In extreme situations, where a person has been detained whilst the IDF was conducting operational missions in the war against terror, and the circumstances of the arrest raise suspicions that the person poses a threat to the security of the region, to IDF forces or to the Israeli public, an IDF officer of Captain rank (and higher) is authorized to issue a remand order against him for a period of 8 days after being granted permission by the Prosecutor of Judea and Samaria.

An army commander in Judea and Samaria is authorized to declare a specific area as a closed military zone on account of the need to protect public order and security. The legislative provision for this authority is to be found in article 90 of Decree of Security Provisions which states:

  • An army commander is authorized to declare in reference to any area that they are closed (hereafter closed area).
  • In a closed area as mentioned in subsection (a), an army commander is authorized to determine one of the following instructions applicable.
  • No entry or remain of stay shall be granted to a person in the closed area…"   


By virtue of this article, an army commander is authorized to instruct as requisite by security demands, the closure of a particular area and derivatively prohibit specific persons or groups from entering or remaining in it.
The use of these measures, based upon regional legislation and International law, is limited to critical security risk situations.
A closed area order may be directed against the general public, particular groups or specific individuals.

These are administrative injunctions (issued by the IDF military commander in Judea and Samaria) by virtue of security legislation and in accordance with his obligations and responsibilities to maintain security and keep regional public order. These injunctions limit the movement of those persons served in Judea and Samaria. The commander will only issue an injunction where there exists credible information, according to which the activities of the individual pose a serious danger to regional security and public order.

With regard to citizens who have been served with administrative limitation injunctions there are a number of means by which they may appeal against them. First, all citizens are entitled to deliver submissions to the IDF military commander in Judea and Samaria in relation to the limitation injunction. Second, all citizens who have been issued with a permanent injunction are legally entitled to submit an appeal to the appeals committee, presided over by the President of the military court of appeals for Judea and Samaria. Third, if the appeals committee rejects the claim, there is the possibility for the applicant to submit a petition to the High Court of Justice.

The issuing of an injunction may affect the manner in which the individual lives by imposing limitations. However it is important to emphasize that the court order is only written after clarification that it is a necessary, reasonable and proportionate means intended to prevent serious danger, foreseen in the citizen's activities. It is also important so note that the use of limitation injunctions against Israeli citizens in Judea and Samaria is done in a proportionate and cautious manner and only in the absence of other less intrusive measures that can obtain the same result.

The vital texture roads are an inseparable part of the Security Barrier project and are intended essentially to substitute other roads whose access was obstructed or disrupted following the construction of the Barrier. These roads are paved for the Palestinian population with the purpose of enabling them to speed the flow of traffic and the affected "vital texture", continuous movement as much as possible and comfortable connections between settlements and the regional cities in the area. The Supreme Courts' decision recognized the significance of the "vital texture" roads as an important and inseparable part of constructing the Security Barrier.