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Lifting the Veil of Secrecy: Judicial Review of Administrative Detentions in the Israeli Supreme Court

PDF · Shiri Krebs · Jun-4-2012 · 45 VAND. J. TRANSNAT'L L. 639 (2012)

All around the world, hundreds of individuals are constantly subjected to administrative detentions designed to prevent them from committing future atrocities. Generally, the main protection against arbitrary and unjustified administrative detentions is judicial review.  Nonetheless, judicial review of administrative detention proceedings suffers from inherent difficulties and is typically based on ex parte proceedings and secret evidence. In spite of these difficulties and based on a few renowned cases, it is widely accepted in the scholarly debates that the Israeli judicial review model is robust and effective. Therefore, prominent international law scholars often recommend the adoption of this model in various other states, including the United States, and claim that it is best suited to fulfill international human rights law requirements. Nevertheless, as this study reveals, out of the 322 cases that were decided by the Israeli Supreme Court from 2000 to 2010, not even a single case resulted in a release order or in a rejection of the secret evidence.

This research provides, for the first time, a systematic empirical analysis of these 322 cases.  Since the judgments in this field are usually short and laconic, providing very little information on the process, the case law analysis is complemented with in-depth interviews with all of the relevant stakeholders: Israeli Supreme Court Justices, defense lawyers, state attorneys, intelligence officers, and Palestinian detainees. The research demonstrates a meaningful gap between the rhetoric of the few renowned cases and actual practice. In particular, it reveals the difficulties courts face in attempting to challenge secret evidence. Furthermore, the research discovers the formation of “bargaining in the shadow of the Court” dynamics and the adoption of alternative dispute resolution methods by the Court, such as mediation and negotiation.

Put together, the inclusive case law analysis and in-depth interviews provide extensive information on the actual practice and inherent weaknesses of judicial review of administrative detention cases; they lift the veil of secrecy that currently overshadows this sensitive and important judicial process; and they cast doubt on arguments that Israel’s detention model is one that should be emulated by other countries.

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