Preventive Detention for National Security Purposes in Israel

Dvir Saar & Ben Wahlaus, Preventive Detention for National Security Purposes in Israel, 9 Journal of National Security Law & Policy 413 (2018)

70 Pages Posted: 27 Nov 2018

See all articles by Dvir Saar

Dvir Saar

International Law Department, Israel Defense Forces (IDF)

Ben Wahlhaus

International Law Department, Israel Defense Forces (IDF)

Date Written: July 9, 2018

Abstract

Since the beginning of the twenty-first century, democratic states have been increasingly forced to confront the threat of cross-boundary terrorism. One tool which affected states have been employing for reasons of national security is preventive detention– a security measure which has been consequently brought into the limelight in a significant way. The purpose of this article is to contribute to the ongoing legal deliberation on the issue by presenting the Israeli experience regarding preventive detention; experience acquired while contending with a wide range of national security threats over several decades. Israel employs three domestic legal frameworks to regulate preventive detention, each designed to contend with the specific challenges stemming from the different contexts in which such detention may be required, and each of which corresponds with a different legal regime within international law: (1) the Emergency Authorities (Detention) Law 1979, which was designed primarily for use as a domestic security measure, and which is typically applicable to individuals located within Israel's territory who pose a severe threat to state security; (2) the Incarceration of Unlawful Combatants Law 2002, which regulates the internment of foreign nationals in the context of a trans-boundary armed conflict involving a non-state actor (NSA); and (3) the Military Order Concerning Security Provisions (Consolidated Version) (no. 1651) 2009, which is applicable in the military governance context in the West Bank.
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This article explores the three frameworks, by describing and analyzing the different legislation and conducting a comprehensive survey of the relevant case law (including previously unpublished cases). It focuses on two fundamental aspects – the authority to detain (and therein, the entities possessing this authority, and the grounds under which may it be utilized) and the main procedural safeguards for preventing the misuse of this authority. The article also includes an overview analysis of each legal framework against the backdrop international law. It concludes with a comparative analysis of the three frameworks. The lessons drawn from the diverse Israeli experience and presented in this article, may serve other countries dealing with security challenges, whether external or internal, posed by organizations and individuals, as well as contemporary international initiatives concerning detention.

Keywords: Administrative Detention, Preventive Detention, Security Detention, Israel, Unlawful Combatants, Unprivileged Belligerents

Suggested Citation

Saar, Dvir and Wahlhaus, Ben, Preventive Detention for National Security Purposes in Israel (July 9, 2018). Dvir Saar & Ben Wahlaus, Preventive Detention for National Security Purposes in Israel, 9 Journal of National Security Law & Policy 413 (2018), Available at SSRN: https://ssrn.com/abstract=3270294

Dvir Saar (Contact Author)

International Law Department, Israel Defense Forces (IDF) ( email )

Israel

Ben Wahlhaus

International Law Department, Israel Defense Forces (IDF) ( email )

Israel

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