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Part Six - The Freedom of the Citizen and Internal and External Security
Part One
Civil liberties and internal security (2/4)
Captivity for enemies instead of administrative detention for everyone
There is an inherent tension between individual freedom and the reality of a state of war. Wars, by their very existence, do not exist between individuals but between collective entities. In war, the absolute obligation to protect the rights of individuals is rejected by the constraints of reality and by the right and duty of every state to defend itself and its citizens. This principle is well understood and accepted in the world, according to which norms of attitude to the enemy are determined - both for combatants and for the civilian population.
Among other things, this principle enables the state to capture its enemies. The state can not judge and punish an enemy for fighting it, so long as he is fighting according to accepted moral norms and the laws of war. However, it can capture him or restrict his actions and movement in other ways in order to maintain its security and the security of its citizens and fighters. In wartime, captivity is considered the most just and humane response to the enemy's threat to state security.
For decades, despite the reality on the ground, the State of Israel refuses to recognize that it is at war with enemies who seek to harm its sovereignty or destroy it. Since the state does not recognize war, it does not recognize enemies as enemies. The state treats its enemies as criminals and takes care of them through its legal system. However, the legal system is not prepared to deal with enemies, as the authors of the laws of warfare were aware. To deal with this, the state adopted the hybrid solution called administrative detention.
Administrative detention is a tool that enables a state to hold a person in prison conditions for long periods and to interrogate him without trial, without presenting any evidence against him, without being accused of a crime, and without granting the right to consult with lawyers. This severely violates the right of administrative detainees to due process.
The power that the ability to use administrative detention gives the state is a corrupting power. The state can use it to bypass all the mechanisms that allow for a fair trial, without any transparency or criticism. A free country cannot hold such power.
It is a mistake to think that this tool serves the state only against enemies. Although most detainees are suspected of terrorism, some of them are suspected of other offenses that are not warlike in nature and sometimes not even violent. The possibility of using administrative detention against organized crime has also been raised more than once, inter alia, by Yitzhak Aharonovitch as Minister of Public Security. As long as the state has the right to make administrative detentions, there is no real way to limit their use.
Zehut will prohibit the use of administrative detention. The State of Israel will officially recognize that it is at war and will learn to distinguish between enemies and criminals. Enemies will be captured or otherwise restricted, depending on the circumstances. They will not be charged or judged or accorded the status of criminals unless they violate the laws of war. Criminals will be tried in the criminal justice system and will be brought to justice, while maintaining their right to a fair trial. This does not mean that punishing them will be less severe than the measures taken against enemies, including enemies who have committed crimes, but it will not be carried out in the same framework.
The term "harm to state security" is too broad and does not fit the definition of the enemy. The state can declare foreign states or armed groups operating against Israel which are not associated with a government as hostile organizations. An enemy shall be a person fighting in the framework of a hostile organization or whose loyalty is given to it, a person who acts to harm Israeli sovereignty or endanger the existence of the state for hostile purposes[6], or a member of an organization with those objectives.
Captivity is not a means of punishment and it should not be used as such. It is intended solely to prevent the enemy from harming the state, and there is nothing in captivity that expresses a moral stance towards him. The state will have to protect the safety and dignity of its captives. The State shall be entitled to interrogate[7], hold or exchange them in the context of an exchange of prisoners. In general, at the end of the war, warring parties release their captives, unless those prisoners are tried for violations of the laws of war.
The state has the right to judge enemies who have violated the laws of war when they acted against it, even while they are in captivity. The customary laws of war also recognize this. Anyone who is accused of violating the laws of war will be entitled to a fair trial, although he will not be tried in the civil justice system and the manner in which his right to a fair trial will be guaranteed will be different from the manner in which this right is guaranteed to the citizen who commits a crime. There are universally accepted definitions of justice for those who violated the laws of war and the State of Israel will judge according to these.
We must recognize war - and win it. War leads to the inevitable violation of the rights of the individual, both of the citizens of the state and of non-combatants in areas controlled by the enemy. Non-recognition of the state of war and its slow management and low intensity for decades have led to an ongoing erosion of the status of individual rights, in addition to a large amount of physical and psychological damage, as well as damage to property and to the economy that could and should have been prevented. In order to end the suffering from the ravages war, we must win the war - and bring peace.
[6] Hostile goals means the goals of hostile organizations. The existence of hostile goals is essential for defining a person as an enemy. A person whose actions were not taken in order to promote hostile goals is not an enemy, but a dangerous criminal who must be severely punished.
[7] This chapter does not relate to legitimate interrogation methods in different cases. This is a subject for another discussion.
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