The President of the Military Court of Appeals, Judge Col. Netanel Benisho, leveled sharp criticism at the IDF Central Command for issuing dozens of administrative restriction orders against Jews over the past year.
In July, Judge Col. Benisho ruled on an appeal filed by legal aid society Honenu Attorney Menasheh Yado regarding an administrative restrictive order served by the GOC of the Central Command against a Jewish youth residing at Givat Baladim, a hilltop community adjacent to Kochav HaShahar in the Binyamin region. The youth was banned from entering Judea and Samaria, except for Kiryat Arba, which meant he was prevented from tending his flock which he keeps in the area of Kochav HaShahar. The duration of the order was extended after it had expired once, which was the reason for the appeal.
More than 50 administrative restriction orders were issued by the GOC of the Central and Home Front Commands over the past year against Jewish youths.
Judge Col. Benisho accepted Yado’s argument that the Central Command systematically withholds the right to a hearing before serving the administrative orders against Jewish subjects, and called on the authorities to make sure that the right to a hearing is observed.
The right to a hearing is granted by law and may be revoked only under unusual circumstances, when an individual poses an immediate danger. Attorney Yado argued that the unusual had become the rule and the Central Command admitted that not one of the Jews who had been served with an administrative order over the past few years had received the opportunity of a hearing before the order was served, including in cases of extending an existing order.
Judge Col. Benisho wrote in his decision that “the commanding officer must be conscientious in granting [detainees] the opportunity to plead their case, prior to serving them with restriction orders, unless there is significant cause to grant this right only after the order has been served. … Closely adhering to the above-mentioned guidelines is especially advisable when dealing with the extension of an order, as it is in this case. In such situations it is reasonable to assume that the suspicions raised by the representative of the commanding officer are weaker. Therefore it is expected that there must be even more diligence in correctly implementing the right to appeal.”
Judge Col. Benisho also called on lawmakers to require mandatory appearance in court in every case of an administrative restriction order, as is currently done in the case of an administrative detention order: a deliberation must be held within 24 hours at a district court.
The judge also recommended to the Knesset: “It would be proper for lawmakers to institute a mandatory judicial review similar to the one existing concerning administrative detention orders.”
Judge Col. Benisho also ruled that, after “lengthy consideration,” the order currently being appealed will not be canceled, due to confidential information provided by the Shabak. However, he also demanded that in order to extend the order again, the army and the ISA must present “intelligence information which fundamentally alters the evaluation of dangerousness,” or there must be “a fundamental change in the security situation of the district.”
Honenu Attorney Yado said in a statement: “This is the first step in limiting the discretion of a GOC in issuing [administrative restriction] orders. We have no doubt that many of the orders are disproportionate and will not stand the test of a [trial in civilian court]. Concerning the procedure, the court reminded the GOC that young residents of Judea and Samaria also have legal rights to a court deliberation, and compelled the GOC to hold hearings prior to serving [administrative restriction] orders, something which the GOC, contrary to the requirement of the law, had systematically neglected over the past year.”