Israeli Lawmakers May Grant Defense Chief Broader Powers in West Bank

The defense minister would have greater authority to issue administrative orders often used to bar right-wing activists from the West Bank

A protest by right-wing activists in Kfar Arah in northern Israel in December, 2016.
Rami Shllush

The Knesset Constitution, Law and Justice Committee will vote Wednesday on a bill that would give the defense minister broader authority to issue administrative orders that bar people from certain areas and impose various other restrictions.

The committee’s legal adviser is seeking to moderate the bill, which is being presented by the government for a second and third hearing.

Restrictions of this type are a significant tool employed mainly to bar right-wing activists from the West Bank.

The bill proposes that the authority to issue administrative restrictions, including removal from certain areas, be subject only to administrative oversight by the courts, and that the bar for issuing such orders be set very low in terms of the required evidence. Such orders are currently not enshrined in law but are based on ordinances dating back to British Mandate times.

The Constitution, Law and Justice Committee’s legal adviser, Gur Blay, wants to introduce changes that significantly curb the bill.

The state’s original proposal is broadly worded and vague. For example, one reason for issuing an administrative restriction is “a nearly certain possibility that serious harm will be done to state security.” Blay said that following previous criticism of the bill, the cabinet had agreed to moderate it, but had not done so sufficiently.

The state is proposing two classes of administrative restriction – “severe” – including full house arrest or barring a person from his or her home – and “regular.” According to the original proposal, such restrictions are within the defense minister’s purview to impose.

The government is now prepared to change the bill so that in the case of the “severe” orders, the defense minister may authorize such detention only at the request of a senior employee of the Shin Bet security service. Also this, authorization would have to be filed with the consent of a senior prosecutor.

In contrast, a request for administrative detention – detention without trial – must be approved by the Shin Bet chief and either the state prosecutor or the attorney general.

The state wants the defense minister to be able to approve “regular” administrative orders without the need of outside approval. Such orders could deprive individuals of their livelihood or bar them from their homes.

Blay advised the committee that “in light of the severity [of the restrictions] and the limitations on liberty inherent in them” the orders “should be authorized by the same official who approves administrative detention. We propose that one official, outside of the Defense Ministry, also see the regular restrictions to ensure objective oversight by the executive branch.”

The state originally wanted the bill to let the defense minister issue such restriction orders “for reasons of state security or public safety,” based on a “reasonable assumption.” Now the state is willing to compromise so that the “severe” orders will be issued only in cases of “immediate possible harm to state security or to the public,” with the “regular” orders issued only based on “reasonable possibility” of such harm.

The state has also proposed that a court for administrative affairs oversee such administrative orders. This would mean that the courts could annul such orders only if they are “patently unreasonable,” without examining them in detail. However, the attorney general wants the courts to have the authority to discuss the orders in detail and to intervene when necessary.

The government wants rules governing “regular” orders to be couched in very general terms allowing the defense minister broad discretionary powers. For example, the state wants the defense minister to be able to issue “any required order or restriction for reasons of state or public security.” The attorney general opposes this clause.

Committee chairman Nissan Slomiansky told Haaretz that the bill in its current form is the result of a compromise with the government and is already softer than the previous version, but the committee will meet Wednesday to try to soften the bill further to avoid impairing civil rights. Still, people familiar with the committee’s work said it was unlikely that the bill would be further softened.

Attorney Menashe Yado of the group Honenu, who represents many clients against whom administrative orders have been issued, told Haaretz that the bill would significantly limit his ability to defend his clients from such orders.

The bill would lead to “a situation in which there is no effective judicial oversight of any kind over restriction orders, and that is unreasonable especially regarding international law, law in Judea and Samaria, and the criminal code,” Yado said, referring to the West Bank.