Last summer, the Israeli Supreme Court rendered a landmark judgement, establishing for the first time an obligatory minimum standard for the personal space allocated to inmates—convicted prisoners as well as detainees—in the Israeli correctional system. The judgment was issued in response to a petition to the High Court of Justice by Israeli human-rights organizations and an academic law clinic, challenging the severe overcrowding in Israeli jails and the lack of any government plan to address the problem. (Full disclosure: I previously worked as an attorney for one of the organizations, the Association for Civil Rights in Israel, and was involved in early stages of the litigation.)
At the time of judgement, the average cell space per inmate stood at just 3.16 square meters (including the bathroom and shower area, if attached to the cell), with no fewer than 40.5 percent of all prisoners allocated less than three meters of living space. In a truly remarkable step, the court ordered the government to take immediate measures to alleviate the overcrowding, in two stages: first, by ensuring within just nine months that no prisoner be provided less than three square meters of living space (excluding sanitary facilities); and second, by ensuring within eighteen months that each inmate be given at least four square meters of space (or 4.5 with the bathroom and shower).
Throughout the proceedings, which lasted more than three years, the government dragged its feet, failing—despite repeated prodding by the court—to provide a concrete strategy for improving conditions within a reasonable time frame. Once the judgement came down, it found itself scrambling for implementation measures, and it soon became clear that it would not meet the court imposed deadlines. Now, almost a year later, the issue of implementation has found its way back to court, raising—among other issues—the question of how the judgement will apply in the national security context.
Minimal Personal Space: The Core of an Inmate’s Right to Dignity
In its judgement, the court relied on the principle, long established in Israeli jurisprudence, that incarceration does not justify the curtailing of fundamental rights beyond those limitations inherent in a prison sentence. In the past, this principle led the court to uphold an inmate's right to vote in national elections, to publish articles in the newspaper and to receive private medical care from doctors outside the prison system. In this case, the court held that overcrowding and lack of personal space violates the core of an inmate's right to dignity, one of the explicit rights enshrined in Israel's constitutional Basic Law: Human Dignity and Freedom. In addition, the court held that an inmate’s statutory right to be incarcerated in “suitable conditions which do not violate their health and dignity” includes the right to a minimal amount of personal space.
The specific measurements adopted by the court in its two-stage ruling drew heavily from the international standards developed by the European Court of Human Rights and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), regarding circumstances in which lack of personal space can be said to constitute inhuman and degrading treatment. The court also drew from existing Israeli regulations specifying that new prisons (as well as, as far as possible, facilities undergoing renovations) should provide at least 4.5 square meters per inmate.
The court was partially prompted to issue such a dramatic ruling out of frustration with the little progress that has been made towards improving prison conditions, despite these regulations being on the books for many years. Justice Elyakim Rubinstein, who issued the decision as part of a three-judge panel on his very last day on the bench—Israeli justices traditionally hand down particularly significant decisions, forming part of their legacy, on the occasion marking the end of their tenure—noted his personal experience conducting surprise inspections of prisons over the years, which left him dismayed at substandard physical conditions.
Implications for Criminal Justice Reform
In addition to its expected impact on prisoners’ living conditions, the judgement appears poised to have significant implications for the criminal justice system as a whole. While the petition was pending, the government formally adopted several recommendations of a public commission set up in 2011 to examine punishment and treatment options for offenders. (The commission, headed by former Supreme Court Justice Dalia Dorner, is known as the “Dorner Commission.”) Geared towards promoting an evidence-based approach to punishment that would reduce the use of incarceration, the commission report called, among other things, for the establishment of a research unit in the Justice of Ministry to evaluate punishment policies—especially proposals to create new offences or increase sentences; the expansion of various alternatives to imprisonment; and greater reliance on mechanisms such as community courts to facilitate rehabilitative efforts.
In response to the court’s ruling, the government announced that in addition to building new prisons, it would focus on implementing the measures recommended by the Dorner Commission, with the goal of ultimately reducing the number of inmates. It also announced that the Attorney General had decided to adopt the recommendations of a task force set up to consider the implications of the Dorner report for prosecutorial policy—including the key recommendation that in principle, where appropriate and possible, rehabilitation should be preferred to incarceration. Another committee was set up to determine the practical steps necessary to implement this principle. Prison privatization is considered unconstitutional in Israel: several years ago, the Supreme Court struck down a law that authorized the government to build private prisons. So the government must now choose between investing the taxpayers’ money in new prisons and exploring more cost-effective alternatives.
But despite this announcement, as the nine-month deadline drew nearer, the state went back to court to demand an extension of the timeline set in the 2017 judgment, presenting the justices with an ultimatum: If forced to do so, it would implement the decision on time, but only at the cost of a mass release of prisoners that would endanger public safety. It then belatedly presented a plan that would enable it to meet the ruling’s requirement that each inmate have 4.5 square meters by 2027, ignoring the more immediate issue of how it would provide each inmate with at least three square meters in the short term.
Application of the Judgement to “Security Detainees”
The court remained unsatisfied and ordered the government to present a concrete strategy for achieving the first, immediate prong of the judgement—requiring three square meters per inmate—within a reasonable timeframe. And it was then that the government raised an issue it had previously sidestepped: the question of how the judgement would be applied to “security detainees” subject to interrogation by the ISA (the Israel Security Agency, colloquially known as the Shin Bet).
The original judgement took pains to emphasize that it would apply equally to all inmates in Israeli prisons, including “security prisoners” detained or imprisoned for terrorism or national security related offences—almost all of whom are Palestinian, and many of whom are tried in military courts in the West Bank. In general, inmates classified as “security prisoners” are subject to a special incarceration regime in Israeli facilities: They are held separately from other prisoners, their contact with the outside world is severely regulated and they do not participate, as a rule, in rehabilitation programs. Security detainees who are under interrogation also face a plethora of restrictions on their fundamental rights, from the right to meet an attorney to the right to be promptly brought before a judge (especially when they are tried in the military courts). In principle, however, special restrictions placed on security prisoners must be justified with at least a plausible nexus to actual security or other relevant considerations. It thus seemed that when the court emphasized that its judgement would apply equally to security inmates, it was merely stating the obvious: that in an issue implicating the core of the fundamental right to human dignity, and devoid of any security implications, there could be no basis for any distinction.
Security prisoners account for over a third of all inmates and tend to be concentrated in prisons in which the living space is particularly cramped, under three square meters per inmate. For this reason, once the government got down to the nitty-gritty of actually implementing the court’s decision, it became apparent that any practical solution to the problem of overcrowding would have to focus special attention on facilities housing security prisoners. The government emphasized that it viewed the various measures intended to reduce the number of inmates as largely inapplicable to this population, deemed too dangerous to release, and would therefore focus on increasing prison capacity. This assertion could itself be subject to challenge, given the heterogeneity of the “security prisoner” population, which includes—beyond hard-core convicted terrorists—administrative detainees and Palestinians imprisoned for a wide range of offences.
Cramped Living Space as an Interrogation Method?
When pushed by the court, the state finally presented a strategy to achieve the first prong of the judgement by April 2019. The plan was criticized in part by the petitioners for relying on the creation of tent facilities for some security inmates, a step that could lead to a worsening of conditions. In addition, the government suddenly raised a previously unmentioned caveat: Its plan would not apply to cells housing security detainees under ISA interrogation. The government rather sheepishly asserted that the issue had been neglected in “error” and that it raised a slew of questions which could not be fleshed out in open court. As often happens in security cases, it asked to present classified materials ex parte, without the organizations and their attorneys present. However, it presented the petitioners with an unclassified summary of its arguments, which on its face offers a disturbing glance into the role of restricted personal space in the conducting of security related interrogations.
The summary argues that applying the judgement to detainees subject to ISA interrogation would inflict “significant and broad damage to the ISA’s ability to collect intelligence and foil terrorism.” First, it would lead to a dramatic reduction in the number of preventive interrogations conducted each year. Second, it would harm the ISA’s ability to provide real-time intelligence to troops in emergency situations, in particular those involving large-scale violence and terrorism. Third, it would harm the ISA’s ability to utilize methods which rely on the unique features of existing facilities, leading to prolonged interrogations and damage to the quality of the resulting intelligence product. In addition, the summary argued that the judgement would impinge on the supervision of inmates who require medical care or are in danger of self-harm.
Perhaps most significantly, the summary emphasized that the foreseen harm to ISA’s interrogation capabilities was not merely a matter of resources, but rather flowed from “a broad range of considerations and operative and intelligence constraints.” In other words, even a sufficient budget to immediately construct new cells would not solve the problem created by the judgment. While it is difficult to reach firm conclusions on the basis of such a partial summary, this line of argumentation would seem to fly in the face of the ISA’s longstanding claim that conditions of confinement in interrogation wings are determined by the Israel Prison Service, and not by the ISA itself. Human rights organizations, for their part, have long alleged that harsh conditions in interrogation wings, including cramped cells, form an integral (and illegal) part of the ISA interrogation strategy.
During the last hearing, which took place in May 2018, it became clear that the government was making two alternative arguments: First, that the special issues raised by ISA interrogation wings had not been before the court, and that its judgement should therefore be interpreted as excluding them; and alternatively, that a whole different timeline would need to be considered for these cells. Under pressure from the court, the petitioners consented to the ex parte hearing, after which the government was ordered to provide additional information within thirty days. (In general, the High Court of Justice may consider classified materials in judicial review cases with the consent of petitioners, and a lack of consent can result in a presumption of legality being applied to the government’s actions.) It remains to be seen how the court will resolve this issue. Notably, Justice Hanan Melcer expressed doubts about the state’s position in the most recent hearing and commented that “we talked [in the 2017 judgment] about all detainees, the situation there in terms of living space is the worst.”
Room for Cautious Optimism
All in all, the 2017 judgement represents a tremendous victory for the human rights of prisoners and detainees in Israel. There is room for cautious optimism that it will make a real difference in the lives of inmates and provide the impetus for much needed criminal justice reform. At the same time, the government’s response to the judgement once again raises the question of the treatment of security detainees under ISA interrogation, the effectiveness of the prohibition on torture and inhuman or degrading treatment and the government’s commitment to human rights, including detainees’ rights, in the security context.