Following High Court petition against blanket use of "combat detention" in the West Bank: State announced it would stop using this draconian detention clause sweepingly and against children

Since the outbreak of the horrific war on October 7, 2023, the military began making sweeping use of the Combat Detention Clause (section 33 of the Order on Security Provisions) to arrest Palestinians in the West Bank for offenses under security legislation, even though the Clause is intended to apply in only exceptional circumstances. The Clause is intended for "anyone arrested in the Area [i.e., the West Bank] during an operational activity to combat terrorism, whose circumstances of arrest give rise to concerns about them that they endanger or may endanger the security of the Area, the security of IDF forces or public safety”. The Clause allows holding a person in custody for a full eight-day period before they are brought before a judge and without their being permitted to meet with a lawyer for 48 hours from the time of arrest. However, the exception has become the rule, and the Clause has been applied to adults and minors, anywhere in the West Bank, irrespective of the circumstances of the incident and for every offense in the security legislation.

On March 6, 2024, the Association for Civil Rights in Israel, HaMoked and the Human Rights Defenders Fund petitioned the High Court of Justice (HCJ) against the policy of sweeping use of the Combat Detention Clause. The organizations requested that the Clause be abolished or at least reduced, so that it would not apply to minors, and could be challenged in court before the detention order expires. The organizations also requested that the military desist from this detention policy whereby all arrests in the West Bank are considered as combat detentions, as part of which protected residents are detained for 8 days, forbidden to meet with a lawyer, and have no way of challenging their detention, some of whom are not even interrogated during this period, and clearly pose no risk to security. The organizations argued that this policy violated the rights to liberty, dignity and due process, and exposed every person in the West Bank to arbitrary arrest simply on the basis of being Palestinian. This is a grave situation in itself, but it is even more so given the harsh conditions in the detention facilities, which have deteriorated severely since the start of the war.

On April 18, 2024, the State filed an updated notice to the Court, announcing a significant change in the policy of using the Combat Detention Clause, whereby it would only be used for adults arrested on suspicion of committing security offenses who are required for security interrogations by the Israel Security Agency (ISA), or for ISA detainees who are ultimately to be held in administrative detention. Otherwise, the State announced, suspects detained for interrogation by the Israel Police would be detained for 96 hours or less (if it is a criminal offense or depending on the detainee’s age) and not for eight days, even if it is a security offense. It was also decided that illegal aliens in the West Bank (primarily Palestinians whose official address is the Gaza Strip) would also be detained for 96 hours rather than eight days. As stated, it was announced that minors would not be arrested under the Combat Detention Clause.

In light of the significant changes that took place following the petition, the Court decided to delete it, ruling that “it seems that military entities have acknowledged that with regards to some of the cases raised in the petition, there was in fact a failure in the conduct of the forces, and that it even exceeded the military’s regulations for using this Clause”. The judgment of November 4, 2024 endorsed the reduction in the use of the Combat Detention Clause and the cessation of its use for minors, as well as the establishment of “periodic control mechanisms, intended to ensure that military detention facilities no longer admit Palestinians arrested contrary to the regulations.