Opinio Juris

The Supreme Court yesterday upheld the constitutionality of the law allowing for the detention of "unlawful combatants," which Israel uses to hold Hezbollah fighters.

Supreme Court President Dorit Beinisch and Justices Edmond Levy and Ayala Procaccia rejected an appeal by two Gazan Palestinians who were detained after their involvement in terror activity on behalf of Hezbollah was proved.

The Unlawful Combatants Law authorizes the state to detain foreign nationals who belong to terror organizations or have participated directly or indirectly in hostile actions against the State of Israel.

Its goal is to prevent their continued activities.

Beinisch wrote in the verdict that although the law involves substantial harm and the suppression of personal freedom through administrative detention, the harm is proportional.

She noted that it was passed in a "harsh security reality" that justifies the violation of to personal freedom.

"The law's harm to the constitutional right to personal freedom, although substantial, is no greater than necessary," Beinisch wrote.

"Therefore, we have concluded that the law meets the criteria of the limitations ruling and there is no constitutional grounds to intervene in it."

Yet how powerful can this judicial review be? Not only does the Illegal Combatants law create a new category not recognized in international law, it reverses the burden of proof. Once an order is signed by the Chief of Staff, the burden of proof is on the defendant: he has to prove to the court that he is not an enemy combatant. Moreover, he is expected do this when the charge against him is based solely on classified evidence, which he is barred from examining and is therefore unable to challenge. One of the defendants told the court he was arrested in his house, for no reason, and added that if he were exposed to the evidence against him he would be able to respond. But that, of course, did not happen. After the defense lawyers argued their case, they and their clients had to exit the courtroom, leaving the security services’ representatives to reveal their secret evidence to the judge.

Navy Lieutenant Commander Bill Kuebler said in a statement sent to reporters he considers the notes crucial to the defense of his client, Canadian Omar Khadr, during his upcoming murder trial by a special military tribunal at the US naval base.

Kuebler said the instructions were handed down to interrogators from the US Department of Defense as part of a standard operating procedure or "SOP" directive that he obtained from prosecutors last week.

If they were carried out, US interrogators may have "routinely destroyed evidence" that might have been used to defend the Khadr and other detainees, Kuebler charged.

"If handwritten notes were destroyed in accordance with the SOP, the government intentionally deprived Omar's lawyers of key evidence with which to challenge the reliability" of alleged confessions made to military interrogators, Kuebler said.

He cited in particular one passage of the directive to military interrogators stating that "this mission has legal and political issues that may lead to interrogators being called to testify."

"Keeping the number of documents with interrogation information to a minimum can minimize certain legal issues," the policy statement said, according to Kuebler.

The first national demonstration of Gypsies brought hundreds of people to the capital Sunday to protest recent episodes of racism in Italy that have targeted Roma and Sinti people, as they prefer to be called.

"We're being used as scapegoats" to gain political advantage, said Stoyanovic Vojislav, a Serbian Roma and one of the organizers of the colorful demonstration, which involved about a dozen organizations.

Roma communities and illegal immigrants are increasingly blamed for rising crime in Italy, although statistics do not reflect a marked change over previous years.

The demonstration, Vojislav said, will make Italians understand "that the Roma are very different from how we are depicted" in the media and by some center-right politicians. More than half of the estimated 160,000 Roma in this country are Italian citizens, while most of the remainder are from Romania - since 2007 part of the European Union - or from the former Yugoslavia. But they are usually treated as foreigners.

"This is the first time in six centuries that we are demanding our rights," said Santino Spinelli, another organizer, who is a popular Gypsy musician and a professor of Roma culture at the University of Trieste. "We are demanding to be integrated because we are citizens like any others."

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Silvio Berlusconi's center-right government has promised tough legislation that would allow the police to shut down unauthorized Roma camps. The government also wants to carry out a census of people living in the camps. Interior Minister Roberto Maroni said last week that the issue of the Roma camps would be resolved by the end of the year.

Many of the demonstrators on Sunday wore black triangles, like those that the Nazis forced the Roma to wear in concentration camps.

"Today is a great day for the Rom," said Gina, a Roma from Romania who did not want to give her last name. "Remember that if you forget history, it can repeat itself."