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.

Bosnian Serb security chief Stojan Zupljanin, 56, was one of four suspects sought by the tribunal for war crimes in the territory of former Yugoslavia in the 1990s.

Their arrest and handover to the tribunal has been a condition of Serbia's progress towards EU membership.

"There was no resistance during his arrest," said Vladimir Vukcevic, Serbia's chief war crimes prosecutor, who coordinated the operation. "This arrest shows clearly that we are seriously cooperating (with the Hague)."

Zupljanin was found at an apartment about 8 km (5 miles) from the centre of Belgrade by police and security agents and will be extradited within in 72 hours, officials said.

The arrest comes as Serbia, deeply split between nationalists and a pro-EU bloc after inconclusive elections last month, is immersed in intense coalition negotiations.

Officials said Zupljanin had foiled a previous attempt to arrest him in the southern Serbian city of Nis two months ago. His family had publicly called on him to surrender, to spare them further notoriety and financial collapse.

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The EU welcomed the arrest.

"It is an important step towards full cooperation with (the tribunal), which is key to bringing justice and lasting reconciliation in the Western Balkans region," EU Enlargement Commissioner Olli Rehn said in a statement.

In Washington, the State Department also praised Serbia.

"His arrest is another positive step towards insuring those responsible for war crimes committed in the former Yugoslavia are held accountable," said State Department spokesman Gonzalo Gallegos.

The U.S. hoped the arrest of Mladic, Karadzic and Hadzic, would follow, and "we call on authorities in the region to bring them to justice," he said.

Analysts said Wednesday's arrest may indicate that a pro-European coalition was the most likely outcome of Serbia's month-long government negotiations.

"It might also be seen as an announcement that it's more realistic to have a government that will follow a pro-European path," said political analyst Zoran Stojiljkovic.

The Democratic party leading the pro-Western bloc said the arrest signalled Serbia may gain EU candidate status by the end of the year. The Radical party, spearheading the nationalist grouping, slammed it as a black page in Serbia's history.

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.