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Israeli Abusive Administrative Detentions

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Israeli Abusive Administrative Detentions
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B'Tselem is the Israeli Information Center for Human Rights in the Occupied Territories. Hamoked is the Center for the Defence of the Individual, an Israeli human rights organization, aiding Palestinians whose rights Israel violates. In October 2009, they jointly published a report titled, "Without Trial: Administrative detention of Palestinians by Israel and the Internment of Unlawful Combatants Law," covering Israel's policy of imprisoning hundreds of uncharged Palestinians without trial "by order of an administrative official," not a judge.

By so doing, they're denied due process, may be held indefinitely, aren't told why they're detained, can't dispute it, cross-examine witnesses, or present contradictory evidence to refute them.

Three Israeli laws authorize the practice:

  • the Order Regarding Administrative Detention (the Administrative Detention Order), part of military law governing the West Bank;
  • the Emergency Powers (Detentions) Law for Israel; and
  • the Internment of Unlawful Combatants Law (the 2002 Unlawful Combatants Law), like a similar one in America, a dubious Geneva-superceded status international law expert Francis Boyle calls a:

"quasi-category universe of legal nihilism where human beings can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried in kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism."

Administrative Detention in International Law

Prolonged arbitrary detention is a serious breach of international law. Article 9 of the International Covenant on Civil and Political Rights states:

1. "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

Although infringing the law to a degree is permitted "in time of public emergency which threatens the life of the nation," Israel uses it consistently, abusively, and in violation of Fourth Geneva's Article 78 stating:

"If the Occupying Power considers it necessary, for imperative reasons of security, to take measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment."

"Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal (decided on) with the least possible delay. (If it's upheld), it shall be subject to periodical review...."

Administrative detention should never substitute for customary criminal proceedings and should only be used to prevent someone from performing a future lawless act, never to transfer protected persons to the territory of the occupying power.

Administrative Detention of Palestinians

The decision is made by four Israeli entities:

  • the Israeli Security Agency (ISA);
  • military commander;
  • military's prosecutor's office; and
  • military judges who adjudicate cases.

Prior to detention, the ISA or police conduct interrogations, lasting from a few days to a few weeks. If no indictment is intended, the military commander decides on whether to detain and for how long. A judge must then approve it. Each order allows three or six months, but can be indefinitely renewed so can last years in Israeli Prison Service (IPS) facilities.

Statistics

As of September 30, 2009, Israel held 335 Palestinians in administrative detention, including three women and one minor. One is from Gaza, the others from the West Bank. According to IPS figures, 22% of them had been held for less than six months, 37% for six months to one year, 33% for one to two years, and 8% for up to five years.

For many years, Israel has held thousands of Palestinians administratively for periods ranging up to years, in defiance of international laws and norms.

The Administrative Detention Order and the Supreme Court Case Law

Most detainees are held pursuant to individual administrative orders under the Administration Detention Order for the West Bank, under which commanders may order detentions when they have a "reasonable basis for believing that the security of the region or public security" is at issue.

Within eight days from arrest, a hearing before a military judge is required, to approve, cancel, or shorten the ordered time period. Either side may then appeal to the Military Court of Appeals.

Lower and appellate hearings are held "in camera" (in chambers) during which the judge isn't bound by regular rules of evidence. He may "admit evidence also not in the presence of the detainee or his representative, or without revealing it to them (if he feels it may) harm the security of the region or public security." Hearsay evidence is also allowed.

Either side may appeal to the High Court of Justice (HCJ), though rarely are petitions accepted. Nonetheless, the HCJ calls detention an extreme measure infringing on detainee rights that only should be used against someone known to be dangerous, subject to the principle of proportionality, and never if less harmful alternatives will suffice.

A Semblance of a Judicial System

Two features of administrative detentions show they're arbitrarily and improperly imposed. First, the wording used is "laconic, uniform, and contains no reference to the individual attributes of the detainee." Second, most orders are for six months, rarely for less than three months, unrelated to the criteria best suited for individual cases. As such, a huge gap exists between the established rules and their implementation as Israel uses detentions indiscriminately, not for exceptional cases.

Yet military court spokespersons extol what they call "the court's practice of frequent intervention in administration detention orders (and the alleged existence of) rigorous judicial review" with statistical support for what's practiced.

However, the books are cooked. The data is inaccurate and misleading as judges routinely approve 95% of  orders, rarely limiting the power of military commanders. Further, in 2008, the Military Court of Appeals got 1,880  appeals filed by detainees, but only 15% were accepted. In cases where prosecutors appealed, 57% were heard.

It's clear that "in the vast majority of cases," courts side with the prosecution, including on whether not to reveal evidence on state security grounds. As a result, detainees can't defend themselves. ISA agents aren't required to appear in court, and secret evidence amounts to hearsay. In cases when evidence is revealed, it's relevance to an alleged danger is unclear because the claim is so often exaggerated or untrue.



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