Administrative Detention of Palestinian Terror Suspects
(Updated August 2012)
The Israeli provision for administrative detention of Palestinian terror suspects is a widely misunderstood, and misrepresented, aspect of Israeli law concerning the disputed territories.
Since the intelligence that leads Israeli authorities to place a suspect in administrative detention is rarely released to the public for security precautions, the policy has come under international scrutiny and condemnation for supposed human rights violations. In 2012, a number of Palestinian administrative detainees led a hunger strike to demand better living conditions, force Israel to release them from confinement and shine a spotlight on Israel's detention policies in an effort to embarrass Israel and regain media attention for the Palestinian cause.
Contrary to the image that Palestinian advocates have presented of the administrative detainees being innocents held unjustly in miserable conditions, many of the detainees are in fact held based on extremely precise information that they actively assisted, planned or carried out terror attacks. Additionally, while prison conditions are never considered luxurious, the Israel Prison Services ensures that no detainee is held in solitary confinement and grants family visits to the inmates.
The following is a list of answers to the most frequently asked questions regarding the Israeli policy of administrative detention:
What is Administrative Detention?
Administrative detention (also known as 'internment') is a practice Israel uses as a preemptive and preventative measure to temporarily incarcerate those it can prove pose credible security threats to soldiers or civilians in the West Bank or Israel.
Is Administrative Detention Compliant with International Law?
Chapter Four of the "Law of Belligerent Occupation" explicitly allows for the detention or internment of individuals whose freedom "may be dangerous to the occupant" or "if necessary for the security of his forces, for the maintenance of law and order, or the proper administration of the country."
Likewise, Part III, Section III, Article 78 of the "Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War" stipulates that "If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment."
The British Defense Emergency Regulations of 1945 (which Israel inherited from the mandatory authorities and incorporated into their domestic law in 1948) allow for indefinite administrative detention without trial as imposed by a military commander against a person who poses a prospective security threat. These regulations have stirred major debate in Israeli politics (efforts to repeal them in 1951 and 1966, however, failed) and they were amended in 1979 to ensure a less arbitrary application.
Who Can Issue an Administrative Detention Order?
The principle authority to make an administrative detention order is vested with the Commander of IDF Forces in the West Bank. In addition, a detention order may be issued by a select group of high-ranking IDF officers individually appointed as "Military Commanders" by the GOC Central Command. In most cases these officers are the commanders of the regional brigades operating in the West Bank and typically hold the rank of Colonel or higher.
When Can an Administrative Detention Order be Issued?
When the detention of a suspect is considered to be absolutely necessary to ensure an adequate level of security and all other alternative avenues - including the filing of criminal charges - have been exhausted or cannot be employed, the use of administrative detention may be allowable. For example, detention orders are often issued against those planning terrorist attacks, or orchestrating, facilitating or otherwise actively assisting in the commission of terror acts.
How Many Administrative Detainees are Currently Imprisoned? Where are they Located?
As of April 2012, human rights organizations together with the Israeli Prison Service estimate that there are approximately 322 total Palestinian administrative detainees in Israeli prisons out of a total 4,500 Palestinians incarcerated on criminal charges. Detainees are held in one of three prisons - Ofer (Ramallah district); Ketziot (Negev); and Megiddo - though they are not necessarily separated from the overall prison population.
According to B'tselem, Israel held 1,794 Palestinians in administrative detention in November 1989 - in the midst of the first Intifada - and has since had the number decline dramatically with the exception of March and April 2002 when Israel detained approximately 1,000 Palestinians in the aftermath of its wide-ranging mission to root out Palestinian terrorism, codenamed Operation Defensive Shield.
What Mechanisms are in Place to Ensure Appropriate Issuance of Administrative Detention?
Prior to the issuance of any detention order, a military prosecutor - who is subject to a completely separate chain of command than the Military Commander - provides legal review of the order by assessing all the available information that the order is based upon. The prosecutor's assessment is legally binding.
Decisions are also subject to a multi-layered judicial review process primarily by military courts in the West Bank, which also function independently from the IDF chain of command. Court judgments are binding and cannot be revoked, circumvented or superseded by any authority with the exception of Israel's High Court of Justice.
If both reviews for administrative detention are upheld, the detainee must then be brought before a Military District Court judge who may then either confirm the order, reduce the period of detention, or throw out the order in its entirety.
Why is Administrative Detention Used in Place of Criminal Prosecution?
Criminal proceedings are instituted as a response to an alleged offense or criminal action. By contrast, administrative detention is a preventative measure designed to frustrate the commission of future criminal acts. Therefore, it is infeasible to bring lawful criminal charges against a person considered for administrative detention for two main reasons:
- At the stage that an order for administrative detention could be issued, there has not necessarily been a criminal act committed. For example, administrative detention is most often used in order to foil the plans of those who are in the midst of planning a terrorist attack but have not yet perpetrated the crime. Obviously, Israeli authorities are not willing to wait until the crime has actually been committed, at which point lives may be lost.
- Even once a criminal or terrorist action is committed, it is not always possible for the authorities to properly convict the perpetrator in open court. Very often, the intelligence information used to apprehend the suspect cannot be divulged to the defendant as doing so could risk revealing the source and/or manner in which the intelligence was gathered.
How Long Does an Administrative Detention Sentence Last?
A sentence for administrative detention cannot exceed six months. At the conclusion of the maximum six month period, the military commander must conduct a renewed assessment of the case which is also subject to the same legal and judicial reviews as the original sentencing.
While there is no formal bar on the number of administrative detentions - either consecutive or cumulative - that a detainee can be held, each renewed sentence places an exceedingly onerous burden on the military commander to to prove the necessity of the detention and the credibility of the intelligence.
Do Detainees Have a Set Appeals Process to Challenge a Sentencing?
After each stage of a case's review process, the detainee may challenge the judgment and ruling of the court by petitioning for an appeal which shall be decided with the least possible delay.
The detainee may appeal the Military Court's decision to confirm a detention order - including the order in general or the sentence time in particular- before the Military Court of Appeals. This court consists of independent judges holding the rank of Lieutenant Colonel or higher and with at least seven years legal experience.
Ultimately, any detainee may further challenge the judgment of the Military Court of Appeals by petitioning Israel's Supreme Court. If an appeal is heard at the Supreme Court, those appearing on behalf of the Military Commander are not military prosecutors but rather attorneys in the Administrative and Constitutional Law Division of Israel's Ministry of Justice. If these attorneys review the case and decide not to take it to trial, the detention order is effectively rescinded.
Sources: Israel Defense Forces; Administrative Detention (Wikipedia); Israel Law Resource Center; Library of Congress; International Committee of the Red Cross; Palestinian Prisoner Support and Human Rights Association; Amnesty International; Independent Media Review Analysis; B'Tselem; CNN