Administrative detention is detention without charge or trial that is authorized by administrative order rather than by judicial decree. Under international law, it is allowed under certain circumstances. However, because of the serious injury to due-process rights inherent in this measure and the obvious danger of its abuse, international law has placed rigid restrictions on its application. According to international law, administrative detention can be used only in the most exceptional cases, as the last means available for preventing danger that cannot be thwarted by less harmful means.
Israel's use of administrative detention blatantly violates the restrictions of international law. Israel carries it out in a highly classified manner that denies detainees the possibility of mounting a proper defense. Moreover, the detention has no upper time limit. Over the years, Israel has placed thousands of Palestinians in administrative detention for prolonged periods of time, without trying them, without informing them of the charges against them, and without allowing them or their counsel to examine the evidence. In this way, the military judicial system ignores the right to freedom and due process, the right of defendants to state their case, and the presumption of innocence, all of which are protections clearly enshrined in both Israeli and international law.
As of the end of June 2012, Israel was holding about 285 Palestinians in administrative detention (for detailed figures click here).
Over the years, Israel has held thousands of Palestinians in administrative detention, for periods ranging from several months to several years. The highest number of administrative detainees was documented during the first intifada. On 5 November 1989, Israel was holding 1,794 Palestinians in administrative detention. In the early and mid-1990s, the number of administrative detainees ranged from 100 to 350 at any given moment, and by the end of the decade, there were no more than a few dozen detainees held at the same time. On 13 December 2000, two and a half months after the second intifada erupted, Israel held 12 Palestinians in administrative detention. In March 2002, the number stood at 44
In April 2002, during Operation Defensive Shield, Israel administratively detained hundreds of Palestinians. By the end of the year, more than 1,000 Palestinians were being held as administrative detainees. Since then, the number has declined. In 2005-2007, there was an average of about 750 administrative detainees at any given moment, and that number has consistently fallen since November 2007. In December 2010, the number of administrative detainees stood at 204 (for detailed figures click here).
Yet in 2011, this trend was reversed and there was an increase. In January, Israel was holding 219 administrative detainees, but by December that number had risen to 307. Some 29 percent of the administrative detainees were held for a period of between six to twelve months, and 24 percent for one to two years. Seventeen administrative detainees were held between two and four and a half years, and one was in administrative detention for over five years.
Over the years, Israel has also held a few Israeli citizens in administrative detention, among them settlers. These cases are scarce and most of the detainees were held for short periods.
Three pieces of legislation enable Israel to hold Palestinians in administrative detention:
- Articles 284-294 of the Order regarding Security Provisions [Consolidated Version] (Judea and Samaria) (No. 1651), 5770-2009, which is part of the military legislation in the West Bank. Most administrative detainees are held under individual detention orders issued pursuant to this order.
- The Emergency Powers (Detentions) Law, which applies in Israel and replaced the administrative-detention arrangement established in the Emergency Regulations of the Mandate period. It is rare for residents of the Occupied Territories to be administratively detained under this law.
- The Internment of Unlawful Combatants Law, which came into force in 2002. Originally, the law was intended to enable the holding of Lebanese citizens who were being held in Israel at the time as “bargaining chips” for the return of captives and bodies. Now, Israel uses the law to detain without trial Palestinian residents of the Gaza Strip, where the military legislation was repealed upon implementation of the “disengagement” plan, in September 2005.
B'Tselem's position is that the government of Israel must release all administrative detainees or prosecute them, in accordance with due process, for the offenses they allegedly committed. As long as Israel continues to use administrative detention, it must do so in a way that comports with international law - only in the most exceptional cases, when there is no other alternative, and in a proportionate manner.