Criticism of administrative detention under the Administrative Detention Order

1 Jan 2011

Israel argues that administrative detention of residents of the West Bank is carried out only as an imperative security measure and that the decision to administratively detain a person is made only when ordinary judicial proceedings or less severe administrive measures will not prevent the danger posed by the detainee. However, these claims do not reflect the manner in which Israel uses administrative detention in the Occupied Territories. In practice, Israel breaches international law, while misusing the powers given to military commanders in the Administrative Detention Order:

  1. Extremely extensive use: Contrary to the principle set forth in international law that administrative detention is permissible only in very exceptional cases of emergency, when there is no other possibility to prevent the danger posed by the detainee, Israel has used administrative detention against thousands of persons over the years. During the first intifada and the second intifada, Israel held hundreds of Palestinians in administrative detention at any given moment. Administrative detention has become routine practice, rather than an exceptional measure.
  2. Administrative detention as an alternative to criminal proceedings: In many cases, it appears that the authorities use administrative detention as a quick and efficient alternative to criminal trial, primarily when they do not have sufficient evidence to charge the individual, or when they do not want to reveal their evidence. This use of administrative detention is absolutely prohibited and totally blurs the distinction between an administrative proceeding that is intended as a prospective, preventive measure, and a criminal proceeding, whose purpose is punitive. The only legal justification for administrative detention is exceptional circumstances in which a person is deemed to pose an immediate danger and no other measure can prevent this danger. Past actions of the detainee are therefore irrelevant, except insofar as they indicate the prospective danger that the detainee may pose.
  3. Lack of due process: Administrative detainees are not provided meaningful information on the reasons for their detention and are not given an opportunity to refute the suspicions against them. In most cases, the only explanation given to the detainee is that he is "a senior activist in the PFLP" (or Hamas, etc.). In some cases, during the judicial review, detainees are given additional information, but this information, too, is extremely limited, and in the vast majority of cases, detainees do not have access to the evidentiary material. The general rule is that the evidence is classified, and, to the best of B'Tselem's knowledge, in no case has a court ordered any of the classified evidence to be revealed. The reliance on secret evidence demonstrates a total, unquestioning trust in the Israeli Security Agency (ISA) and its judgment. This trust holds strong despite the report issued by the Landau Commission, which was established following several cases in which ISA interrogators gave false testimony in court, among other reasons. The systematic and extensive reliance on classified information constitutes one of the most problematic aspects of administrative detention and contradicts the fundamental principle of due process.
  4. Extending the detention period: The Administrative Detention Order enables detention of a person for up to six months. However, the detention can be extended for additional six-month periods indefinitely. The military commanders' practice is to extend the detention time and again. In July 2009, for example, some 79 percent of administrative detainees had been held for more than six months, meaning their detention had been extended at least once, and more than two percent had been held for three or four years without interruption. There have been times in which detainees were held for even longer periods.
  5. Detention of political opponents: At certain times, Israel has administratively detained Palestinians for their political opinions and non-violent political activity. Following the signing of the Oslo Accords, for instance, Israel also administratively detained Palestinians who opposed the peace process. In this way, the authorities have greatly expanded the meaning of “danger to security of the region,” in flagrant violation of the right to freedom of expression and opinion, which are guaranteed under international law.
  6. Holding administrative detainees inside Israel: Many Palestinian detainees are held inside the State of Israel, in flagrant breach of international law, which prohibits the transfer of detainees outside of occupied territory. The closure imposed on the Occupied Territories has severely harmed the right of detainees to family visitation and to meet with their attorneys.

B'Tselem's position is that the government of Israel must release all administrative detainees or prosecute them, in accordance with the standards of due process, for the offenses they allegedly committed. As long as Israel continues to use administrative detention, it must do so only in the most exceptional cases, when no alternative exists, and proportionately, in accordance with international law.