Administrative detention

Administrative Detention in the Occupied Territories

Published: 
1 Jan 2017
Administrative detention in the Occupied Territories

Israel has claimed that it uses administrative detention only as a necessary security measure and that the decision to administratively detain an individual is made only when normal legal measures or less severe administrative measures will not attain the objective and there is no other way to ensure security. In practice, however, the authorities apply administrative detention in violation of international law. They misuse the powers granted to military commanders in the military order:

  1. Administrative Detention as an Alternative to Criminal Proceedings: 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 preventive and punitive detention. The only legal justification for administrative detention is in exceptional circumstances where a person is deemed to pose an immediate danger and no other measures have proven effective to avert it. Past actions of the detainee are therefore irrelevant, except insofar as they indicate the future danger the detainee may pose.



  2. Detention of Political Opponents: Israel administratively detains Palestinians for their political opinions and non-violent political activity. Following the signing of the Oslo Accords, Israel also administratively detained Palestinians who opposed the peace process. In this way, the authorities expand greatly the meaning of danger to "security of the area" by flagrantly violating freedom of expression and opinion, which are guaranteed under international law.



  3. Lack of Due Process: In some cases, the detainee does not receive the administrative detention order upon arrest and is transferred directly to a detention center. Administrative detainees are not given the reasons for their detention or any 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.). Although the detainee ostensibly can appeal the detention, in practice he is not given a meaningful opportunity to defend himself because the evidence against him is not revealed to him or his attorney. The general rule is that the evidence is classified, and, to the best of our knowledge, in no case has a military court or the Supreme Court ordered any of the classified evidence to be revealed. The reliance on secret evidence demonstrates a total, unquestioning trust in the General Security Service and its judgment. This trust was not dampened by the many known cases in which GSS interrogators have misled and lied to judges. The systematic and extensive reliance on classified information constitutes one of the most problematic aspects of administrative detention and contradicts a principle fundamental to due process.



  4. Extending Administrative Detention: Military commanders are authorized to detain persons for up to six months. However, the commander can extend the detention for additional six-month periods indefinitely. From the time of the signing of the Declaration of Principles in September 1993 to the middle of 1998, military commanders repeatedly extended the period of administrative detention. Some Palestinians were administratively detained for years. The use of administrative detention has fallen sharply recently, but the law remains in effect, and Israel may theoretically return to its earlier policy.



  5. Holding Administrative Detainees inside Israel: Holding Palestinian administrative detainees inside Israel is a flagrant breach of international law which prohibits the transfer of detainees outside of occupied territory. Prior to the transfer of some of the territory to the Palestinian Authority, some of the detainees were held in the Occupied Territories, but they were subsequently transferred to detention facilities inside Israel. As a result, the closure imposed on the Occupied Territories severely harmed the right of detainees to family visitation and to meet with their attorney.