Shortly after the abduction of Cpl. Gilad Shalit, in June 2006, Israel detained dozens of Palestinians holding senior positions in the Palestinian Authority, some of them ministers in the Hamas government, and most of the members of the Palestinian Legislative Council on behalf of Hamas in the West Bank. The Judge Advocate General's Office informed B'Tselem that forty-five members of the PLC had been detained. According to B'Tselem's information, at least twenty-two of them remain in detention. In May 2007, following a Qassam attack on Sderot, the army arrested dozens more senior Palestinian officials, among them Minister of Education Nasser a-Din Sh'ar and the Minister for Fence and Settlements Affairs Wasfi Qaba. These two ministers and forty-five members of the PLC continue to be held in detention in Israel.
The timing of the arrests raises the suspicion that the action was taken to put pressure on the Palestinian population and its leadership. That suspicion is strengthened by statements made by Israeli officials. For example, in an interview with AP a few hours after the first wave of arrests, on 29 June 2006, Major-General Yair Naveh, OC Central Command, said that the decision to arrest senior Palestinian officials was made by the political echelon and that they would be released upon the release of Gilad Shalit. In an interview with the army radio station on 24 May 2007, the day that the second wave of arrests took place, the then-Defense Minister, Amir Peretz, stated that "the arrest of those heads of Hamas is to show the military organizations that we demand that the firing stop." It is clear, therefore, that the senior Palestinian officials are being held not to prosecute them for acts they had committed, nor even out of concern for what they might do in the future; rather, it is to benefit from neutralizing their political activity and from the hardship they, their colleagues, and the public they represent will suffer. If this is indeed the case, Israel is misusing the arrest power and is employing the criminal process to achieve extraneous objectives.
Some of the officials are being held in administrative detention and some have been indicted. In all the cases, the denial of their liberty was carried out in violation of law and in outrageous contempt for their rights and for the rights of the persons they were elected to represent.
Illegal administrative detention
The two ministers mentioned above and five of the PLC members are being held in administrative detention. As the term indicates, the detention is based solely on an administrative order. In complete breach of the "principles of natural justice" (the fundamental rules for ensuring a fair judicial proceeding), in administrative detention, the authorities deny a person liberty without filing an indictment against him or her, without giving the individual the opportunity to mount a defense in court, and without the court making a decision in the matter.
Because of the grave harm to the right to due process inherent in administrative detention, and the clear danger the procedure will be misused, international law permits administrative detention only in exceptional cases, when the detainee represents a clear and present danger, and then only if lesser means are ineffective in eliminating the danger. The use of administrative detention as a means of punishment is absolutely forbidden. The present case does not meet these conditions.
First, it is very doubtful that these ministers and legislators comprise a clear and present danger. They were chosen in elections that Israel allowed the Palestinians to hold and served in their positions for months during which the Israeli authorities did not even hint they constituted a danger. To justify holding them in administrative detention, the authorities must prove their incredible claim that, right after Cpl. Shalit was abducted and right after the National Security Cabinet's decision to allow the army to take stronger action against the Qassam rocket fire on Sderot, a concrete and real danger arose in respect of each and every one of the senior Palestinian officials who was detained. It is much more reasonable that the mass detentions were not made as a result of a candid fear of the detainees, and was instead based on extraneous, improper considerations, such as the desire to punish and pressure the Palestinian leadership.
Second, even in the event that each of them suddenly constituted a clear and present danger, the authorities should have coped with the danger in less drastic ways, in a manner that did not breach the rules of natural justice, such as by instituting criminal procedures against the person. After all, concluding that a person constitutes a clear and present danger to public safety is not based only on speculation relating to acts that the person is liable to do in the future, but also on information as to the dangerous acts that the individual did in the past. If no such acts can be found, it is hard to understand the suspicion that the person will endanger the public in the future. And if he did commit such acts in the past, which are probably forbidden by law, he should be prosecuted in a fair proceeding in which he can defend himself. The decision not to use this alternative and to deny the leaders their liberty for a protracted period of time without trial tramples on their rights and on the rights of the public they represent.
Even if the improbable claims that these Palestinian leaders constitute an immediate danger and that the only way to defend against the threat is by detaining them are correct, the manner in which they were placed under administrative detention is still unjustifiable. Administrative detainees are not without rights, which, in this case, the Israeli authorities breached. Holding them in detention facilities inside Israel flagrantly contravenes international humanitarian law, which states that an occupying state is not permitted to detain residents of the occupied territory inside its territory. This breach brings with it other infringements of rights, given that the detainee's legal counsel and relatives are not allowed to enter Israel without a permit, which is frequently denied, making it impossible for the detainees to meet with them regularly.
Improper use of criminal proceedings for political purposes and as collective punishment
Indictments were filed against the other senior officials. Most of the indictments were for “membership,” “activity,” and “holding a position” in an “unauthorized association.” As explained below, the statutory provisions on which these charges are based are problematic in and of themselves. Also, by deciding to arrest the officials and prosecute them on these charges, the authorities are applying the law improperly and in an attempt to achieve extraneous objectives.
The offenses regarding an unauthorized association are specified in the Emergency Defense Regulations that Israel has applied since the founding the state and which date from Mandatory times. Israeli law recognizes the extraterritorial application of these offenses given their definition as external offenses against the security of the state and its citizens. According to the interpretation of the relevant provision, anyone holding a position in an association that Israel classifies as illegal, and anyone who is active in such an association, even a person who is only registered as a member and lives anywhere in the world, is an offender against whom criminal proceedings may be initiated in Israel. This provision applies even if the defendant has not committed any other act that endangered the state or its citizens. Such a legislation is unreasonably broad, and improperly impedes the freedom of association and freedom of conscience.
The criminal laws are intended to punish persons for criminal acts they have committed. These laws are sufficient and provide the necessary tools to punish a person who commits an act harming the security of the state and its citizens. It is not necessary to expand the interpretation to include as an offense membership in one association or another, which in and of itself does not comprise a security threat. This sweeping criminalization is similar in nature to administrative detention: it enables punishment of a person and denial of his liberty not for harmful acts that he committed, but out of fear of a future danger that the person represents. This far exceeds the theory of punishment on which the criminal law is based.
In this case, had there been evidence that the officials indeed committed any of the dubious criminal acts attributed to them, the authorities presumably would have filed an indictment covering these offenses. This was not done, so it is likely that such evidence does not exist, and that they are being held not for harmful acts they committed, but only because they belong to Hamas or another organization that is classified as a prohibited association.
In addition to the fundamental problems inherent in offenses relating to an unauthorized association, there is also the problem of application of the law in the present case. Hamas is a large and diverse movement. The movement indeed contains a violent wing and persons who are responsible for crimes committed against Israeli civilians, but it is also a sociopolitical movement that conducts a broad range of activities. Many of its hundreds of thousands of members and many of those who operate the movement and hold positions in it do not take part in violent activity against Israel and do not assist in that activity. It is improper to attribute to all these persons, which include also the senior officials who were arrested, as offenders only because they belong to Hamas. The decision to open criminal proceedings against them even though they are not suspected of having committed violent or dangerous acts of any kind appears therefore as political prosecution in the guise of a criminal proceeding.
Furthermore, the State of Israel allowed the elections in the Palestinian Authority in which the arrested officials were elected, and did not oppose the participation of the Movement for Reform and Change, which identifies with Hamas, or of any other list, in the elections. By so acting, the Israeli authorities gave the impression that they do not consider the list an “unauthorized association” membership in which and activity in which constitutes a criminal offense. Thus, Israel is now prevented from taking criminal actions against anyone who relied on Israel's representation.
As stated above, the timing of the waves of arrests indicates that the arrests were intended to put pressure on the Palestinian people and its leadership. Although the authorities have discretion in enforcing the law, it is clear that, in this case, the decision to change its policy and initiate proceedings for a dubious offense that until then had not been enforced was not based on material and relevant considerations. Rather, they were political and completely unrelated to the objectives of the criminal law.