Administrative Detention of Palestinians

Today is Day 14,239 of the Maintenance of the Immoral (and Illegal) West Bank Settlements and almost the 40th anniversary of the start of the immoral (and illegal) occupation of the West Bank and Gaza.

Micah.6:8 “He has told you, O man, Only to do justice and to love goodness, and to walk humbly with your God

In the Monday, April 9, 2007, Boston Globe is an article titled “ISRAEL REVIEWS NAMES OF HUNDREDS OF PALESTINIAN PRISONERS”. It notes that Israel is reviewing the names of hundreds of Palestinian prisoners that Gaza militants want released in exchange for a captured Israeli soldier and adds “Israel detains some 9300 Palestinian prisoners on security grounds, one of the highest totals in nearly 40 years of its military occupation.” I wondered what the word “Detains” meant. For clarification I went to the website of B’Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, a highly respected source of such information.

Below is a compilation of its explanations about Administrative Detention. The word “detain” in this article combines those being held in prison after a trial and those being held who may or may not be tried. The material points out how the Israeli government s form of detention violates international law. After the B'tselem excerpt is one from Wikipedia about the United States version of administrative detention in Guantanamo Bay.

How much legal training does one have to have to be outraged by a procedure that allows individuals to be held in prison for months and even years without being told what they are being charged with and what evidence there is even when their appeal is heard in a court? What confidence would you have that there is sufficient reason for these individuals to have been arrested and detained in the first place? We do not give such credence to the local police officers in our town. Why would we place such trust in the military forces of another country who for forty years have immorally and illegally occupied the West Bank? What if you were to find that the reason a Palestinian was being held in prison was because he spoke out against the occupation and the settlements? What is it like to sit in an Israeli prison for all this time and not be able to have your family visit you because of restrictions on travel of Palestinians living in the West Bank?


"ADMINISTRATIVE DETENTION

Administrative detention is detention without charge or trial, authorized by administrative order rather than by judicial decree. It is allowed under international law, but, because of the serious injury to due process rights inherent in this measure and the obvious danger of abuse, international law has placed rigid restrictions on its application. Administrative detention is intended to prevent the danger posed to state security by a particular individual. However, Israel has never defined the criteria for what constitutes "state security."

Israel's use of administrative detention blatantly violates these restrictions. Over the years, Israel held Palestinians in prolonged detention without trying them and without informing them of the suspicions against them. While detainees may appeal the detention, neither they nor their attorneys are allowed to see the evidence. Israel has therefore made a charade out of the entire system of procedural safeguards in both domestic and international law regarding the right to liberty and due process.

In 1998, a gradual decline in the number of Palestinians held in administrative detention began. From 1999 to October 2001, the average number was less than twenty. However, the legal basis for holding administrative detainees remained the same, which enabled Israel to steadily increase the use of administrative detention after October 2001. This trend increased greatly during and after Operation Defensive Shield. In the beginning of March 2003, Israel held a more than one thousand Palestinians in administrative detention.

B'Tselem urges the Israeli government to immediately release all administrative detainees or bring them to trial for any criminal offenses they are suspected of having committed. B'Tselem also calls upon the government to direct the military commanders to amend the military orders applying to the West Bank and the Gaza Strip pursuant to which administrative detention is made, so that it conforms to international legal standards.

THE LEGAL BASIS FOR ADMINISTRATIVE DETENTION - ISRAELI LAW

Administrative detention is lawful both according to the law applied in the Occupied Territories and Israeli domestic law.

In the West Bank, administrative detentions are currently carried out on the basis of Military Order Number 1229, of 1988. This Order empowers military commanders in the West Bank to detain an individual for up to six months if they have "reasonable grounds to presume that the security of the area or public security require the detention." Commanders can extend detentions for additional periods of up to six months. The Order does not define a maximum cumulative period of administrative detention, and, consequently, the detention can be extended indefinitely. The terms "security of the area" and "public security" are not defined, their interpretation being left to the military commanders.

The Order directs that the detainee be brought before a judge within eight days (the time period differs from time to time). The judge may approve, shorten, or cancel the order. In most cases, the judge approves the order as written. The hearing is not open to the public, and the judge makes his decision based on confidential material pursuant to which the order was issued. The confidential material is not provided to the detainee or his attorney. In the past, the orders required that the order be reviewed three months after the judge made his ruling approving the detention. This requirement was eliminated in April 2002. The detainee has the right to appeal the judge's decision. The appeal is heard by a military appeals court judge. Like the previous hearing, the appeal is held behind closed doors and the decision is based on confidential material.
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, and misuse the powers granted to military commanders in the military order:

ADMINISTRATIVE DETENTION IN THE WEST BANK

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 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 transfer of some of the territory to the Palestinian Authority, some of the detainees were held in the Occupied Territories, but 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.

STATISTICS ON ADMINISTRATIVE DETENTION
As of March 2007, Israel is holding approximately 780 Palestinian residents of the Occupied Territories in administrative detention. Most of them are held in facilities run by the Israel Prison Service (IPS)."

THE US VERSION OF ADMINISTRATIVE DETENTION IN GITMO

Here is an excerpt from Wikipedia about Guantanamo Bay detention center

"Guantanamo Bay detainment camp has drawn strong criticism both in the U.S. and world-wide for its detainment of prisoners without trial, and allegations of torture. The detainees held by the United States were classified as "enemy combatants". The U.S. administration had claimed that they were not entitled to the protections of the Geneva Conventions, but the U.S. Supreme Court ruled against this interpretation on June 29, 2006.[3] Following this, on July 7, 2006 the Department of Defense issued an internal memo stating that prisoners will in the future be entitled to protection under the Geneva Conventions.[4][5][6]

Most of the detainees still at Guantanamo are not scheduled for trial. As of November 2006, according to MSNBC.com, out of 775 detainees who have been brought to Guantanamo, approximately 340 have been released, leaving 435 detainees. Of those 435, 110 have been labeled as ready for release. Of the other 325, only "more than 70" will face trial, the Pentagon says. That leaves about 250 who may be held indefinitely."

Deuteronomy 16:20 – “Justice, justice shall you pursue that you may live and inherit the land which God gave you” and the footnote in the 1980 Hertz Edition “(T)here is international justice, which demands respect for the personality of every national group, and proclaims that no people can of right be robbed of its national life or territory, its language or spiritual heritage.