Time for a new deal for administrative detainees

Back in 1997, not long after I joined the B’Tselem staff, one of the first projects I was assigned was to research the issue of administrative detention.

I collected hundreds of individual detention orders and pored over hundreds of transcripts from administrative detention appeal hearings. What struck me most about Israel’s use of administrative detention was the sense that the system functioned like an assembly line, issuing cookie-cutter detention orders.

Administrative detention is meant to be an exceptional measure, reserved for the rare case where the authorities are faced with a future danger posed by an individual that cannot be prevented by other means.

Yet when it comes to Israel’s detention of Palestinians, administrative detention does not appear to be tailored to the specific individual and the risk he or she poses.

The detention order is standard with a blank line to fill in the detainee’s name and ID number.

The reason for detention is laconic: “for being a senior Hamas [or Islamic Jihad or another group] activist whose activities threaten the security of the area.” Most telling, the periods of detention are also completely uniform.

Every detention order is issued for a standard time, generally four or six months. No Palestinian constitutes a danger for 38 days, or for 11 weeks. If the administrative detention order was issued on the 13th of the month, it will be in force until the 12th.

Over the years, the number of Palestinians held in administrative detention has fluctuated from thousands during the height of the first intifada, in the late Eighties, to just a handful in 1999 to over 1,000 in 2003.

Israel has also administratively detained several Israeli Jews, mostly residents of West Bank settlements, for periods of a few months. Over the past year, the number has generally risen and the security forces now hold 308 Palestinians in administrative detention.

While the maximum period of an administrative detention is 6 months, the detention order can be renewed indefinitely. In fact, 70 percent of the detainees have had their detention extended at least once, and 15 people are currently being held for periods between two and five years. So in fact the detainees do not know when they will be released – on the day they are to be released, they can always be handed another detention order.

Sharifa a-Salibi, whose husband Muhammad was detained in December 2009, describes the toll this uncertainty takes: “The first time he was detained, for six months, we prepared ourselves for his release. We didn’t consider the possibility that his detention would be renewed. I was in shock when I learned that my husband’s administrative detention was renewed for another four months. The shock was even greater when his detention was renewed for a third time, for another four months.”

Altogether Muhammad a-Salibi was held for 14 months without ever being charged or tried for any crimes. He was released in February 2011, only to be rearrested this past January and given another six-month administrative detention order. The stated reason for Salibi’s detention order is that he is a Hamas activist. Salibi for his part says that, while he is affiliated with Hamas, he is not active in the organization. He is a religious scholar and lecturer in Sharia law.

The disparity between the two versions illustrates the problem with judicial review of administrative detainees. Although detainees are brought before a military judge to authorize the detention order, virtually all of the material submitted by the prosecution is classified and not shown to the detainee or to his or her attorney.

So Salibi and all the others do not know what sort of activity they are suspected of.

This makes a farce of the appeals process, with defense attorneys fumbling around in the dark in their crossexamination of military prosecutors, attempting to obtain some specific information about the suspicions against their client. Obviously, if you do not know the evidence against you, you cannot refute it.

When judges review secret evidence without the defendant being able to address this evidence, it is no wonder that judges cancelled the detention order in only 5% of cases – and half of these decisions were reversed in the Military Court of Appeals.

You don’t have to have any sympathy for the detainees themselves – while the allegations against them have obviously not been proven, many are accused of very serious offences, like plotting attacks on Israeli civilians – in order to be outraged over the practice of administrative detention. The right to liberty and the rule of law are basic values integral to a liberal democracy. Anyone, even a person suspected of terrible criminal offenses, is entitled to a fair trial, and those held in administrative detainees must also be presumed innocent until proven guilty in a fair trial.

Unlike a criminal proceeding, administrative detention is not intended to punish someone for an offense already committed, but to prevent future danger. Such a detention is inherently problematic and for this reason is permitted under international law only in rare, exceptional circumstances. According to the authoritative interpretation of the international human rights treaties Israel has signed, the detention order must be for the shortest time to prevent the danger (generally measured in days, not in months) and provide enough information to enable the detainee to refute the allegations. The manner in which Israel uses administrative detention is morally bankrupt and illegal.

Over the past few months, Palestinian administrative detainees have launched hunger strikes to protest their detention without trial. This expanded into a broader strike of prisoners as well as detainees against prison conditions more generally, and prison authorities and the hunger strikers have now reached an agreement to improve some of these conditions. But beyond the details of this agreement, the hunger strike has generated renewed and important attention to the broader practice of administrative detention, which has been employed for years with so little public scrutiny.

Even Israel’s Minister of Internal Security, Yitzhak Aharonovitch, has reportedly called for the policy to be re-examined to ensure that Israel’s use of administrative detention is proportional and only when necessary.

This is an opportunity for Israeli society to re-examine the practice of administrative detention and ask ourselves whether the practice accords with our values of justice and fairness. To me it is clear that we as a society can and must do better.

A good place to start would be ending the possibility of extending administrative detention orders; one period of detention is bad enough.

The writer is executive director of B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories.