The issue of administrative detention made headlines last month when Islamic
Jihad member Khader Adnan went on a hunger strike to protest his
Since then, the state agreed not to renew Adnan’s detention, the
hunger strike ended, and the headlines have died down.
detention will likely be in the news again, since it is viewed by security
officials as a vital tool in the ongoing war to prevent terrorists from carrying
out their plots to harm civilians.
Despite its importance, this tool
should only be used sparingly, former military advocate-general Maj.-Gen. (res.)
Avichai Mandelblit told The Jerusalem Post
Wednesday in an exclusive
“It’s better to try terror suspects in standard legal
procedures,” said Mandelblit, who was the army’s most senior legal
Administrative detention is not supposed to replace trials, he
stressed, but rather, is designed to save lives where normal legal procedures
“Administrative detention is not about the past, but about the
future,” he said. “This is not about judging a person for past activities, but
preventing the most grave acts from occurring. Terror suspects working to bring
about the deaths of civilians would be subject to this... someone plotting a car
bomb in a city. Not rock-throwers, or people working for a Hamas-linked
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Suspects placed in administrative custody must be brought
before a military court within eight days, and have the right to petition the
High Court of Justice – a right which is often exercised. The judges are exposed
to all of the sensitive intelligence that led to the detention, Mandelblit
Administrative detentions have a six-month cap, during which
security forces work to investigate the wider terror cell in which suspects
operate. In most cases, after two rounds of administrative custody, the case
goes before the High Court.
“The arrests take place in locations where
armed conflict is occurring. According to international law, in such areas, a
state can hold combatants in administrative detention, and does not have to
bring them to trial as long as the conflict continues,” Mandelblit
Nevertheless, Israel has provided two layers of judicial review for
the detentions – double the amount stipulated by the Geneva Convention, which
calls for one layer.
Not all countries have been that liberal. The US,
for example, placed terror suspects in its extra-territorial Guantanamo Bay
facility with no judicial review, a decision that was eventually rejected by the
US Supreme Court, Mandelblit noted.
“A commander in the army can’t be the
only one deciding on administrative detention,” Mandelblit said. “There must be
a judge involved.”
In some cases, judges overruled the army and set
terror suspects free after concluding that they pose no immediate
The army’s aim is not to use administrative detention at all,
except when lives are in danger, he stressed.
“Until the start of the
second intifada in 2000, there were almost no uses of this. Afterwards, an armed
conflict developed between us and terrorist organization. This forced us to go
back to it.”
Clear guidelines are in place about when to use this form of
custody, he added.
Under administrative detention’s legal processes, the
terror suspect cannot gain access to case material, which includes sources such
as informers in Palestinian areas who led to the arrest.
wouldn’t live for very long if the suspect saw their names,” Mandelblit
The former military advocate-general said that in some ways,
administrative detentions were like targeted assassinations, in that they were a
measure used by the state if it has no other choice.
“We’re trying to
minimize it. But the situation is such that there are those who pose a very
serious threat to national security,” he said.
According to B’Tselem, the
past 12 months saw an increase in the number of Palestinian administrative
detainees, from 219 in January 2011 to 309 in January 2012.
(res.) Giora Eiland, former national security adviser to the government, agreed
with Mandelblit’s reasoning regarding the use of the administrative
If security services know someone is planning an attack, but
can’t prove it through a legal process, administrative detention must be used.
Otherwise the suspect will go free and civilians will be harmed, Eiland
Human rights groups will continue to condemn the measure as a gross
violation of human rights. But so long as no alternatives are provided to save
lives in “ticking bomb situations,” the defense community says it will go on
relying on administrative detentions, albeit reluctantly.
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