Israel’s extensive use of administrative detention has become even more hotly debated since a hunger-striking Palestinian detainee almost died.
By ANDREW FRIEDMANA Hebron man demonstrates in solidarity with Palestinian prisoners on a hunger strike in protest at being held in administrative detention(photo credit: MUSSA QAWASMA / REUTERS)
When Sami Yusif Hussein was detained in the summer of 2006, he says his arrest by the IDF caught him by complete surprise. Only half a year after completing a lengthy prison term in late 2005, he says he had just started to put his life back together when he was re-arrested, but never charged with a crime.“I grew up in the Jalazone refugee camp near Ramallah and was very active during the first intifada. Actually, the first time I was arrested by the IDF was in 1982, for throwing stones, and I served four years in jail. When the first intifada broke out in 1987 I played a leading role in the camp and was eventually arrested and tried for planning to kidnap an IDF soldier, in order to exchange him for Palestinian prisoners in Israeli jails. The charges were accurate.I was found guilty and sentenced to 15 years.“But that experience was nothing compared to what was to come next. I was re-arrested in July 2006, as part of a wave of administrative detentions following the Hamas election victory. I was never even told why they’d brought me in. I was held for 26 months and released all of a sudden, without any warning or apparent reason. My dad had died a few weeks earlier ‒ I missed his funeral, and was only released for the very last day of the 40 day mourning period,” he relates to The Jerusalem Report.Sitting in a sparse office at the Palestinian Prisoners Association in Ramallah, the 49-year-old Hussein says that over the past 10 years he has spent a total of six and a half years in jail, but was never charged. He stresses that he does not recognize the jurisdiction of Israeli courts at all, especially in Judea and Samaria. He says he has no regrets about his actions as a young man, which he does not view as a crime. “We are under occupation,” he asserts emphatically. “I did what I felt I had to do to fight. Israel has no right to be here, certainly not in the West Bank, and the fact that they put me in jail is absolutely criminal.“But at least I knew what that was about. In the 10 years since I served that sentence, I have served an additional six and a half years in administrative detention, and I have no idea why. I’ve got three little kids now ‒ I couldn’t start until late because of all the time I’d spent in jail ‒ and none of us have any idea why they keep dragging me away. I haven’t been involved with Hamas, Islamic Jihad or any other nationalist organization ‒ the Israelis don’t like my politics, so they keep putting me in jail. But they have nothing to charge me with, so they claim “secret evidence” and pretend there is some sort of justice going on here,” he stresses.Israel’s use of administrative detention will likely remain in local and international headlines for the foreseeable future, both following the hunger strike and near death of Islamic Jihad security prisoner Mohammed Allan and the renewed use of administrative detention against Jewish right-wing extremists following a series of price-tag attacks that culminated in the arson murder of Ali and Sa’ad Dawabsheh in Duma this summer.NEARLY ALL sides in the Israel-Palestinian debate acknowledge that administrative detention is a legitimate legal tool recognized by international law.Palestinians, such as former Legislative Council member (and current head of the non-governmental Palestinian Prisoners Club) Qadura Fares, left-wing Israelis including Sarit Michaeli, spokeswoman for the human rights watchdog B’Tselem, retired Harvard University law professor Alan Dershowitz, and IDF Col. (res.) Aharon Mishnayot, a former commander of the IDF military courts in Judea and Samaria, all related to the need to balance human rights with national security.They predictably drew different conclusions about Israel’s widespread use of the measure, specifically since the outbreak of the first intifada in December 1987.“This is one of the most difficult, perhaps the most difficult issue of jurisprudence there is,” Dershowitz tells The Report. “All countries face this issue ‒ in times of war, facing terrorism, etc.You’ve got intelligence sources that cannot be revealed in public ‒ so how do you ensure public safety while still maintaining some fealty to legal principles? So yes, there is no good answer to this dilemma. By definition, there are only degrees of bad.”When asked to compare the extent of Israel’s use of administrative detention to other Western democracies, Dershowitz cites a list of American cities that have passed laws regarding vagrancy or membership in terror organizations (presumably in violation of the right of assembly, which is guaranteed by the first amendment to the US Constitution), as well as the fact that thousands of people ‒ particularly individuals convicted of sex offenses ‒ are held in American jails without bail, pending trials that can often take years to be concluded, for crimes they might have committed.Palestinians and their supporters concede Dershowitz’s point, but object to the “draconian, widespread” use of administrative detention, particularly because they see it as an effective way for Israel to take revenge on political enemies, who are critical of the Israeli government but pose no threat to the security of Israeli civilians or soldiers.“It is true that international law does permit administrative detention in certain, well-defined cases, with clear guidelines and with many restrictions,” says Fares. “If all these conditions are met, it can be justified.“But the starting point for that discussion is that administrative detention is a primitive measure, appropriate for emergency situations like World War II. But in Israel, administrative detention is not used as an emergency law, but rather it has the distinct smell of politics,” he says.Like many Palestinian ex-prisoners, Fares speaks fluent Hebrew and is clearly familiar with Israeli society. Statistics and facts about Israeli society roll easily off his tongue during our hour-long conversation, giving one the distinct impression that during his years of interacting with Israel and Israelis, he has unwittingly come away with a grudging respect for the enemy he has fought for most of his 54 years.The entry foyer to his building is decorated with a mural depicting a pastoral country scene, complete with river and tended grass growing on the banks, and a large tree, the branches of which are formed by arms raising rifles and knives in a glory salute.Further into the building, the hallway to Fares’s study is adorned with fading photographs of Palestinian “heroes” who served time in Israeli jails, individuals like Walid Nimar Dakka, Rushdi Abu Mokh and Ibrahim Abu Mokh, who were convicted of kidnapping and murdering IDF soldier Moshe Tamam in 1984. The three were released in July, 2013, as part of an Israeli release program intended to coax the Palestinian Authority to resume negotiations.WHEN ASKED how many of the 350 Palestinians, currently being held without charge by Israel are likely to know exactly what activities they’ve conducted that landed them in jail, the answer was simple, direct and quick, “Zero.”“I’m telling you,” Fares says with a smile. “For Israel, the issue of administrative detention is entirely gratuitous and has only to do with politics, nothing about security. When Hamas won the elections for the Palestinian Legislative Council in 2006, there was a wave of administrative arrests. Then, all of a sudden, when there are reports that Hamas and Israel have been talking, the releases begin.“This leads to an absurd situation in which the military prosecutors say that ‘Person X’ presents a tangible threat to the State of Israel on January 1, but the same person is released three months later.What happened in that time ‒ all of a sudden the secret “information” was no longer relevant and Person X is no longer dangerous? “Furthermore, Israel claims that military judges who have access to the Shin Bet (Israel Security Agency) files accusing Palestinians of security infractions have the right to refuse the Shin Bet recommendations for administrative detention.But I’ve been watching this issue for a long time ‒ I can tell you that there is not one case in which a judge rejected the Shin Bet’s recommendation for administrative detention,” he claims.Both Dershowitz and Mishnayot reject Fares’s suggestion that Israel’s use of administrative detention is motivated by politics. Dershowitz makes the obvious comparison of Israel’s administrative detention to the US military facility at Guantanamo Bay, Cuba, where “illegal combatants” from American wars in Afghanistan and Iraq can be held for years on end without semblance of a judicial process.“There are several differences between the law inside sovereign Israel and Judea and Samaria,” says Mishnayot, who retired in 2012 after 23 years in the IDF legal corps, including six years as the chief justice of the IDF Court of Appeals in Judea and Samaria and is now a doctoral candidate at Bar-Ilan University.His research focuses on administrative detention.“For one thing, there is only one person in Israel who can approve an administrative detention ‒ the defense minister, and he cannot delegate that responsibility to any other party. In contrast, in Judea and Samaria, the law gives the ranking IDF commander in a particular region the authority to recommend the arrest “Also, administrative detainees inside Israel must be brought before a judge within 48 hours, versus eight days in Judea and Samaria. And, instead of a civilian judge, cases in the territories are heard by a senior officer, no lower in rank than a major,” Mishnayot tells The Report.“But even in Judea and Samaria, judicial oversight is built into the process.Cases are reviewed by military judges at least every six months, and detainees always have the right to petition the High Court of Justice against the IDF Court of Appeals. Furthermore, at every stage, judges are required to review all the relevant material from top to bottom, and here the standards are similar to civilian courts. If the judge isn’t sure about whether to continue the administrative detention, he’s got to release the prisoner.”Mishnayot bristles at Fares’s assertion that administrative detention in Israel is little more than a political measure.“The process for approving administrative detentions is a complicated one.Before the ranking IDF officer signs an administrative detention order, lawyers from the Shin Bet and IDF Prosecutors Corps review the material. Then, after the suspect is detained, the evidence must be reviewed by a judge within eight days in Judea and Samaria, or within 48 hours inside sovereign Israel. And following the initial judicial review and approval of the detention by the IDF Court of Appeals, the detainee has the right to petition the High Court of Justice.“At every stage, there are multiple teams of lawyers, who review the case in Israel. And if, at any one of those stages, the lawyers or judges feel the intelligence information surrounding the case is insufficient to detain, the person must be set free,” says Mishnayot. Mishnayot admits that administrative detention (detention without charge) conflicts with basic rights. He stresses that sometimes circumstances leave authorities no choice but to use the measure to thwart terror attacks and to save human lives, but he emphasizes that no country does more than Israel to ensure proper judicial oversight of the process. “The way to balance the harm to basic rights is to ensure thorough judicial review, with the understanding that in specific cases there is no other way to deal with the dangers that an administrative detention order is intended to prevent.In practice, this is a process that serves to prevent the incorrect use of administrative detention,” Mishnayot concludes.
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