Would Israel be alone using administrative detention to fight mobsters?

Other than Mexico, Malaysia, administrative detention has never been used against domestic criminals in democracies.

By
November 13, 2013 19:54
3 minute read.
Police raid crime family, December 3, 2012.

Police raid crime family 370. (photo credit: Screenshot)

As a public debate kicks into high gear over whether the state will begin to use administrative detention and other more aggressive tools for fighting organized crime, it is worth asking whether Israel would have company if it instituted such policies.

Administrative detention is indefinite detention without formal trial or regular charges, though in Israel military judges can approve specific periods of detention.

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To date, the government says that it uses it in rare circumstances for foreign terrorists, only in order to prevent them from committing future crimes, or where presenting the evidence at trial would expose intelligence sources.

Statistics range around 200- 300 “terror-related” detainees at any time.

While using administrative detention is highly controversial even against foreign terrorists, a number of Western countries, including Canada, and various European countries had periods of using variations of such detention, particularly in the years after September 11, 2001.

But the US, which has used it for between 100 to a few hundred prisoners in Guantanamo Bay, and Israel, are among a very short list of democratic countries that have used it in large volume over a longer period of years.

A larger group of countries, including many Western countries, have used administrative detention in dealing with large illegal migrant problems, but, with some variation, the periods of detention in such cases tend to be far shorter, resembling Israel’s old law on the issue, which capped detention at 60 days.

Other than in Mexico and Malaysia, which while democratic are not exactly considered the most developed democracies, administrative detention has never been used against domestic criminals – such as organized crime – who as of now must be brought to trial and can be detained only for set periods defined by civilian courts. (Trinidad and Tobago also has had periods of emergency rule.) Both Mexico and Malaysia’s democratic bodies endorsed administrative detention in the wake of major upticks of organized crime, similar to the circumstances in Israel, where the idea has gained some popularity following last week’s attempted car bombing of a prosecutor of organized crime.

Discussing the issue of administrative detention in general (not on the current controversy), former Canadian justice minister Irwin Cotler has previously told The Jerusalem Post that though Canada used it on a limited basis, he has criticized its application in the US and Israel.

Cotler said that the main point was not whether to have it at all, but to make sure that it is used only as an “exceptional remedy, that you need appropriate safeguards,” and to be clear about “when it is invoked, how it is invoked, what oversight there will be,” including ensuring “disclosure of classified evidence to the counsel of the detainee.”

Coming from an even more cautious perspective on using administrative detention (also speaking in the general context), German Justice Minister Sabine Leutheusser- Schnarrenberger previously told the Post that she had worked to eliminate any indefinite or pretrial detention, and that Germany now essentially had only preventative detention – that only when a criminal is convicted are they told that they will be held in custody past their sentence, as they are considered an ongoing threat.

At the same time, Leutheusser-Schnarrenberger was unwilling to slam Israel’s use of administrative detention against terrorists, due to its unique context.

So if Israel moves forward with administrative detention against organized crime, it will not have much company. But while it may take some heat internationally, ironically, since the issue is domestic and not connected to a high-profile international issue like the Israeli-Arab conflict, the external criticism may not be as intense.


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