JPost Editorial: Detention without trial

It is not often that members of Kach, a political movement founded by the late Rabbi Meir Kahane, find a common ground with activists identifying with Meretz and NGOs.

August 24, 2015 22:19
3 minute read.
Meir Ettinger

Meir Ettinger attends a remand hearing at the Magistrate’s Court in Nazareth.. (photo credit: AMMAR AWAD / REUTERS)

It is not often that members of Kach, a political movement founded by the late Rabbi Meir Kahane, find a common ground with activists identifying with Meretz and NGOs that champion the human rights of Palestinians.

But that is precisely what has happened in recent weeks, following the horrific Duma terrorist attack attributed to Jewish arsonists and the hunger strike of jihadist detainee Muhammad Allan.

Right-wing activists, such as attorney Itamar Ben-Gvir, and defenders of Palestinian human rights, such as attorney Dan Yakir, of the Association of Civil Rights in Israel (ACRI), agree that administrative detention is a destructive measure that undermines democracy and the rule of law.

Just days after the firebombing of the home of Dawabsha family, which led to the deaths of father Sa’ad and 18-month-old Ali, Defense Minister Moshe Ya’alon signed administrative detention orders for three young Jewish settlers – Meir Ettinger, Evyatar Slonim, and Mordechai Mayer.

None of three was said to be directly connected to the Duma murders. Nevertheless, Ya’alon justified the detainments, claiming Ettinger and Slonim were suspected of “involvement in a Jewish extremist organization” while Mayer was said to be connected with “recent terrorist attacks as part of a Jewish terrorist group.”

No evidence was made public and no details regarding a specific terrorist attack or an identifiable Jewish extremist organization were offered by the defense minister.

Shortly after the arrests of Ettinger, Slonim, and Mayer, Allan’s hunger strike dominated the news. Allan, a member of the terrorist organization Islamic Jihad who began fasting on June 16, was protesting the circumstances of his arrest in November without being charged and without a trial.

Though most of the local and international media focused on Israel’s recently passed legislation which permits the forced-feeding of prisoners, Allan’s protest was directed against Israel’s wide use of administrative detention against Palestinians.

Both on the Right and on the Left similar arguments were deployed against the excessive use of administrative detention – though members of the Right tended to restrict their criticism to the cases in which those detained are Jews.

During a recent discussion on Ynet’s video news, attorney Aharon Rozeh, who is a member of Honenu, an organization that offers legal services to right-wing activists, agreed with ACRI’s Yakir that the excessive use of administrative detention reflected the failure of law enforcement agencies to gather real evidence.

Unable to prove their case in a court of law, but believing a suspect to represent a clear danger to the state or to society, the police, the Shin Bet and other law enforcement agencies are compelled to lock up the suspect and put him or her out of action, supposedly while continuing to investigate and accumulate enough evidence to indict. In practice, however, administrative detention is often abused.

Unlike Western countries that use administrative detention against suspected terrorists or illegal immigrants, such as the US or Australia, Israel has judicial oversight of the process.

However, the classified intelligence information presented to the court cannot be challenged by the defense.

Administrative detention is often used to stop a suspect from carrying out some future act of violence. That seems to be the motivation behind Ya’alon’s detention orders against Mayer, Ettinger, and Slonim. But as Steven Spielberg’s film Minority Report illustrated, preemptive punishment raises serious moral questions. Can someone be punished for a crime he or she has not yet committed? Finally, administrative detention threatens to undermine the very underpinnings of democracy. Principles such as habeas corpus, innocent until proven guilty, and the scrutinizing of evidence are all essentially for the protection of the individual’s liberty. When the state fails to adhere to these principles and tramples the basic rights of its citizens, it risks undermining its own legitimacy.

Obviously, Palestinian terrorism has proven over the years to be inordinately more deadly than the Jewish variety. And there are extreme cases in which administrative detention is the only way to protect innocent citizens from ideologically motivated violence.

However, the excessive use of administrative detention carries with it grave risks. Today it is being used against Palestinians and hilltop youths accused of terrorism. There is growing concern that it could be used against members of the wider public. Members of both the Right and the Left seem to understand this, which presents a unique opportunity for cooperation in a political environment that is too often fractious and hostile to both.

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