Law & Order: A last, but necessary recourse

Former IDF advocate-general Mandelblit discusses controversial issue of administrative detention with the ‘Post.’

Palestinian students hold signs depicting Khader Adnan 390 R (photo credit: REUTERS/Abed Omar Qusini)
Palestinian students hold signs depicting Khader Adnan 390 R
(photo credit: REUTERS/Abed Omar Qusini)
The issue of administrative detention made headlines last month when Islamic Jihad member Khader Adnan went on a hunger strike to protest his custody.
Since then, the state agreed not to renew Adnan’s detention, the hunger strike ended, and the headlines have died down.
But administrative 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 interview.
“It’s better to try terror suspects in standard legal procedures,” said Mandelblit, who was the army’s most senior legal authority.
Administrative detention is not supposed to replace trials, he stressed, but rather, is designed to save lives where normal legal procedures can’t.
“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 charity.”
Avichai MandelblitAvichai MandelblitSuspects 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 explained.
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 said.
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 threat.
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.
“Those sources wouldn’t live for very long if the suspect saw their names,” Mandelblit said.
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.
Maj.-Gen. (res.) Giora Eiland, former national security adviser to the government, agreed with Mandelblit’s reasoning regarding the use of the administrative measure.
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 said.
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.