GUILTY UNTIL PROVEN INNOCENT – Israeli administrative detention in the Occupied Palestinian Territories

Imprisonment is among the harshest conditions a human being can experience. This lack of personal freedom is so terrible that it is only reserved for criminals or, in some cases, suspected criminals. In Israel, however, imprisonment is a reality that many Palestinians face, even if no crime has been committed. This is because of administrative detention, a measure used by Israeli executive or military personnel to imprison people suspected of being able to commit a crime, even if in the future. In this article, such practice will be defined and analysed, along with its local and international legal basis.

Different types of administrative detention are adopted in many countries throughout the world, such as India, Australia, and other Western countries subject to terrorist attacks. In Israel, there are three different variants of this measure, all essentially similar. Still, their legal legitimisation differs, and their applicative extent varies greatly: the least aggressive measures are reserved for Israeli citizens, whilst the most aggressive measures are applied to residents of the Occupied Palestinian Territories and foreigners, so-called “unlawful combatants”. What will be discussed are the latter, and in particular, the kind of administrative detention also referred to as “preventive detention” or “executive detention”. It consists of the administrative imprisonment of individuals, although they have never committed any crime; in fact, they are being detained to prevent them from committing future crimes or offences. (Krebs, 2012)

As of the beginning of April 2024, more than 3,660 Palestinians are being held in administrative detention, with 22 being women and more than 40 being children. According to the Prison Administration’s data, 849 detainees classified as “unlawful combatants” from Gaza are currently being detained. (Addameer , 2024) The number of Palestinians detained under administrative detention has more than doubled after the Hamas attacks of October 7th: at the end of September 2023, the Israeli Prison Service (IPS) was holding imprisoned 1,136 administrative detainees. Of these, at least 23 were minors aged 16 to 18. (B'Tselem, 2023)  On the other hand, cases of Israeli citizens being subjected to this regime are scarce and limited in time (Krebs, 2012). This discrepancy raises concerns regarding the instrumental use of such measure.

Administrative detention is drawn from the (Emergency) Defence Regulations of 1945, but in the West Bank military law also applies. Therefore, on top of British Mandate law, Palestinians from the West Bank are also subjected to military orders issued by military officials, such as the Order on Security Provisions. This order empowers military officials to place individuals under administrative detention for up to six months at a time, with the possibility for the military commander to renew the detention order an unlimited number of times. The condition for the application of such a regime is that the commander has a “reasonable basis to believe that the security of the region or public security requires it”. Within eight days of the person being detained or of their detention order being issued, the detainee must be brought before a military judge. The judge determines whether the detention is justified and decides on the need for secrecy of the evidence that led to the incarceration. The decision can be appealed to the Military Court of Appeals by either the detainee or the military commander (Krebs, 2012). The judges have always confirmed the secrecy of evidence and appeals on the part of the detainee have rarely been successful (B'Tselem, Administrative Detention, s.d.). Detainees often do not know what crimes they are accused of and cannot access the proof that led to their arrest. The same applies to their lawyer. In fact, any evidence related to these cases is protected and deemed as secret evidence, that only judicial authorities can access. That is only one of the reasons why judicial review is fundamental to a fairer functioning of this system.

The situation of Palestinians from Gaza is even more difficult, since Israel has withdrawn its troops and settlements from the Strip in 2005 but declared a full blockade on the region. Because Israel does not formally occupy Gaza, it uses the Internment of Unlawful Combatants Law to place its residents under administrative detention. As stated earlier, the provisions of this law are similar to those of the military order that applies in the West Bank (B'Tselem, Administrative Detention, s.d.).

Regarding International Law, it does not rule out administrative detention in a situation of belligerent occupation. In fact, under Article 78 of the Geneva Convention IV (GC IV), an occupying power can subject people to measures of internment if it is considered necessary for imperative reasons of security. Under Article 6 of GC IV, Article 78 and the other articles dealing with internment apply only in the first year following the general close of military operations.  In the Wall Advisory Opinion, the International Court of Justice (ICJ), assumed that Article 6 applied in the situation of the West Bank because a year has passed since the halt to military operations which led to the occupation in 1967. Another view, however, has it that Article 78 should be seen as lex specialis, therefore it would not necessarily apply to the situation in the West Bank. Moreover, it is considered arguable that military operations in the area are still ongoing. The Supreme Court of Israel has never dealt with such a question. (Kretzmer & Ronen, 2021)

Even if we were to accept the view of the ICJ in the Wall Advisory Opinion, there would still be a controversy related to the compatibility between the administrative detention instituted under military orders and the International Covenant on Civil and Political Rights (ICCPR), which Israel ratified in 1991. In fact, some experts argue that administrative detention is allowed under the ICCPR only when the State has declared a state of emergency. It is also necessary that such a State has derogated from Article 9 of the Covenant. Israel, however, has complied with both conditions. (Kretzmer & Ronen, 2021)

Furthermore, the Human Rights Committee has stated in General Comment 35 that administrative detention would normally be oppressive. However, if it is necessary for matters of exceptional, present, direct and imperative threat, the burden of proof lies on the State to show that such an individual poses a threat not addressable by alternative measures. The burden increases with the length of the detention (Kretzmer & Ronen, 2021). It is fair to say that Israel has failed to comply with its obligations in the matter.

In conclusion, the measure of administrative detention appears to be deeply engrained in the Israeli legal system. It is extremely controversial because of its preponderant use against Palestinians and because of its arguably inefficient judicial review system. The international legal basis of Israeli administrative detention in the Occupied Palestinian Territories also appears incomplete, actually not going against it, but not even justifying it completely. There is no moral justification for the unjustified detainment of an individual for months or even years.

The reality of poor living conditions that Palestinians living in the Occupied Territories face, which is far worse than the almost indiscriminate subjection to administrative detention, should raise at least some concerns about the force that an occupying power has been exercising continuously for at least 57 years.

Bibliography

B'Tselem. (2023). Statistics on administrative detention in the Occupied Territories.https://www.btselem.org/administrative_detention/statistics.

Krebs, S. (2012). Lifting the Veil of Secrecy: Judicial Review of Administrative Detentions

B'Tselem. (n.d.). Administrative Detention. Retrieved from B'Tselem Web site: https://www.btselem.org/administrative_detention

Addameer . (2024, April 17). FACT SHEET ISSUED BY PRISONERS' INSTITUTIONS ON THE EVE OF "PALESTINIAN PRISONER'S DAY" ON APRIL 17, 2024. Retrieved from Addameer Prisoner Support and Human Rights Association Web site: https://www.addameer.org/media/5320

Kretzmer, D., & Ronen, Y. (2021). The Occupation of Justice : The Supreme Court of Israel and the Occupied Territories. Oxford University Press.