Security Prisoner
Security Detainee
Administrative Detainee
Total
6.6.2012

Comments on “Administrative Detention in the West Bank: Q&A”

Administrative Detention in the West Bank: Q&A”, recently brought to public attention on the home page of IDF advocate general, is replete with errors and inaccuracies that call for comment and correction. I’ll concentrate on those of greater importance.

The Q&A opens with the statement that “Administrative detention is a lawful security measure”. Perhaps it could have been such if it had complied with the standards specified there. However this is not the case.

It is true that “the international law authorizes the use of administrative detention in territories under belligerent occupation”. However administrative detention law and practice in the occupied West Bank deviate substantially from the demands of the International Humanitarian and Human Rights Law.

 While Geneva Convention IV sanctions internment (i.e., administrative detention) as an exceptional measure only, the high number of persons from the occupied Palestinian territories who have been subjected to administrative detention points to routine, rather than exceptional, use of this detention regime. (The cumulative number since the beginning of the occupation reaches tens of thousands. The figure for November 1989 was 1794; January 2003 – 1007, August 2010 – 189, April 2012 is 309). Geneva Convention IV forbids transfer as well a deportation of protected persons from the occupied territory to the territory of the occupying power or that of another country. However, administrative detainees (and other West Bank prisoners) are held in jails within Israel (and the recent deportation to Gaza of the administrative detainee - Hanna Shalabi – should also be born in mind). Prison conditions of the administrative detainees are a far cry from the rights granted to them by the Geneva Convention. And last but not least, international humanitarian and human rights law establish procedural safeguards and judicial guarantees that must be satisfied. These include a duty to inform people of the particulars of the reasons for which they have been arrested and of the allegations against them. In stark contrast to this obligation, secret material is at the heart of the administrative detention regime and of the related judicial review implemented by Israel.

The Q&A declares that administrative detention is used only “in cases of persons posing grave threats to the security of the West Bank and its population… against persons directly involved in terrorism”. This habitual statement is meaningless without an explanation of what is meant by “security of the West Bank” and what “its population” is. The expected explanation is provided neither in the law nor in the judicial rulings. Their meaning is political. It derives from the attitudes and intentions of the Israeli government towards the desirable future of the West Bank and the steps to be taken in order to achieve it.

The same goes for the question who are those “persons directly involved in terrorism” that are the targets of administrative detention? In actual fact the detainees alleged with “military activity” are a minority and the rest are said to have been involved in some sort of unspecified “organizational activity” a term which the Israeli authorities apply to a broad array of social, political, humanitarian, and educational activities. Such activity, if in some way connected with one of the political organizations declared by Israeli military law as “not permitted”, is currently labelled “terroristic” and as such is deemed to provide sufficient grounds for administrative detention. By this token, Jameela who works in a Hamas supported kindergarten or Ahmed who plays football in a club supported by the PFLP, may be considered to be engaged in “terrorist activity” and could thus be deemed to pose ”grave threat to the security of the West Bank”. They could, at any time, be administratively detained. Perhaps they already have been.

True, the military law empowers the Military Commander to sign administrative detention orders. However the initiative is not his. He is requested to do so by the Shabak. The request is backed by a summary of secret material (the Hebrew acronym is TAVLAM,טופס בקשה למעצר מנהלי ). It is the Shabak which collects the secret intelligence material and keeps personal secret files of Palestinians. It is the Shabak which evaluates the credibility of the “security material” and determines the danger emanating from the detainee. The military commander is a busy officer who has many important duties. When approving the request of the Shabak he relies on the above mentioned summary and on the advice of the military prosecutor who reads it for him. All that the Military commander and his adviser usually know about the case is derived from the limited information released to them by the Shabak.

The Q&A says: “Administrative detention is used solely as a preventive measure and only as the last resort and cannot be employed where criminal prosecution is possible…” It certainly should be so. Such is the ruling of the High Court of Justice. However the practice deviates from this requirement. The Shabak doesn’t devote all necessary efforts to obtain evidence sufficient to produce charges. Often, the Shabak seems to prefer holding suspects in administrative detention instead of initiating criminal proceedings against them. As, for example, when they wish to pressure an individual to serve as a collaborator (a practice which is itself prohibited by international humanitarian law and the Israeli Supreme Court has ruled that this body of law is binding on Israel).

It also happens that the administrative detainee has in his file evidence that enables indictment, but the evidence concerns minor offences that may bring about his release on bail. In such cases, more often than not, the judge will accept the prosecutions claim that release from criminal proceedings may or will result in another administrative detention order. The detainee will regain his present status. So why all the trouble?

As for “the less restrictive administrative procedures” that should be preferred if security considerations allow – as the Q&A says - such as assigned residence or house arrest, these have been almost out of practice for many years. The reason given is the impossibility to supervise its execution. However incarceration by PA takes their place at times.

The Q&A continues to explain: “The procedure of issuing orders for administrative detention includes several safeguards against both abuse and arbitrariness”. The first one is personified in “an independent military prosecutor” who ”provides a legal review through conducting an assessment of the order that is legally binding on the Military Commander”. “An independent military prosecutor” is a neologism. His function as described is hard to understand. Of whom or what is he independent? What impact has he on the Military Commander’s task? The Military Court of Appeal has defined the role of the military prosecution in the process of issuing administrative detention orders as that of the military commander’s legal advisor and the role of the Shabak as his security advisor. Is “an independent military prosecutor” a creative albeit inexistent conglomeration of the two?

The Q&A speaks about a “multi-layered system of judicial review”. In law and in reality there are two instances of a judicial review, both are carried out by a military judge. The first is the judicial review that has to take place within 8 days after the administrative detention order has entered into force. The second takes place if the detainee uses his right to appeal .The detainee may also file a petition with the Israeli High Court of Justice, as many of them indeed do, even though it is well known that they have virtually no chance of obtaining a decision in their favour.

The statement of Q&A that during the judicial proceedings “the information cannot be disclosed in full” to the detainee and his lawyer is rather euphemistic. What is always disclosed to them is only that the detainee is a security risk, at times also that he is affiliated with a certain organization, sometimes that he is involved in organizational activity without any further information either about the meaning of this expression or the detainee’s alleged organizational activity.

It should be made clear: in the process of judicial review there is no evidence. Neither secret nor open. There is “security material” or “intelligence information” proceeding from collaborators directly or via electronic devices. The judge receives a copy of the written summary (TAVLAM mentioned above) that was submitted to the military commander who signed the order. The judge has the authority to demand more information and to order that the entire secret file of the Shabak be handed over to him. He is also entitled to question the Shabak official responsible for the file. H e  d o e s  n o t. Very few judges in very few cases are ready to scrutinize the decisions of security experts. Most prefer to avoid the responsibility. Due to the inability of the detainee to defend himself against unknown allegations, the process of judicial review is not and cannot be adversary. Neither is it an inquisitorial one. Judges usually confirm the detention orders, sometimes shortening them “insubstantially” which enables their extension. Very rarely is a detainee released by judicial decision. Administrative detention is the realm of the Shabak.

In the first introductory paragraph of the Q&A it says: “Administrative detention …is … a measure allowing the deprivation of a person’s liberty for a limited time”. It is not. In contradiction to this statement, the Q&A explains later on (in the last paragraph before the second part entitled “Questions and Answers”) that the law does not set any limits to the length of administrative detention. Presently, there is a person whose administrative detention exceeds five years. His is not the longest term known in the history of the West Bank. And the date of his release cannot be known before it happens.

To sum up: administrative detention is a deprivation of personal liberty without legal limit, without transparency, charges, evidence and witnesses. It is subject to sui generis formal judicial proceedings that are neither adversary nor inquisitorial and have very little to do with discovery of truth and achieving justice. It is a convenient tool in the hands of the Israeli occupier to counter dissatisfaction and resentment in the midst of the occupied population.

By att. Tamar Pelleg Sryck
mail@hamoked.org.il (02) 627 1698   (02) 627 6317

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