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  Israeli Abusive Administrative Detentions

COMMENTARY:

Israeli Abusive Administrative Detentions

by Stephen Lendman
Thursday, 18 February 2010

Detentions based on secret evidence without trial or meaningful judicial review are "the most extreme measure that an occupying state may use against residents of the occupied territory." Used indiscriminately subjects hundreds of Palestinians to injustice.

B'Tselem is the Israeli Information Center for Human Rights in the Occupied Territories. Hamoked is the Center for the Defence of the Individual, an Israeli human rights organization, aiding Palestinians whose rights Israel violates. In October 2009, they jointly published a report titled, "Without Trial: Administrative detention of Palestinians by Israel and the Internment of Unlawful Combatants Law," covering Israel's policy of imprisoning hundreds of uncharged Palestinians without trial "by order of an administrative official," not a judge.

By so doing, they're denied due process, may be held indefinitely, aren't told why they're detained, can't dispute it, cross-examine witnesses, or present contradictory evidence to refute them.

Three Israeli laws authorize the practice:

  • the Order Regarding Administrative Detention (the Administrative Detention Order), part of military law governing the West Bank;
  • the Emergency Powers (Detentions) Law for Israel; and
  • the Internment of Unlawful Combatants Law (the 2002 Unlawful Combatants Law), like a similar one in America, a dubious Geneva-superceded status international law expert Francis Boyle calls a:
    "quasi-category universe of legal nihilism where human beings can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried in kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism."
Administrative Detention in International Law

Prolonged arbitrary detention is a serious breach of international law. Article 9 of the International Covenant on Civil and Political Rights states:

  1. "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
  3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
  4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
  5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

Although infringing the law to a degree is permitted "in time of public emergency which threatens the life of the nation," Israel uses it consistently, abusively, and in violation of Fourth Geneva's Article 78 stating:

"If the Occupying Power considers it necessary, for imperative reasons of security, to take measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment."

"Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal (decided on) with the least possible delay. (If it's upheld), it shall be subject to periodical review...."

Administrative detention should never substitute for customary criminal proceedings and should only be used to prevent someone from performing a future lawless act, never to transfer protected persons to the territory of the occupying power.

Administrative Detention of Palestinians

The decision is made by four Israeli entities:

  • the Israeli Security Agency (ISA);
  • military commander;
  • military's prosecutor's office; and
  • military judges who adjudicate cases.

Prior to detention, the ISA or police conduct interrogations, lasting from a few days to a few weeks. If no indictment is intended, the military commander decides on whether to detain and for how long. A judge must then approve it. Each order allows three or six months, but can be indefinitely renewed so can last years in Israeli Prison Service (IPS) facilities.

Statistics

As of September 30, 2009, Israel held 335 Palestinians in administrative detention, including three women and one minor. One is from Gaza, the others from the West Bank. According to IPS figures, 22% of them had been held for less than six months, 37% for six months to one year, 33% for one to two years, and 8% for up to five years.

For many years, Israel has held thousands of Palestinians administratively for periods ranging up to years, in defiance of international laws and norms.

The Administrative Detention Order and the Supreme Court Case Law

Most detainees are held pursuant to individual administrative orders under the Administration Detention Order for the West Bank, under which commanders may order detentions when they have a "reasonable basis for believing that the security of the region or public security" is at issue.

Within eight days from arrest, a hearing before a military judge is required, to approve, cancel, or shorten the ordered time period. Either side may then appeal to the Military Court of Appeals.

Lower and appellate hearings are held "in camera" (in chambers) during which the judge isn't bound by regular rules of evidence. He may "admit evidence also not in the presence of the detainee or his representative, or without revealing it to them (if he feels it may) harm the security of the region or public security." Hearsay evidence is also allowed.

Either side may appeal to the High Court of Justice (HCJ), though rarely are petitions accepted. Nonetheless, the HCJ calls detention an extreme measure infringing on detainee rights that only should be used against someone known to be dangerous, subject to the principle of proportionality, and never if less harmful alternatives will suffice.

A Semblance of a Judicial System

Two features of administrative detentions show they're arbitrarily and improperly imposed. First, the wording used is "laconic, uniform, and contains no reference to the individual attributes of the detainee." Second, most orders are for six months, rarely for less than three months, unrelated to the criteria best suited for individual cases. As such, a huge gap exists between the established rules and their implementation as Israel uses detentions indiscriminately, not for exceptional cases.

Yet military court spokespersons extol what they call "the court's practice of frequent intervention in administration detention orders (and the alleged existence of) rigorous judicial review" with statistical support for what's practiced.

However, the books are cooked. The data is inaccurate and misleading as judges routinely approve 95% of orders, rarely limiting the power of military commanders. Further, in 2008, the Military Court of Appeals got 1,880 appeals filed by detainees, but only 15% were accepted. In cases where prosecutors appealed, 57% were heard.

It's clear that "in the vast majority of cases," courts side with the prosecution, including on whether not to reveal evidence on state security grounds. As a result, detainees can't defend themselves. ISA agents aren't required to appear in court, and secret evidence amounts to hearsay. In cases when evidence is revealed, it's relevance to an alleged danger is unclear because the claim is so often exaggerated or untrue.

"Contrary to a criminal procedure, in which the evidence is generally disclosed, the privileged evidence prevents administrative detainees and their counsel from examining (its) quality, scope, accuracy, and relevance" to be able to refute it. "Defense counsel must, therefore, grope in the dark when questioning the prosecutors" to guess at which approach may uncover the reasons for detention. Even so, prosecutors often say they can't respond as their answers are "privileged material," solely for the judge. The HCJ accepts this as a given, making judicial fairness impossible under a system designed to deny it.

Even judges don't see all ISA material and usually don't request it. As such, they ignore caution and prevent counsel from conducting a proper defense. In addition, detainees often aren't told what danger they pose or what their detention will prevent. And judges let prosecutors get away with this, making a mockery of the rule of law, including for minors.

Yet international law grants them special protections. Under Article 37 of the Convention on the Rights of the Child, no child shall be deprived of his or her liberty unlawfully or arbitrarily. Arrest, detention or imprisonment must conform to the law, only be used as a last resort, and for the shortest period possible. In addition, all children must be treated humanely, respecting their needs, access to family members, proper legal counsel, other assistance, right to challenge the legality of their detention, and get prompt disposition. Israel ignores international law in all respects and treats minors the same as adults.

Further, most administrative detainees are held in Israel, contrary to international law that prohibits their being held outside the occupied territory. As a result, families can't visit loved ones because entry permits are practically impossible to get.

Israel's Unlawful Combatants Law

It's similar to America's law that international law expert Francis Boyle called a legally nihilistic perversion of justice. Yet under Israel's Unlawful Combatants Law (UCL), Palestinians may be detained indefinitely without trial or hope for judicial fairness. UCL defines an unlawful combatant as anyone not entitled to POW status under international law, who either took part in hostilities against Israel (directly or indirectly) or belongs to a force carrying them out.

An officer as low-ranking as captain may order someone interned for 96 hours if he has "a reasonable basis for believing that the person brought before him is an unlawful combatant." But the burden of proof falls on victims, not their accusers.

Once an order is issued, the chief of staff officer, a major general, may issue a permanent internment order if he has "a reasonable basis for believing" that the unlawful combatant designation is accurate and the person threatens state security. No rules of evidence apply so Palestinians must prove otherwise, and under this law, no time limits do either, so detention can be forever, without trial and with no justice.

Judicial Review and Presumptions Specified in the Law

Internees must be brought before a District Court judge within 14 days from the date of the internment order's issuance. If he approves it, detainment is indefinite, subject to regular six month reviews after which internees may continue to be held or released at the judge's discretion. His decision may be appealed to the Supreme Court, but rarely does it intervene.

UCL is further strengthened by two presumptions:

  • that releasing unlawful combatants will harm national security, directly or indirectly, even without evidence; and
  • during or after hostilities, by "determination of the Minister of Defense....a certain force is carrying out hostilities against (Israel) or that the hostilities of that force....have come to an end or have not come to an end, (so claiming it's ongoing) shall serve as evidence in any legal proceeding, unless the contrary is proved."

UCL's 2008 Revision

In 2008, the Knesset expanded its internment powers to let the government declare the "existence of wide-scale hostilities," during which time internees may be held for seven days prior to issuing a permanent internment order. In addition, lower ranking brigadier-generals may do it, and judicial review authority shifts from the District Court to military one established especially for this purpose.

Use of the Law

It's used primarily against Gazans but may as well in the West Bank, so far affecting 54 persons:

  • 15 Lebanese nationals since 2002, all of whom have since been released as part of a prisoner exchange with Hezbollah following the 2006 Lebanon war; and
  • 39 are Gazans, including 34 interned in 2009 after Operation Cast Lead; nine are still held.

Supreme Court Judgments on the Law

In 2008, the High Court ruled the law constitutional, and its president, Justice Dorit Beinisch, stated that:

the "mechanism provided in the law is a mechanism of administrative detention in every respect."

Thus, Administration Detention Law rules apply to UCL. Everyone interned must be for prevention, not punishment for a past act, and those affected must be:

"members of terrorist organizations in a state of ongoing hostilities in a territory that is not part of Israel, where a relatively large number of enemy combatants is likely to fall into the hands of the military forces during the fighting."

In most cases, Israel opts for this law because it:

  • grants greater state powers;
  • provides fewer individual protections;
  • shifts the burden of proof to them;
  • judicial review is less frequent;
  • no state of emergency need exist; and
  • a sole high-ranking officer, on his discretion alone, may order anyone interned.

Criticism

UCL's original purpose was to hold foreigners as "bargaining chips," a provision the Supreme Court later prohibited. Its purpose was to:

"create a combination of administrative detention and prisoner of war status, a draconian incarceration track that grants extremely minimal rights and protections to the detainee. On the one hand, the state can prosecute such a person for taking part in hostilities, while, on the other, it can hold him in prison without trial as if he were a prisoner of war, and release him only at the end of hostilities, regardless of the personal danger he may or may not pose if released."

The law was passed even though the 1979 Emergency Powers (Detentions) Law served the same purpose.

Despite subsequent changes since enactment, UCL clearly violates international law as does America's version. Even Israel's High Court held that no "unlawful combatant" status exists in international humanitarian law. These persons are civilians entitled to Fourth Geneva and other legal protections.

Two of its provisions are especially egregious - the presumption, without evidence, that a detainee poses a threat, and the claim that ongoing hostilities release prosecutors from proving it. Detainees are allowed to prove their innocence, but doing so is practically impossible because how can they prove a negative. It's their word against prosecutors, and for non-Jews the task is daunting, especially since most "evidence" is secret for reasons of national security.

In addition, UCL is broadly defined even though international law permits administrative detentions only in exceptional cases when there's no other way to avert danger. Israel uses it repressively to detain Palestinians indefinitely, using secret evidence that may not exist. Yet High Court Justice Elyakim Rubinstein held that:

"It is not possible to hold a fair proceeding where there is material that the defense does not have the opportunity to try to use for its needs."

Final Comments

Israel uses administrative detentions repressively, in violation of the letter and spirit of international law. In all cases, security considerations must be balanced against individuals' rights to due process and judicial fairness.

Detentions based on secret evidence without trial or meaningful judicial review are "the most extreme measure that an occupying state may use against residents of the occupied territory." Used indiscriminately subjects hundreds of Palestinians to injustice. It's an old story from a state affording it only to Jews.


Stephen Lendman

Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net. His blog is sjlendman.blogspot.com.

Listen to Lendman's cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.

Mr. Lendman's stories are republished in the Baltimore Chronicle with permission of the author.



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This story was published on February 18, 2010.
 



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