In a brief laconic judgment, the Supreme Court, sitting as the High Court of Justice (HCJ), approved the administrative detention order issued by the GOC Central Command against a Palestinian resident of the West Bank (HCJ 1389/07 Commander of IDF Forces in the Judea and Samaria Area v. Military Court of Appeals). At the time the petition was submitted, the detainee (the respondent in the petition) had been held in administrative detention for more than three years, based on claims regarding his involvement with Hamas and the risk he posed to the security of the “Area” and the public. The Military Court of Appeals had earlier revoked the detention order on the grounds that the activities attributed to the detainee as part of Hamas were mostly “spokesmanship and public relations”, and that these activities were carried out in the open and could be monitored without detention. In addition, despite the fact that these activities were public, the allegations against the detainee had not been brought before a court in a criminal proceeding.
After the Military Court of Appeals ordered the detainee's release, the military commander filed the petition.
Security legislation in the OPT allows security officials to deny a person’s liberty solely on the basis of an administrative decision
It should be noted that the HCJ first referred the parties back to the Military Court of Appeals, but after this court again revoked the detention order, considering the nature of the activities attributed to the detainee and the length of his detention, the military commander asked the HCJ to strike down the decision.
It is rare for the military commander to initiate a HCJ petition, seeking intervention in a decision made by the Military Court of Appeals. In most cases, it is the detainees who ask the HCJ to intervene in the discretion of the military commander and revoke detention orders. Either way, experience shows that in the vast majority of the cases heard by the HCJ on this issue, security considerations trump human rights regardless of who the petitioner is.
The same was true in this case as well. After reviewing the classified material, which was also presented to the Military Court of Appeals, the HCJ revoked the decision to release the detainee from custody – in two paragraphs only – claiming that it was extremely unreasonable. According to the justices, the detainee’s activities were not limited to “spokesmanship and public relations” but presented a real threat to security and his position and status within Hamas clearly necessitated his continued detention. Since it was impossible to try him in a criminal court for “fear of exposing informants”, he was to remain in administrative detention. At the same time, the justices recommended that the military commander henceforth restrict the duration of detention to 90 days “as the prolonged detention warrants more frequent reviews at the present time”.
Since the judgment was based on classified evidence, the extent of the “security threat” posed in this particular case remained unclear. Also left unclear were various questions that the justices did not address in their decision: Was the possibility of disclosing some of the classified material examined? Did the informants, or security officials appear to be examined by the judges? Was there any discussion about alternative detention options that would be less injurious to the detainee? Should the detention order have not been revoked once it became apparent that security officials had not been able to formulate an evidentiary infrastructure to file an open indictment for more than three years? Is concern about “exposing informants” sufficient justification for denying a man's freedom for so long? With these questions left unanswered, the judgment serves as one of many examples of the repeated use of administrative detention by security officials and the HCJ’s refusal to provide a true and effective rearguard defense against this practice, even when concerns of abuse arise.
Security legislation in the Occupied Palestinian Territories (OPT) allows security officials to deny a person’s liberty solely on the basis of an administrative decision, without trial and without allowing the detainee to benefit from the rights that are afforded to a defendant in a criminal proceeding. The military commander may place a person under detention for “security reasons” for a period of up to six months. However, this period may be repeatedly extended, with no limitation on to the maximum cumulative period of detention.
International humanitarian law allows an occupying power to place protected persons in interment as a security measure outside of a criminal proceeding. However, due to the draconian nature of this measure, it is considered exceptional and allowed only for “imperative reasons of security”. In order to ensure that administrative detention is used only to prevent a future security risk posed by the detainee personally, rather than as a punitive measure for offenses committed in the past, an administrative detention order can be appealed and it is subject to review, inasmuch as possible, every six months by a “competent body” established by the occupying power.
This process is designed to balance between security needs and detainee rights and to ensure that there is no arbitrary and disproportionate infringement on human rights. Indeed, case law produced by the Supreme Court has established that the use administrative detention is always subject to the requirement of proportionality, namely, it can be done when no alternative measures that are less injurious to the detainee can achieve the preventative security purpose.
The administrative detention order was upheld without any reference to international humanitarian law, international human rights law or the relevant requirements of Israeli administrative and constitutional law
In practice, security officials make frequent use of administrative detention and hold hundreds of Palestinians in prolonged detention on the basis of suspicions and evidence that are often not disclosed to the detainee or the public. Since the beginning of the first intifada in December 1987 thousands of Palestinians have been placed in administrative detention for periods of time ranging between six months and a number of years. Thus, for example, in November 1989, 1,794 Palestinians were held in administrative detention; generally, in the first half of the 1990s their number was anywhere between 100 and 350 at any given time; In the first six months of 2003, there were about 1,000 administrative detainees and between 2005 and 2007, the average number of administrative detainees was about 750. In the first six months of 2008 – there were more than 700. Since then, the number of detainees has gradually decreased. In January 2011, 219 people were held in administrative detention.
The number reached 307 in December of 2011 – about 29% of them were held in detention for six to 12 months, and another 24% between one and two years; seventeen people were held in administrative detention between two and four-and-a-half years consecutively, and one detainee was held for more than five years.
The HCJ, which is meant to serve as a mechanism for oversight of the use security forces make of this measure, routinely approves administrative detention orders on the basis of classified evidence, which does not allow the detainees to challenge the allegations made against them, even in cases of prolonged detention. In most cases, the justices make references to the severe harm to individual liberty that is entailed in administrative detention and to the fact that when detention is based on classified material the court must exercise extra care in examining said material and speak up on behalf of the detainee. Additionally, it has been ruled that the longer the period of administrative detention, the greater the weight that is to be accorded to the detainee’s right to personal liberty in the balance that is struck between this right and the public interest, and the greater the onus on security officials to establish the necessity of continuing to hold a person in detention.
In practice, this rhetoric is nothing more than a fig leaf for the severe infringement on detainee rights. Figures provided by the IDF spokesperson on judicial decisions made over a one-year period, between August 2008 and July 2009, indicate that during that time, 95% of the detention orders were approved by the first instance; on appeal, 85% of the contested detention orders were approved. Individual cases described in a 2009 joint report by B'Tselem and HaMoked indicate that the judges do not take a sufficiently “activist” approach; they do not inquire whether some of the classified material can be revealed and do not insist on subpoenaing informants or members of the Israel Security Agency for examination – not even in camera
With respect to the proportionality requirement, when the military commander manages to convince the court that there is an individual “security threat”, there are measures, other than pursuing the main course of action of laying criminal charges, that are available and that are less injurious than administrative detention, such as restrictions on freedom of movement, periodic reporting to a police station, house arrest or electronic tagging. On this issue, Adv. Tamar Pelleg-Sryck notes that “The instances of release of an administrative detainee to house or town arrest can be counted on the fingers of one hand. The position of the military and the [ISA] has been that Israeli control of the Territories is not sufficient for the required surveillance”.
Finally, there is validity to the position that during relatively calm periods within a lengthy occupation, the tight effective control of the territory, including at the level of security and intelligence, allows Israel, with the military commander acting on its behalf as the de-facto government in the occupied territory, to base its relationship with the local population not only on the law of occupation but also on human rights law, similarly (though not identically) to the relationship of the Israeli government with its own citizens. In these circumstances, when denying a person's liberty without a criminal proceeding is at issue, one can expect that in a regime that respects human rights and law enforcement, use of this extreme measure would be significantly limited, in view of the presumption of innocence and the right to due process, proceedings held in open court, the right to review the prosecution's evidence, to call witnesses for the defendant and to cross examine the witnesses of the opposing party. Where administrative detention is unavoidable, extra care must be taken to provide the procedural protections afforded to the detainee under the law of occupation, and primarily with respect to the nature and weight of the evidence against him. Care must also be taken to live up to additional human rights legal standards, such as frequent review by an independent judicial body (the law of occupation mentions only periodic review by a “competent body”) and the provision of legal aid.
As stated, according to Israeli practice, administrative detention is consistently used on a large scale basis even in circumstances of lengthy “calm” occupation, based on classified evidence that remain out of the detainees' reach and without any discussion of alternatives.
In the judgment discussed here, the administrative detention order was upheld without any reference to international humanitarian law, international human rights law or the relevant requirements of Israeli administrative and constitutional law. It appears that in this case too, the HCJ was quick to adopt the position presented by the security officials, despite the prolonged detention. Beyond the individual injury caused to the detainee, the public’s trust in the court has also suffered a blow. In the absence of real judicial review, there is concern that security officials are abusing their power and using administrative detention for purposes other than those for which it was intended, while circumventing proper criminal proceedings.Adv. Alon Margalit
The author is lawyer, formerly on staff at HaMoked: Center for the Defence of the Individual. He is currently a PhD candidate at the Institute of Advanced Legal Studies, University of London.