Jerusalem24 – B’Tselem – Since 1 January 2022, all the Palestinians in Israeli administrative detention have been boycotting the military court proceedings in their cases. No Israeli official has addressed their concerns, and the courts continue to hear the detention orders as usual. Since the boycott began, the courts have heard dozens of cases – in the absence of the detainees and their legal counsel.
The boycott is intended to unmask the façade of judicial review regarding administrative detention orders. In these hearings, the detainees merely play the part of extras in a proceeding aimed at sanctioning their incarceration. The state’s choice to continue the hearings, as usual, reinforces this claim, demonstrating that the detainees’ physical presence in court is meaningless.
According to official military figures, the amount of administrative detention orders rejected by the courts is negligible. In the vast majority of cases, the judges unwaveringly accept the military commander’s discretion, at most slightly shortening the length of the detention:
- From the beginning of 2009 through 2013, a total of 3,996 administrative detention orders were issued for Palestinians. Of the orders heard by the courts during that time, 2,422 (about 60%) were authorized and 1,052 (about 26%) were shortened with no restriction placed on their extension. Another 99 orders (2.5%) were rejected, 196 (5%) were shortened and their extension restricted, and 214 (5.3%) were authorized and their extension restricted.
- From the beginning of 2015 to the end of July 2017, a total of 3,909 administrative detention orders were issued for Palestinians. Of the orders heard by the courts during that time, 2,953 (about 75%) were authorized and 390 (about 10%) were shortened with no restrictions placed on their extension. Another 48 orders (1.2%) were rejected, 181 (4.6%) were shortened and their extension restricted, and 320 (8.1%) were authorized and their extension restricted.
The decision to place a Palestinian in administrative detention is made by the regional military commander – without indictment or trial. Under the military law that applies in the West Bank, a person can be administratively detained for six months. However, the order can be extended indefinitely, so the detention is effectively unlimited and detainees never know when they will be released. Individuals held in administrative detention must be brought before a military judge within eight days – either of the original detention order or its extension. The judge may uphold the order, reject it, or shorten the period of detention stipulated in it. The decision may be appealed to the Military Court of Appeals or the subject of a High Court petition.
However, the judicial review is largely a façade. In the overwhelming majority of cases, the judges accept the ISA’s claim regarding the “security risk” that justifies the detainee’s immediate incarceration. As the evidence for the claim is not disclosed to the detainee and his counsel, he never knows the reason for the detention and cannot challenge the allegations supposedly made against him. In some cases, the judges request to see the classified material; in others, they do not review it or make any attempt to examine the information that led to the detention. In any case, the fact that the detainee cannot address this information empties the judicial process of any meaning.
The major problem with the judicial review is the court’s working assumption that administrative detention is a lawful measure. The judges only question how this power is implemented: did the military commander apply reasonable discretion in the case before them? At no point do they examine the legality of the measure itself.
In doing so, the judges completely ignore the fact that Israel’s use of administrative detention renders it unlawful. In violation of the restrictions placed by international law, Israel makes routine, extensive use of administrative detention. Over the years, it has placed thousands of Palestinians behind bars without charging them, without telling them what they are accused of, without disclosing the alleged evidence to them or their lawyers, and without informing them when they will be released.
According to the Israel Prison Service, Israel is currently holding 579 Palestinians in administrative detention. During the first and second intifadas, Israel held many hundreds of Palestinians in administrative detention. Since March 2002, not a single month has gone by without Israel holding at least 100 Palestinians in administrative detention. In 2003 (during the second intifada), the figure crossed the 1,000 mark several times.
Unlike a prison sentence following trial, which is meant to punish a person for having committed a crime, administrative detention is meant to prevent a future crime. However, Israel uses this measure as a quick and easy substitute for a criminal trial, especially when the authorities have no proof of guilt or do not wish to disclose the evidence supposedly in their possession. Israel also exploits the availability of this measure to incarcerate Palestinians solely for holding particular political opinions or participating in nonviolent political activity.
Palestinians are held in administrative detention for lengthy periods, lasting from months to several years with repeated extensions. In many cases, a new detention order is issued just before the current order expires, when the detainee is already preparing to go home and the family is waiting. Extensions are a matter of course. For example:
- At the end of August 2012, Israel was holding 184 Palestinians in administrative detention, 29 of them for half a year to a year (i.e., their detention had been extended at least once) and 106 for more than a year (i.e., their detention had been extended at least twice).
- At the end of August 2016, Israel was holding 652 Palestinians in administrative detention, 279 of them for half a year to a year (i.e., their detention had been extended at least once) and 96 for more than a year (i.e., their detention had been extended at least twice).
- At the end of August 2020, Israel was holding 355 Palestinians in administrative detention, 134 of them for half a year to a year (i.e., their detention had been extended at least once) and 54 for more than a year (i.e., their detention had been extended at least twice).
Administrative detention is a cruel measure that the Israeli regime uses extensively and unlawfully. For the detainees, the hardship of being incarcerated in harsh prison conditions and being cut off from one’s family, friends, and daily life is compounded by unbearable uncertainty – regarding both the reason for the detention and the date of release.
The detention orders are heard in military courts, where the judges and prosecutors are uniformed Israelis operating by the power of military orders. Some administrative detention orders are also the subject of High Court petitions, which are heard by Supreme Court Justices. They, too, do not represent the interests of the society to which the detainees belong, but rather the interests of the occupation regime. As such, they do not serve as an impartial arbitrator seeking justice; instead, they are a key mechanism in upholding Israel’s control over Palestinians in the West Bank.