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Grim milestone: Israel arbitrarily imprisons over 1,000 Palestinians without charge or trial

As Palestinian detainees pass this grim milestone, Jerusalem24 asks: what exactly is "administrative detention” and how does it work? Who does it target? What does international law say about it? And what can Palestinians do to fight it?

Jerusalem24 – Figures from the Israel Prison Service obtained by HaMoked—Center for the Defense of the Individual show that as of April 2023, Israel is holding 1,016 Palestinians in arbitrary detention without charge or trial, or what it calls “administrative detention”.

Administrative detention orders can be issued for up to six months at a time and are indefinitely renewable. Neither the detainee nor their lawyer is allowed to see the “secret evidence” which forms the basis for their incarceration, precluding them from mounting a defense.

This month’s figures indicate the highest number of administrative detainees since 2003 at the height of the Second Intifada, when up to 1,119 Palestinians were held without charge or trial – and, prior to that, in 1989 during the First Intifada, when up to 1,794 were arbitrarily imprisoned.

According to Israeli military statistics obtained by Haaretz in March, judges in military courts (where West Bank Palestinians, including children, are systematically tried) approved 99% of the 2,076 administrative detention orders issued by military authorities in 2022.

HaMoked director Jessica Montell told AP NEWS that “the numbers are shocking. There are no restraints on the use of what should be a rare exception. It’s just getting easier and easier for them to hold people with no charge or trial.”

Why the record numbers?

By 5 April, Israel had detained 2,200 Palestinians in 2023. Most were released or are being held in remand. Out of a total of 76 newly-incarcerated Palestinians in March, 49 are being arbitrarily detained under administrative detention orders – meaning two of out every three new prisoners is being held without charge.

“They just cite secret information and say, ‘This person may in the future pose a security threat so they need to be detained.’”

So why are we seeing numbers unparalleled since the First and Second Intifadas? For answers, we must look beyond Israel’s new extreme-right government, says Milena Ansari, International Advocacy Officer at Addameer Prisoner Support and Human Rights Association.

“It’s basically since the Unity Intifada in 2021,” Ansari tells Jerusalem24. “We saw a vast increase of administrative detainees where Israel started arresting activists, politicians, and community leaders […] because we’re seeing a lot of people speak out loud against the Israeli occupation.”

Although the “brutality and incitement to violence” of the current Israeli administration should be taken into account, she says, the current record figures are mainly the result of an accumulation of arrests throughout 2021, 2022, and 2023.

“It’s also important to note that at the beginning of 2022 in January, the Palestinian administrative detainees (who were 300 at that time) completely boycotted Israeli military courts,” Ansari says.

As the detainees and the lawyers representing them were absent from the courtrooms and unable to appeal their renewed detention orders, “we saw that the Israeli military courts and the Israeli command used this time to issue more administrative detention orders. So there were abuses during this period, to really increase the orders.”

“Punished for being politically active”

Over the past 24 months, activists, former prisoners and community leaders have been particularly targeted under the arbitrary detention scheme, Ansari says, because Israel “wants to silence them.”

One notorious case is that of Jerusalemite lawyer and human rights defender Salah Hammouri, who was held in arbitrary detention for nine months in 2022 prior to being deported to France for “breach of allegiance to the State of Israel” following over two decades of “continuous judicial and administrative harassment” from Israeli authorities.

Cultural and academic figures also commonly find themselves targeted, such as Bilal Al-Saadi, Chairman of the Freedom Theater in Jenin, who remains in arbitrary detention on unknown charges after his arrest at a military checkpoint in September 2022.

In addition to activists and community leaders, arbitrary detention orders tend to target members of Palestinian factions (even those that belong to a party’s political rather than armed wing) as well as anyone involved in activities deemed political – including university students – or belonging to (or expressing sympathy with) a “banned organization”.

“Because what they’re doing is not a crime under Israeli military orders, the Israeli occupation uses administrative detention as a legal loophole when there is no sufficient evidence against a person or not necessarily a clear crime,” explains Ansari. “They just cite secret information and say, ‘This person may in the future pose a security threat so they need to be detained.’”

Four Palestinian Legislative Council Members are currently being detained under the policy.

“It is difficult to believe that although a foreign country is imprisoning an elderly U.S. citizen based on secret evidence and denying him the most basic due process rights, our government hasn’t taken even minimum steps to secure his release, starting by declaring him wrongfully detained.”

Arbitrary detention is also a way to target former prisoners who haven’t committed the crime necessary for their rearrest and prolonged detention. “Mainly it’s because of the situation in Palestine as a whole,” explains Ansari, who says administrative detention orders always increase during times of turmoil – “like the example of the Sheikh Jarrah demonstrations in May 2021. We had around 25 Palestinian Jerusalemites being arrested at that time because the Israelis kept justifying it as, ‘They’re former prisoners, we feel like they will be doing something.’”

“It’s part of how the Israeli occupation continually harasses former prisoners and doesn’t allow them a way to continue their life outside of prison.”

And children under military occupation in the West Bank and East Jerusalem aren’t exempt from the policy either. There are currently 11 Palestinian children held in administrative detention out of a total of 151 incarcerated children. In the last two years, at least two children (including one suffering from a rare muscular disease) were held arbitrarily for consecutive periods exceeding one year.

Where passports offer no protection

Palestinians with dual citizenship (such as French-Palestinian national Salah Hammouri) may find their foreign passport does not provide them with the level of protection commensurate to their nationality – even in the case of Israel’s staunchest allies and defenders.

A campaign is currently underway in the United States calling for the release of 76-year-old Palestinian-American Jamal Niser, whom Israel first arbitrarily detained in 2021. Israel refused to let him leave the occupied West Bank upon his release despite US intervention, and placed him under a new detention order in August 2022.

An investigation conducted by Democracy for the Arab World Now (DAWN) uncovered “classified court documents [that] clearly state that they detained him because of his involvement in Palestinian elections scheduled for that year, which were ultimately canceled. When they detained him again in August 2022, Israeli authorities claimed his detention was in relation to a financial matter without producing any evidence of wrongdoing.”

“Israel has never accused Niser of a crime, but the facts indicate that Israel is punishing him because he has been politically active in the West Bank, where Palestinians have none of the rights to free association or expression afforded to Israeli settlers,” said Sarah Leah Whitson, Executive Director of DAWN.

“It is difficult to believe that although a foreign country is imprisoning an elderly U.S. citizen based on secret evidence and denying him the most basic due process rights, our government hasn’t taken even minimum steps to secure his release, starting by declaring him wrongfully detained.”

Minority Report in real life

Israel says administrative detention orders are necessary for “security” reasons.

Israeli NGO B’Tselem defines administrative detention as “incarceration without trial or charge, alleging that a person plans to commit a future offense”, which Israel resorts to “extensively and routinely”.

The NGO charges that the measure masquerades as holding “a semblance of judicial oversight” (as detention orders must be approved by judges) while in practice Palestinians have virtually no chance of disputing undisclosed allegations, and the military court approves the orders in all but a handful of cases.

When and how did the practice emerge?

The procedure of administrative detention, in which a detainee is held without charge or trial, first emerged in the British Mandate era, based on the British Mandate Defense (Emergency) Regulations (1945).

The colonial practice was reappropriated and incorporated by the Israeli occupation under three separate laws: (1) Article 285 of Military Order 1651, which is part of the military legislation applying in the West Bank; (2) Internment of Unlawful Combatants Law (Unlawful Combatants Law), which has been used against residents of the Gaza Strip since 2005; (3) Emergency Powers (Detentions) Law, which applies to individuals holding Israeli citizenship.

Source: Addameer, Administrative Detention Fact Sheet 2022

While the procedure provides for Israeli citizens to also be subject to administrative detention orders, and a small number of Jewish Israelis have been detained without charge (according to Haaretz, a total of four between 2017 and 2022), the policy is almost exclusively used against Palestinians from the occupied West Bank and occupied East Jerusalem, and Palestinians with Israeli citizenship.

What does the law say?

Israeli military law itself – to which Palestinians in the occupied West Bank (but not Israeli settlers) are subject – prohibits arbitrary arrest and detention and guarantees the right to defend oneself from charges in military court. However, the law makes broad exceptions for “security” cases.

In international law, article 9 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary arrest, detention or exile”, while article 9 of the International Covenant on Civil and Political Rights says “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.”

Even the United States, Israel’s staunchest ally, has noted that Israel “employs administrative detention excessively”.

“The UN and Committee Against Torture have said clearly that administrative detention may amount to torture because it’s prolonged detention without any fair trial guarantee.”

The transfer of prisoners outside their territory (since the overwhelming majority of Palestinian detainees hailing from the occupied West Bank including East Jerusalem are held in prisons inside Israel) also falls foul of international and domestic Israeli law.

“Holding prisoners and detainees from the OPT inside Israel constitutes a blatant violation of the Fourth Geneva Convention, prohibiting the transfer of prisoners and detainees outside the occupied territory, and also violates basic human rights enshrined, inter alia, in Israeli law,” according to HaMoked.

Not only is this practice illegal under international law, but it also “poses significant challenges to Palestinian prisoners’ ability to receive family visits as they must acquire permits to enter Israel in order to visit their relatives in prison,” notes Addameer.

“And by the way,” adds Ansari, “many United Nations special rapporteurs and experts and the Committee Against Torture have said clearly that administrative detention may amount to torture and psychological torture, because it’s prolonged detention without any fair trial guarantee – and it’s indefinite.”

“Psychological pressure and control”

While detention orders can only last up to six months, they are indefinitely renewable. In December 2022, out of a total 870 administrative detainees, 477 had been detained for up to six consecutive months; 283 for up to 12 consecutive months; 108 for up to two consecutive years; and two had been detained for longer than two years.

Detainees usually only find out their order is being renewed hours before their planned release.

Administrative detainees dy duration in custody. [Source: B’Tselem]
Although few stints in administrative detention exceed 24 consecutive months, in practice, detainees are often rearrested under “new” secret evidence (such as Jamal Niser) often weeks or months after they first release.

Israel also often reneges on deals to release hunger strikers protesting their arbitrary detention: 42-year-old Khalil Awawdeh, who went six months without food last year as a last resort to protest his being held indefinitely without charge, saw a new order for administrative detention issued against him the day of his agreed release. He was recently sentenced to 16 months in prison for possession of a mobile phone while he was being treated at Assaf Harofeh Hospital over the course of his hunger strike.

“They use administrative detention also as a tool of psychological pressure and control,” asserts Ansari, “where they put a person in prison not telling them why they are there or when they will be released – so there’s constant feelings of anxiety, not knowing, and depression.”

What can detainees do?

Despite cases like Awawdeh’s, and the fact that detainees may technically be “helpless” to defend themselves against charges unknown to them, Ansari says hunger strikes are only one of a number of effective tools in Palestinian detainees’ hands in their fight against arbitrary detention – despite their dire health consequences.

Ansari – and Addameer by extension – believes first and foremost in the power of advocacy. “There’s an integral role for the international community,” she asserts. “I do see Israel bowing down to the pressure of the international community.”

44-year-old Khader Adnan, who has spent a combined eight years in administrative detention since 2012, is currently on the seventy-fourth day of a hunger strike which he began immediately upon his latest detention by Israeli authorities on 5 February.

This is the sixth hunger strike Adnan engages in. He has secured his release each time following pressure from an international community who became aware of his plight.

“At the end of the day, Israel cares about its reputation as ‘the only democracy in the Middle East’, so anything that portrays them as not democratic – being brutal, being violent – it really bothers them.”

Ansari says cases like Adnan’s demonstrate the effectiveness of hunger strikes as a “legitimate and peaceful way” to protest arbitrary detention. His strikes have succeeded in capturing international solidarity to such a degree, she says, that when they arrested him in February this year, Israel didn’t request an administrative detention order but instead submitted “a very fake and very vague” set of two charges against him.

“Us as lawyers, we understand that these charges are very fabricated,” says Ansari. “[It’s] only because the Israeli occupation did not want to issue an administrative detention order – because they know if Khader Adnan goes on hunger strike there will be a lot of pressure from the international community.”

And in the case of hunger strikers, pressure may come from within as well: “Israeli doctors may say they don’t want to be dealing with hunger striking detainees because it becomes a responsibility of the medical staff. And you know, there’s a deliberate policy of medical neglect inside prisons. So there’s more pressure on the Israeli government.”

Threats of collective hunger strikes by thousands of Palestinian detainees have successfully halted or delayed repressive measures in the past (most recently in March) because the prison services “were really terrified” of the repercussions of an open-ended, collective hunger strike across the prison system.

Ansari says collective action is far more likely to yield a positive impact than individual measures, and that in order for measures such as the detainees’ boycott of the military courts to be successful (rather than counter-productive as it has proved so far), the boycott needs to extend beyond administrative detainees to the whole Palestinian prisoner population.

“At the end of the day, Israel cares about its reputation as ‘the only democracy in the Middle East’,” says Ansari. “So anything that portrays them as not democratic – being brutal, being violent – it really bothers them.”

“So we understand that advocacy is an effective and strong tool in the hands of the detainees and the hands of the Palestinians as a whole.”

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