Administrative detention dodged a bullet on Tuesday [February 21]. On that day, Israel’s High Court of Justice held an emergency hearing and decided to approve a settlement between the government and the attorneys of Khader ‘Adnan, an administrative detainee who was on day 67 of his hunger strike. The decision was unprecedented: for the first time in the history of administrative detention, the government pledged not to prolong it. ‘Adnan decided to end his hunger strike later that day; he had won.
Originally, the court decided to hold the hearing two days later, on Thursday. That would have been day 69 of ‘Adnan’s hunger strike, coming too close to the threshold of 70 days of hunger, from which there is no recovery, only certain death. Someone in the government apparently decided this was courting PR disaster, and the court convened two days ahead of time, and saved ‘Adnan’s life.
Legally, administrative detention is a relic of the British Mandate, which ended in May 1948 but many of whose laws are still in force in Israel. Specifically, it is a part of the 1945 Emergency Acts. These provisions, enacted by the British at the height of the Hebrew resistance movement (naturally, the British considered its members to be terrorists, and hanged some dozen of them), granted military commanders in the field sweeping and draconian powers. According to them, for instance, a military commander can order the destruction of a house if he believes that one of the residents was supportive in any way of a terrorist act. The IDF used this power, until recent years, to destroy the houses of the families of Palestinian terrorists — even when the attackers themselves were dead. Israel codified it into its own laws in 1979.
But what is it? It is an arrest of an individual, without the need for a formal trial. An official arrests the individual, and he never sees the evidence against him, and thus cannot challenge it. Often, the detainee does not even know what he is suspected of. The Israeli security forces often claim — a claim which by its nature cannot be verified or refuted — that the detention is the result of secret intelligence against the detainee, which cannot be disclosed for fear of exposing intelligence sources. While it has been used against both Palestinians and Jews, its powers within Israel and in the Occupied Territories are different.
In Israel, an administrative detention order must be signed by the minister of defense, and the case must be reviewed within 48 hours by a judge, and every three months by the president of a district court. While this power has been used, it has been used sparingly — no one has the data, but certainly no more than a dozen Israelis were detained under it in the last decade — and while the minister can extend the detention beyond six months, this has not been done in at least 30 years.
In the Occupied Territories (OC), any military commander can order an administrative detention, though as a rule such orders are signed by the general commanding the region, after the Israeli Security Agency (ISA, AKA Shin Beth) submits to him a request for it. While there is an appeal process, going up to the High Court of Justice, the lawyers of the Association for Civil Rights in Israel (ACRI) know of only one such appeal which was accepted in the history of the process.
But what makes administrative detention in the OC so odious, what makes human rights NGOs term it a form of torture, is its unpredictability. The detention may indeed end after its allotted period of six months — or the government may renew it, often on the day the detainee is supposed to be discharged. The detention may be extended time and time again, with no limit. According to the information of B’Tselem, a leading Israeli human rights NGO, Israel currently holds 309 administrative detainees, 88 of them held between one year and two years, 16 between two years and four-and-a-half years, and one has been held for over five years, which means his detention was extended nine times. The number of administrative detainees was much higher in the past: in January 2008, for instance, Israel held 813 administrative detainees.
Now, Israeli security has a perfectly pliable system of military courts in the OT, with an impressive conviction rate of 99.76%, which means that of every 1,000 defendants, less than three are acquitted. Those courts accept “secret information” against defendants, shown only to the judge but not to the defense. So why won’t the ISA take the administrative detainees before its well-trained military courts, and provide the courts with the secret intelligence? One suspects the evidence is simply too flimsy even for those courts.
The system has been heavily criticized during its history. Menachem Begin, when he was the opposition leader, called the Emergency Acts “laws worse than the Nazis,’” and on at least one occasion — when the government administratively detained members of an ultra-Orthodox underground movement — accused the government of “creating a concentration camp.” But upon becoming prime minister, he left the system in place. He ordered the ISA to stop torturing detainees (it disobeyed the order and lied about it), but the system was too essential to the occupation to be dismantled.
‘Adnan’s hunger strike (he demanded to be either charged or discharged) focused world attention on the Israeli administrative detention system. Had he died, Israel would be under heavy pressure to dismantle it. The hasty deal may have saved the system — or maybe not. Several other detainees went on a hunger strike recently, and each one of them is a potential crisis.
‘Adnan, a member of Islamic Jihad, is an unlikely human rights hero. Yet, in bringing the system of administrative detention to its knees, he has become one.
Yossi Gurvitz is an Israeli journalist and blogger, writing in English mainly for +972 Magazine.