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Administrative detention
 
BACKGROUND
 
Administrative detention is a procedure outside the judicial process whereby a person can be detained without charge or trial without having committed an offense. A military commander can issue the order detaining a person for up to six months at a time. Administrative detention has been used on a large scale by the Israeli military in the occupied Palestinian territory (oPt) since June 1967 - rising and falling depending on prevailing circumstances. 
 
According to publicly available data, the use of administrative detention orders by Israeli military authorities peaked in the 1970s, resurging after the first and second Intifadas. More recently administrative detention orders have been on the rise again with 1,131 Palestinians (including 18 children) being held under this procedure in June 2023. This represents the highest level since 2008.
 
Whilst Israel has maintained military courts in the oPt since June 1967 in which hundreds of thousands of Palestinian civilians have been prosecuted for violating Israeli military law, administrative detention orders are a separate procedure and are issued by the Executive branch (an Israeli military commander) with limited rights of review or due process. 
 
The circumstances in which an administrative detention order might be issued instead of a prosecution in the military courts are varied, and include: a desire not reveal the nature or source of the alleged evidence against an individual (such as an informant); insufficient evidence to support an indictment; to curtail political activity; or a desire to deter/prevent future offences. 
 
In December 2011, Israeli military authorities in the oPt suspended issuing administrative detention orders to children. However, following a four-year hiatus and without explanation, the military authorities recommenced using the procedure in October 2015. As of June 2023, there were 18 children being held in administrative detention.
 
LEGAL FRAMEWORK
 
Administrative detention is permitted under international law in strictly limited circumstances, such as "imperative reasons of security" (Geneva IV - art. 78) or "in time of public emergency which threatens the life of the nation" (ICCPR - art. 4) - the idea being that it is a procedure that  should only be used in exceptional and limited circumstances and not as a substitute for a judicial process with all the legal rights and protections that this entails. Geneva IV provides for an appeal process and periodic review of an administrative detention order every six months. 
 
The basis for administrative detention under Israeli military law is to be found in Military Order 1651 (articles 285-294). Under these provisions a person can be detained for up to six months with an indefinite number of renewals. An administrative detention order can be reviewed by a military court judge but the review process is generally based on secret evidence which the recipient of the order, and his or her lawyer, is not entitled to see. Under the review process the military court judge can either confirm, revoke or reduce the term of the order. An appeal is also available to the High Court of Justice (HCJ) which has stated that administrative detention should only be used as a preventative measure when no other means are available. 
 
GENERAL CRITICISMS
 
The UN has noted that "administrative detention is an anathema in any democratic society that follows the rule of law. When the democratic state arrests and detains someone, it is required to charge the person, present its evidence in an open trial, allow for a full defense and try to persuade an impartial judiciary of its allegations beyond a reasonable doubt." Further noting that "administrative detention is a penal system that is ripe for abuse and maltreatment". 
 
In circumstances where administrative detention orders are used inappropriately, for example as a convenient substitute to a judicial process, then the ensuing detention may be deemed arbitrary and in violation of basic protections included in the Universal Declaration of Human Rights (1948) (Art. 9); and the International Covenant on Civil and Political Rights(ICCPR) (Art. 9). Further, the appeal process against these orders is largely illusory due to the inability of the recipient to review the evidence and the HCJ rarely questions the information on which the detention orders are made or examines the decisions of the military court judges. 
 
While there is legal justification for the use of Administrative Detention in extraordinary circumstances, the UN Committee Against Torture has criticized Israel's military for the excessive use of the procedure which in certain circumstances can amount to cruel, inhuman or degrading treatment or punishment. Further, the systematic use of Administrative Detention orders to further an illegal enterprise, such as the unlawful annexation of territory (de facto or de jure), would render the practice illegitimate.
 
Cases
  1. I.A.M.O. - April 2022
  2. N.B.U.U. - March 2022
  3. A.A.A.R. - May 2021
  4. S.M.H.A. - September 2019
  5. H.I.R.Z. - August 2019
  6. M.H.F.A. - March 2016

 

Updated: June 2023