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Israeli Abusive Administrative Detentions - Israeli Abusive Administrative Detentions

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Israeli Abusive Administrative Detentions
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"Contrary to a criminal procedure, in which the evidence is generally disclosed, the privileged evidence prevents administrative detainees and their counsel from examining (its) quality, scope, accuracy, and relevance" to be able to refute it. "Defense counsel must, therefore, grope in the dark when questioning the prosecutors" to guess at which approach may uncover the reasons for detention. Even so, prosecutors often say they can't respond as their answers are "privileged material," solely for the judge. The HCJ accepts this as a given, making judicial fairness impossible under a system designed to deny it.

Even judges don't see all ISA material and usually don't request it. As such, they ignore caution and prevent counsel from conducting a proper defense. In addition, detainees often aren't told what danger they pose or what their detention will prevent. And judges let prosecutors get away with this, making a mockery of the rule of law, including for minors.

Yet international law grants them special protections. Under Article 37 of the Convention on the Rights of the Child, no child shall be deprived of his or her liberty unlawfully or arbitrarily. Arrest, detention or imprisonment must conform to the law, only be used as a last resort, and for the shortest period possible. In addition, all children must be treated humanely, respecting their needs, access to family members,  proper legal counsel, other assistance, right to challenge the legality of their detention, and get prompt disposition. Israel ignores international law in all respects and treats minors the same as adults.

Further, most administrative detainees are held in Israel, contrary to international law that prohibits their being held outside the occupied territory. As a result, families can't visit loved ones because entry permits are practically impossible to get.

Israel's Unlawful Combatants Law

It's similar to America's law that international law expert Francis Boyle called a legally nihilistic perversion of justice. Yet under Israel's Unlawful Combatants Law (UCL), Palestinians may be detained indefinitely without trial or hope for judicial fairness. UCL defines an unlawful combatant as anyone not entitled to POW status under international law, who either took part in hostilities against Israel (directly or indirectly) or belongs to a force carrying them out.

An officer as low-ranking as captain may order someone interned for 96 hours if he has "a reasonable basis for believing that the person brought before him is an unlawful combatant." But the burden of proof falls on  victims, not their accusers.

Once an order is issued, the chief of staff officer, a major general, may issue a permanent internment order if he has "a reasonable basis for believing" that the unlawful combatant designation is accurate and the person threatens state security. No rules of evidence apply so Palestinians must prove otherwise, and under this law, no time limits do either, so detention can be forever, without trial and with no justice.

Judicial Review and Presumptions Specified in the Law

Internees must be brought before a District Court judge within 14 days from the date of the internment order's issuance. If he approves it, detainment is indefinite, subject to regular six month reviews after which internees may continue to be held or released at the judge's discretion. His decision may be appealed to the Supreme Court, but rarely does it intervene.

UCL is further strengthened by two presumptions:

  • that releasing unlawful combatants will harm national security, directly or indirectly, even without evidence; and
  • during or after hostilities, by "determination of the Minister of Defense....a certain force is carrying out hostilities against (Israel) or that the hostilities of that force....have come to an end or have not come to an end, (so claiming it's ongoing) shall serve as evidence in any legal proceeding, unless the contrary is proved."

UCL's 2008 Revision

In 2008, the Knesset expanded its internment powers to let the government declare the "existence of wide-scale hostilities," during which time internees may be held for seven days prior to issuing a permanent internment order. In addition, lower ranking brigadier-generals may do it, and judicial review authority shifts from the District Court to military one established especially for this purpose.

Use of the Law

It's used primarily against Gazans but may as well in the West Bank, so far affecting 54 persons:

  • 15 Lebanese nationals since 2002, all of whom have since been released as part of a prisoner exchange with Hezbollah following the 2006 Lebanon war; and
  • 39 are Gazans, including 34 interned in 2009 after Operation Cast Lead; nine are still held.

Supreme Court Judgments on the Law

In 2008, the High Court ruled the law constitutional, and its president, Justice Dorit Beinisch, stated that:

the "mechanism provided in the law is a mechanism of administrative detention in every respect."

Thus, Administration Detention Law rules apply to UCL. Everyone interned must be for prevention, not punishment for a past act, and those affected must be:

"members of terrorist organizations in a state of ongoing hostilities in a territory that is not part of Israel, where a relatively large number of enemy combatants is likely to fall into the hands of the military forces during the fighting."

In most cases, Israel opts for this law because it:

  • grants greater state powers;
  • provides fewer individual protections;
  • shifts the burden of proof to them;
  • judicial review is less frequent;
  • no state of emergency need exist; and
  • a sole high-ranking officer, on his discretion alone, may order anyone interned.

Criticism

UCL's original purpose was to hold foreigners as "bargaining chips," a provision the Supreme Court later prohibited. Its purpose was to:

"create a combination of administrative detention and prisoner of war status, a draconian incarceration track that grants extremely minimal rights and protections to the detainee. On the one hand, the state can prosecute such a person for taking part in hostilities, while, on the other, it can hold him in prison without trial as if he were a prisoner of war, and release him only at the end of hostilities, regardless of the personal danger he may or may not pose if released."

The law was passed even though the 1979 Emergency Powers (Detentions) Law served the same purpose.

Despite subsequent changes since enactment, UCL clearly violates international law as does America's version. Even Israel's High Court held that no "unlawful combatant" status exists in international humanitarian law. These persons are civilians entitled to Fourth Geneva and other legal protections.

Two of its provisions are especially egregious - the presumption, without evidence, that a detainee poses a threat, and the claim that ongoing hostilities release prosecutors from proving it. Detainees are allowed to prove their innocence, but doing so is practically impossible because how can they prove a negative. It's their word against prosecutors, and for non-Jews the task is daunting, especially since most "evidence" is secret for reasons of national security.

In addition, UCL is broadly defined even though international law permits administrative detentions only in exceptional cases when there's no other way to avert danger. Israel uses it repressively to detain Palestinians indefinitely, using secret evidence that may not exist. Yet High Court Justice Elyakim Rubinstein held that:

"It is not possible to hold a fair proceeding where there is material that the defense does not have the opportunity to try to use for its needs."

Final Comments

Israel uses administrative detentions repressively, in violation of the letter and spirit of international law. In all cases, security considerations must be balanced against individuals' rights to due process and judicial fairness.

Detentions based on secret evidence without trial or meaningful judicial review are "the most extreme measure that an occupying state may use against residents of the occupied territory." Used indiscriminately subjects hundreds of Palestinians to injustice. It's an old story from a state affording it only to Jews.


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