By definition, administrative detention is the incarceration of a person without trial on the allegation that he intends, in the future, to commit an act contrary to the law, even though he has not yet committed any offence. Because the measure is presented as preventive, there is no fixed term for the detention. Administrative detention is ordered without trial on the basis of an order issued by the regional military commander and relies on secret evidence, even the detainee himself is not permitted to see it. This procedure leaves the detainee in an unbearable situation, powerless in the face of allegations he does not know, unable to refute or disprove them, without an indictment or trial, without a conviction, and without knowing when he will be released.
Administrative Detention as a Punitive Measure
The Occupation authorities do not stop at detaining hundreds of Palestinian civilians administratively without charge or trial; they also seek to renew their administrative detention continuously and repeatedly, without the detainee knowing his release date. The renewal order is issued only a few days before the scheduled release, or even on the very day of release. The Occupation has previously followed a policy of releasing a detainee when the current detention order ends, only to issue a new order at the prison gate, re‑arresting and returning him to detention within minutes. Through the legal work and monitoring conducted by Addameer, which documents violations against Palestinian detainees and prisoners, a recent increase has been observed in the Occupation’s issuance of administrative detention orders against prisoners who have completed sentences based on an indictment, or issuing an administrative detention order against a detainee and, upon its expiry, presenting an indictment so that he is tried on it.
The Legal Authority Relied Upon by the Occupation
Since the beginning of the Occupation in 1967, the authorities have relied on Emergency Regulations to employ administrative detention. In 1970, Article 111 of those regulations was converted into Article 87 of Military Order No. 378 on Security Instructions (1970). Today, after amendments to Order 378, Article 285 of Order 1651 forms the legal framework for administrative detention.
The Occupation claims that, under Article 78 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), it is entitled to place persons under its control in administrative detention.
Article 78 of the Fourth Geneva Convention states: “If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at most, subject them to assigned residence or intern them.” Below we explain how the administrative detention carried out by the Occupation differs, in form and substance, from what is set out in the Convention.
The circumstances in which the Occupation employs this method of detention, and the procedures it uses, conflict with the conditions laid down by international conventions and other international standards for a fair trial. It is clear that the Convention envisages administrative detention only in very exceptional situations and as a last resort, and that, where house arrest is possible, it should be preferred because it is less harmful to the individual.
The basic principle is that all people are created free, and because administrative detention is not imposed for a clear violation of a clear law but for security reasons, it must remain the exception, not the rule. In practice, administrative detention in the Occupied Territory shows that the military commander empowered to issue such orders does so not only in very urgent cases. This is evidenced by the presence of more than 414 administrative detainees in the Occupation’s prisons today, some of whom have spent between two and three years under detention orders. What real, serious danger can a person pose that remains unchanged for two years? Some prisoners have spent years in custody after being tried for offences under military orders; when their sentences ended, they were placed under administrative detention on the grounds that they still posed a security threat.
The military commander relies in most cases on secret material, under the Second Amendment to the Administrative Detention (Temporary Provision) Order (Amendment No. 2) 1988 (Order No. 1254 in the West Bank and No. 966 in Gaza). This material supposedly indicates the individual’s dangerousness, yet cannot be disclosed for fear of revealing sources or methods. In such cases, the Israeli Supreme Court has held repeatedly that the evidence may remain undisclosed, and the authorities are not obliged to honour the suspect’s right to a fair trial. The Fourth Geneva Convention makes no mention of any authority to rely on secret evidence to establish a person’s dangerousness.
Jean Pictet’s legal commentary on the Convention emphasises that the power in Article 78 exists only where prosecution is impossible because the person has committed no criminal‑law offence, or where danger stems from an act that is not defined as an offence, or from a declared intent to act without any accompanying deed.
The military orders governing administrative detention indicate that most detainees are held on suspicion of belonging to an unlawful organisation or engaging in military activities, allegations that usually appear in the text of the orders themselves. Many detainees are also subject to public evidence, such as confessions by other detainees attributing specific acts to them. Hence, the difference between what the Geneva Convention envisages and what the Occupation does is fundamental.
Administrative Detention of Jerusalem Residents
The authority to issue an administrative‑detention order against Jerusalem residents may lie with the Minister of Defence or the regional military commander if the alleged activities occurred in the Occupied Territory. Under Israeli law, from 1948 to 1979 the British Emergency Regulations 1945 (specifically Article 111) were applied. In 1979, the Emergency Powers (Detentions) Law 1979 was enacted.
Article 2 of that Law authorises the Minister of Defence, and only in very rare cases, the Chief of Staff, to issue administrative‑detention orders. Article 4 requires that the detainee be brought within forty‑eight hours before a district‑court president, who may confirm, shorten, or annul the order. The decision may be appealed to a single justice of the Supreme Court. The maximum duration of an order is six months, renewable, and the order must be reviewed twice within each six‑month period. The judge may accept secret evidence when reviewing the order. If the order is issued by the military commander of the Occupied Territory, the military orders described above apply, with no regard to the detainee’s status as a Jerusalem resident.
Judicial Oversight:
Article 79 of the Fourth Geneva Convention refers to Article 43 of the same Convention, which provides that “any protected person who is interned or placed in assigned residence shall be entitled to have such decision reviewed as soon as possible by an appropriate court or administrative board established by the Detaining Power for that purpose. … If the internment or assigned residence is maintained, the decision shall be reviewed periodically and at least twice yearly, with a view to its modification in favour of the said protected person if circumstances permit.”
It is clear from the foregoing text that review of the detention decision is preferably conducted before a committee composed of several persons, rather than a single individual, so as to enable a more objective examination of the detainee’s case. The aim of the review is to amend the decision in a manner that serves the detainee’s interests, not the reverse. A survey of the military orders and their amendments throughout the long years of occupation indicates that the purpose of the legal review of detention orders does not conform to the requirements of the Convention.
The review is conducted by a military judge, not a committee. Previously, an intelligence officer was summoned for every file to present the secret evidence in detail before the judge, but during the re‑occupation of the West Bank cities this procedure was abandoned; the judge now decides whether to summon intelligence personnel. In the overwhelming majority of cases the judge sees only a résumé of the evidence against the detainee, not the entire secret file, and has no opportunity to question the intelligence officer about how the information was obtained or how its reliability was verified.
The detainee is brought before the judge within eight days from the issuance of the administrative‑detention order, whereas under Israeli law the period is forty‑eight hours. This term is subject to the discretion of the military commander, who is empowered to make adjustments whenever deemed necessary, as occurred in April 2002 when the period was extended to eighteen days.
Formerly, if an order was issued for six months it had to be reviewed twice during that period by a military judge, with a right of appeal against every judicial decision. Since April 2002 this procedure has been abolished: the order is now reviewed only once, with a right of appeal. The military commander was also required to specify the place of detention in the order itself; today this is no longer necessary, and in theory an administrative detainee may be held in any detention centre or prison.
It is evident that the military commander possesses authority to introduce any amendments to the military orders governing administrative detention that accord with “military necessity,” without regard to any international standards relating to detainees’ rights, whether under the Fourth Geneva Convention or human‑rights law pertaining to the rights of persons in detention.
Since the beginning of the occupation Israel has refused to recognise the applicability of the Fourth Geneva Convention to the territory occupied in 1967, claiming that it did not seize the land from a sovereign state at the time—namely Jordan and Egypt. Israeli Supreme Court decisions over the years have affirmed this position while noting that humanitarian provisions of the Convention are applied, a tendency that has grown stronger in recent times. It is worth noting that the current Attorney‑General once suggested that Israel might be obliged to apply the Fourth Convention to the occupied territory, but no practical step has been taken in this regard. In its judgment in Ajuri (HCJ 7015/02 Ajuri et al. v. Commander of IDF Forces in the West Bank et al., () 3, 352, P. 367‑368), the Supreme Court affirmed that Article 78 of the Convention defines the legal framework for administrative detention, from which it follows that the military commander must amend the detention regulations to comply with the Convention’s requirements.
An analysis of certain cases heard before the Israeli military courts will demonstrate that the procedures employed by those courts fail to meet fair‑trial standards. Although the Fourth Geneva Convention does not explicitly require that such standards be applied to protected persons, Articles 2 and 3(d) allow us to conclude that the Occupying Power is bound by standards applicable in peacetime or regarded as essential by the international community for safeguarding human dignity and rights. Accordingly, Israel, as an Occupying Power, is obliged to apply fair‑trial guarantees in cases of administrative detention as well.
A review of military‑court decisions and procedures relating to administrative detention reveals widespread and systematic breaches of these standards by the Occupying Power, as will be illustrated through the presentation of selected cases below.
It suffices to note here that, during the re‑occupation of Palestinian cities and the arrest of thousands of Palestinians, hundreds of detainees were placed under administrative detention. Judicial oversight was carried out before military judges inside the detention camp, each judge reviewing more than 150 files per day, can it be believed that a judge could study and follow each file in a manner that satisfies the conditions of a fair trial?!
Conditions of Detention for Administrative Detainees:
Section IV of the Fourth Geneva Convention, “Rules on the Treatment of Internees,” sets forth the rights of detainees, their conditions of detention, medical care, and all obligations incumbent upon the Occupying Power to ensure that detainees are held in humane conditions that do not infringe their dignity.
Without entering into exhaustive detail regarding all these rights, an examination of the living conditions of administrative detainees held in military detention camps or in the Ketziot, Ofer, and Megiddo prisons shows that the Convention’s provisions are not adequately observed by the Occupying Authority.
Administrative detention, as practised by the Occupation authorities, constitutes a form of psychological torture and amounts to a crime against humanity and a war crime under the Rome Statute, which criminalises the denial to any prisoner of war or protected person of the right to a fair and regular trial. Hearings in administrative‑detention cases are conducted in camera, thereby depriving the detainee of his right to a public hearing, in violation of the International Covenant on Civil and Political Rights, which guarantees the right to a public trial.
The first and most important guarantee of a fair trial is that the detainee be informed, in a language he understands, of the nature of the charges against him so that he may prepare his defence. From the moment of arrest until release, the administrative detainee is unable to learn the reason for his detention; all he is told is that classified material indicates he “poses a threat to the security of the area.” Faced with the show trials convened to “review” his administrative detention, the detainee has no option but to await the renewal of his detention order—repeatedly and for an indefinite period—or his release whenever the intelligence services so decide, without any opportunity to defend himself or refute the suspicions against him. This confirms that administrative detention is arbitrary and that its perpetrators must be held accountable, while detainees are entitled to reparation for their unlawful and arbitrary confinement under international law.
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