Ideas Imprisoned: Administrative Detention in the Occupied Palestinian Territory, Conditions of Imprisonment, and the Role of the International Community (Introduction to 5 Parts)
J. David Thompson
SWJ Note - This is a multipart (this introduction and 5 parts) series exploring administrative detention in Israel and the occupied Palestinian territory.
On the eve of the Second Intifada (September 2000), the Government of Israel held twelve Palestinians in administrative detention.[i] Over the next few months and years, this number skyrocketed to exceed 1,100 Palestinians held without anything resembling a fair trial.[ii] Since the Second Intifada, the Government of Israel held no less than 100 Palestinians in administrative detention at any given point.[iii] These prisoners were never informed of the charges against them nor allowed to view the evidence used by the government to justify their detention.[iv] The Israeli Government claims that national security is the justification for their detention and that the evidence is classified.[v] Given the vast variance in numbers of administrative detainees at any given point in time, allegations from human rights activists arise that the Government of Israel uses administrative detention to circumvent the criminal justice process, violating human rights by silencing unfavorable speech and limiting freedom of association.[vi]
The Government of Israel has an existential right to prevent terrorist attacks. In its efforts to promote its own security, though, it could be taking strategic losses for potential tactical wins. There is no way to identify how many people become radicalized by an adjudication process that lacks due process. To assume, however, that the Government’s practices have not caused some people to choose paths of radicalization is naïve. In seeking to prevent terrorist attacks through an extreme interpretation of “emergency,” the Government of Israel could be creating more terrorists.[vii]
This series seeks to accomplish four major objectives. First, it establishes an understanding of what administrative detention is and reviews the legal justification under Israeli law. Second, it aims to paint a picture of what actually happens to administrative detainees by looking at conditions of their imprisonment. Third, it reviews the relevant international laws, shows where gaps exist, and considers how the international community responds to the Government of Israel regarding the use of administrative detention. Fourth, the series provides alternative ways of thinking about perpetrators of administrative detention and counter-normative means to enhance international influence.
Part I provides an overview of the Israeli laws that the government uses as a legal basis for administrative detention. There are three laws that the Government of Israel uses for administrative detention: Order Regarding Security Provisions (Judea and Samaria) (No. 1651), Emergency Powers (Detentions) Law (1979), and Internment of Unlawful Combatants Law (Unlawful Combatants Law).[viii] The Government of Israel uses Order Regarding Security Provisions (Judea and Samaria) (No. 1651) for the West Bank.[ix] The Government uses the Emergency Powers (Detentions) Law (1979) to detain Israelis within its 1967 borders.[x] The Government uses Internment of Unlawful Combatants Law (Unlawful Combatants Law) for administrative detention of people living in Gaza.[xi] The most commonly used law is Order Regarding Security Provisions (Judea and Samaria) (No. 1651), and, thus, it forms the basis for the majority of this essay.[xii] Part I also states the numbers of Palestinians held in administrative detention from 2002 until 2017. It provides some statistics on sentences that the government decided to extend. Lastly, Part I examines the cognitive disconnect between those making the decision and the standard of certainty a judge needs to overturn a military commander’s decision.
Part II discusses conditions of imprisonment. The Government of Israel admits to using torture.[xiii] The Supreme Court of Israel (also referred to as the High Court of Justice) lessened the permissibility of torture, but the Supreme Court failed to ban torture outright.[xiv] The Government of Israel holds Palestinian administrative detainees with the general prison population; however, two of the three jails with administrative detainees are outside of the West Bank, which essentially amounts to holding someone abroad, making it difficult for families to visit.[xv] The Government of Israel violates the standards of detention by using prolonged solitary confinement and violates medical ethics for prisoners.[xvi] Within the past decade, the Government of Israel changed how it defines children to comply with international law.[xvii] [xviii] Nonetheless, the Government still holds children in solitary confinement.[xix]
Part III analyzes the applicable legal norms of human rights law and international humanitarian law. The Government of Israel signed and ratified the International Covenant on Civil and Political Rights, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child.[xx] Part III discusses the applicability of these treaties with administrative detention. Part III also looks to humanitarian law. The applicable humanitarian laws discussed include: Fourth Geneva Conventions (1949), Additional Protocols to the Geneva Conventions (1977), and the Regulations Annexed to the Hague Convention No. IV. Part III looks at how other countries approached the Government of Israel through the Universal Periodic Review. Lastly, Part III views prisoner treatment compared to the United Nations Standards Minimum Rules for Treatment of Prisoners.
Part IV proposes a different way that the international community may gain influence and promote dialogue with the Government of Israel by focusing on engagement through the private sector. Part IV also discusses some of the limitations of this approach when viewed singularly.
Part V provides recommendations to the Government of Israel. The obvious recommendation is to simply end the process of administrative detention. As shown in Appendix I, the Government of Israel routinely failed to accept this recommendation. The Government of Israel is unlikely to alter its current policy regarding administrative detention on behalf of this paper, but that does not mean that practitioners and advocates should fail to promote a rights-based approach to the rule of law. Part V provides recommendations that may be more palatable to the Government. With these recommendations, the Government can take significant steps towards complying with international legal norms, boost its credibility, and even enhance its national security—simultaneously.
Part VI provides concluding thoughts on Ideas Imprisoned. When reading this paper, readers should consider several questions. First, which ideas are imprisoned or imprisoning? Second, who is imprisoned by or for their ideas? Third, why and how ideas may imprison persons or persons may imprison others for their ideas? Part VI explores these questions, but readers may benefit by utilizing this framework when reading this essay.
[i] Addameer, On Administrative Detention (July 2017), http://www.addameer.org/israeli_military_judicial_system/administrative_detention.
[ii] B’Tselem, Statistics on Palestinians in the Custody of the Israeli Security Forces (Jan. 3, 2018), https://www.btselem.org/statistics/detainees_and_prisoners.
[iii] Supra On Administrative Detention.
[iv] Addameer, Administrative Detention in the Occupied Palestinian Territory, Fourth Edition 2016, Pg. 5 (2016), http://www.addameer.org/sites/default/files/publications/administrative_detention_analysis_report_2016.pdf.
[vii] This is not to call the Palestinian resistance a terrorist movement, but it does state that some Palestinians have used terrorism.
[viii] Supra On Administrative Detention.
[xiii] Committee Against Torture, Report Committee Against Torture, A/53/44 (1998) Para. 239(a), http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=A%2f53%2f44&Lang=en.
[xiv] HCJ 5100/94 Pub. Comm. Against Torture in Isr. v. Israel SC 53(4)817 (Sept. 6, 1999) (Isr). https://www.law.umich.edu/facultyhome/drwcasebook/Documents/Documents/Public%20Committee%20Against%20Torture%20v.%20Israel.pdf.
[xv] Addameer, Administrative Detainees (Dec. 2017), http://www.addameer.org/the_prisoners/administrative_detainees.
[xvi] Physicians for Human Rights – Israel, Politics of Punishment, 2016. (Mar. 2016), http://cdn3.phr.org.il/wp-content/uploads/2015/03/Politics-of-Punishment-report-phri-prisoners-palestinians-2016.pdf.
[xvii] UNICEF, Children in Israeli Military Detention: Observations and Recommendations (Feb. 2013), https://www.unicef.org/oPt/UNICEF_oPt_Children_in_Israeli_Military_Detention_Observations_and_Recommendations_-_6_March_2013.pdf. Referencing Military Order 1676.
[xviii] Convention on Rights of the Child, Concluding Observations 2-4 (June 2013), Para. 19, http://www2.ohchr.org/english/bodies/crc/docs/co/CRC-C-ISR-CO-2-4.pdf.
[xix] Committee Against Torture, Concluding Observations for the Fifth Periodic Review of Israel, (June 3, 2016), Para. 24, http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsmEKqNhdzbzr4kqou1ZPE79BvBJe97SSM1KP2v4ng3Dhx74ohsby7x4AlEgvGhwtvav7rPvZmtwpwObldkyK%2BM9cNY7svWLlYmp6PB4chW8O.
[xx] United Nations Indicators, http://indicators.ohchr.org/ (last visited Feb. 2018).