The Israeli regime of occupation has been practicing a policy of administrative detention (hereinafter AD) for the past 57 or more years. It inherited the policy from the British Mandate and has been practicing it, and escalating it, until the present day.
The policy is one whereby Palestinians are arrested based on a secret file to which neither the accused nor his/her lawyers have access. The military prosecutor alleges that this secrecy indicates that the accused constitutes a threat to the region’s security, which makes it necessary to detain and imprison them without submitting any charges against them and without a normal trial. In other words, those who are administratively detained have no recourse to any legal defense since no open charges have been laid against them. The occupation authorities further allege that the secret information obtained must remain secret in order to protect the sources of information, thus hampering lawyers from arguing effectively in defense of the detainees.
This paper seeks to examine the manner in which the occupation regime employs AD as a tool of oppression and control of the people of Palestine, specifically during intifadas and other popular uprisings, and as one of the easiest ways available to that regime to put the largest possible number of Palestinians behind bars without resorting to normal judicial procedure. The paper is based in essence on statistics issued by organizations active in prisoner affairs, upon a review of Israeli military laws and orders, upon reports, past and present, related to the crime of AD, and upon personal observations by the author of proceedings of the military court in Ofer and its decisions.
The paper has five subsections and a Conclusion. The first discusses the escalating acts of AD during intifadas and popular uprisings; the second discusses the AD of students and activists in the field of human rights; the third deals with the legal amendments passed by the occupation regime to facilitate AD; the fourth considers AD as a war crime in accordance with the basic law of the International Criminal Court; the fifth and final considers AD as a form of consistent psychological torture.
Escalating acts of AD during intifadas and popular uprisings
Although the occupation regime has been practicing AD ever since the start of its occupation, it has intensified its use during intifadas and popular uprisings with the aim of silencing any Palestinian opposition to the occupation and suppressing any protests. Thus, during the First Intifada the number of detainees in the two years up to 1989 reached 1794. At the height of the Second Intifada in 2003, the number reached 1007, compared to 34 detainees in 2001.[1]
At the height of the Jerusalem Uprising which began in 2015, the number of detainees also grew apace, reaching 463 until the end of 2014, and 685 by the middle of 2016.[2]
With the sweeping assault on the Palestinian people which began after October 7, 2023, the occupation regime began a widespread campaign of detention which took in all sectors of the Palestinian people. The detentions focused at first on the West Bank and Jerusalem and the occupied Palestinian interior right until the start of the ground assault on Gaza, when the campaign of detention came to include the Palestinians in the entire Gaza Strip.
Since October 7, last, and until mid-September 2024, i.e. over the course of more than 11 months, the occupation regime detained more than 10,900 Palestinian men and women from the West Bank, Jerusalem and the occupied Palestinian interior, releasing some and detaining most of them. Amidst this genocidal war being waged upon the people of Palestine, the occupation regime, seeking to suppress any uprising or protest against its crimes, transferred 80% of detainees to AD[3]. Within the space of 11 months, more than 8872 detention orders were issued, some new and others renewals of earlier orders, so that the number of administrative detainees by mid-September 2024 has reached more than 3400 detainees, including 40 children (less than 18 years old) and 27 women.[4] This number of detainees arrested arbitrarily is unprecedented and is the highest since 1967.
Administrative Detention of students and activists in the field of human rights
Through AD, the occupation regime targets intensively and especially university students and activists in the field of human rights, seeking to nip in the bud any initiative or movement directed against its crimes. On the one hand, the regime of occupation throws into prisons under AD students and social activists, considering them as the vanguard of popular resistance. On the other hand, it detains journalists and defenders of human rights, considering them to be mobilizers of popular action.
When one examines cases of detention in recent months, it becomes clear that most leaders of popular movements and street demonstrations, plus a number who joined them, have been arrested under AD. Notable among these arrests are those of young Palestinian women, some of whom are students, who were transferred to AD for having exercised their right to peaceful assembly, a right guaranteed by all international conventions and treaties, to which the occupation state has been a party throughout its years of occupation. After October 7, the Israeli forces of occupation arrested more than 140 male and female students at Palestinian universities, most of whom were transferred to AD,[5] and further arrested 15 former deputies in the Palestinian Legislative Assembly, include former deputy Khalida Jarrar, of whom 13 were transferred to AD. Most were eventually released following the end of the detention period, and 3 former deputies were arrested after October 7[6].
The occupation regime treats as a punishable criminal act any popular activity that challenges the occupation. However, since it is unable to bring forward any charges against political and social activists and defenders of human rights, it resorts to AD as the easiest way to throw Palestinians into prison for months and years on end, renewable indefinitely, without presenting any charges against them and without normal judicial procedures. All that is needed is for the occupation intelligence services to allege that a certain detainee constitutes a threat to the region’s security. In fact, this is done in an attempt to suppress and terrify the Palestinian people through arresting anyone who leads or takes part in any popular movement.
Not content with committing egregious crimes against the Palestinian people, the occupation regime detains anyone who exposes these crimes in any manner whatsoever. Thus, the regime targets Palestinian journalists who go about their normal work of documenting and publishing the crimes of the occupation on social media or on radio and TV. Since October 7, the regime of occupation has arrested 108 Palestinian journalists, eventually releasing some but keeping 59, of whom 7 female and 14 male journalists languish in AD.[7] The rest are awaiting trial on charges of “incitement.” In other words, anyone who utters one word against the crimes being done to the Palestinian people will be arrested, even if it is a journalist who is doing his/her work as guaranteed by international treaties and conventions.
As for the occupation targeting human rights activists, the group which monitors arbitrary detention affirms that these too are protected by law and that their detention administratively raises grave concerns regarding Israel’s systematic endeavor to silence all who defend Palestinian human rights.[8]
The group that monitors arbitrary detention has expressed its forebodings that Israeli military courts will be used to try Palestinian civilians, explaining that trials of politicians, journalists and human rights defenders before such courts constitutes a violation of the basic legal principle whereby military courts are empowered to try only military personnel who commit military crimes. The UN Human Rights Council has also affirmed that trying civilians before military courts can only be done in exceptional cases where a state can prove it did so for absolutely necessary and justifiable reasons, or in cases where ordinary courts are unable to conduct these trials.[9] By acting in this manner against Palestinian civilians and human rights defenders, the occupation regime is in violation of basic legal principles, while trying them before military courts lacks the minimum legally required to guarantee a fair trial.
Legal amendments passed by the occupation regime to facilitate the administrative detention of the Palestinians
The occupation regime employs the law as an instrument of war during intifadas and popular uprisings by enacting new laws and military orders or by amending previous laws and orders, with the aim of intensifying repression and control over the people of Palestine and foiling all means and instruments of protest or resistance.
During the First Palestinian Intifada, more specifically in 1988, the occupation regime issued military order number 1229 for the West Bank and number 941 for the Gaza Strip, according to which the power of issuing administrative detention orders against Palestinians was granted to officers of the rank of colonel or higher, after that power had been restricted to the top military commander. These orders also terminated all judicial reviews before courts as regards AD orders while preserving the right of detainees to submit appeals to a consultative committee which would eventually forward its recommendations to the military commander.[10]
However, following October 7, the occupation regime began to enact a series of judicial amendments to Israeli military orders and laws with the aim of further tightening its control over the Palestinian population. In this regard, the Israeli government declared a state of special emergency on October 8, followed by enacting the first amendment as per the temporary military order 2141 which dealt with judicial sessions held to extend periods of detention and with judicial reviews of AD orders using video conference.[11] In other words, the order forbad bringing detainees in person before the courts and allowed long distance sessions, preventing the families of detainees from attending court sessions. Five months later, and on March 10, 2024, the occupation regime allowed only one family member to attend court sessions, when before it had allowed two members.
The occupation regime also began to issue “up to the hour” instructions whereby the detention period in issuing an AD order was extended for 144 hours, formerly 72[12], in other words double the days before. This occurred as a result of widespread campaigns of detention and extensive resort to the policy of AD, together with the inability of the occupation authorities to deal with a huge number of cases in the scope of the three days specified beforehand. All this was done to facilitate the arrest of the largest possible number of Palestinians and to transfer them to AD. The amendment further specified that the detainee should appear before a judge for a judicial review within twelve days of the date of the AD order, formerly eight days. This too enabled the occupation regime to deal with the mounting cases of detention.
Despite these amendments intended to facilitate detentions, the occupation regime flouts them by not adhering to what they stipulate. Lawyers have documented numerous cases in which the occupation presented a detainee before a judge nine days after his/her detention in flagrant violation of the above-mentioned amendment. During this period, the detainees, unable to attend the court in person, and totally isolated from the outside world, suffer most of all from not knowing the results of the sessions that concern them, since court decisions, whether on review or on appeal, and sometime supreme court decisions also, are issued at a later time and lawyers are informed later still. The detainee, however, is only informed inside his/her prison many days, sometimes weeks, later, and thus knows nothing about the verdict. The lawyer and the family are frequently informed of a new order extending AD, without the detainee knowing about this until a period that can last up to a fortnight.
Administrative detention as a war crime
According to Israel’s military orders, the military commander of a district is the person responsible for issuing AD orders against Palestinians in the West Bank and Gaza while in occupied Jerusalem it is the responsibility of the Israeli Minister of National Security. This means that the executive-administrative authority is empowered to detain Palestinians without its orders being subject to any judicial process.
The occupation regime alleges that it carries out AD in accordance with the Fourth Geneva Convention whose article 78 permits AD[13], but that article restricts the use of AD, considering it to be one of last resort and for temporary and force majeure reasons only. However, the occupation regime has, ever since the start of occupation, employed AD in a systematic and widespread fashion against all sectors of Palestinian society, using it as an alternative to a trial or to punish detainees. This is a flagrant violation of the text of the Fourth Geneva Convention.
Through use of AD in this manner, the occupation regime violates normal judicial procedures and their guarantees. The Rome Statute of the International Criminal Court states that denying a prisoner of war or any other protected individual their right to a fair and orderly trial can constitute a war crime, constituting grounds for liability and accountability. In the case of AD, the detainees are not tried according to normal court procedures and are denied their right to be informed of the charges against them and thus the right to defend themselves. A detainee appears only before a military judge at a judicial review session in order for the judge to be apprized of the secret material provided by the military prosecutor. In almost all cases, the judge simply confirms the detention for the entire period mentioned in the AD order. Judicial review sessions are held in secret and out of public view which again violates fair trial procedures and prevents any external observation or investigation of these pro forma sessions.
These violations committed by the occupation regime which prevent a fair trial in cases of AD constitute a war crime as defined by the basic law of the International Criminal Court under Article 8 A, section 6, where administrative detainees are denied the right to a fair and regular trial and their right to be informed of the charges against them, in addition to holding judicial review sessions and appeals in secret and without allowing the public to attend and observe the proceedings.
In tandem, and over many years, several international organizations have condemned the systematic occupation policy of AD, and some have demanded a final stop to it. Thus, the UN Human Rights Council, in its concluding remarks on the fourth regular report from the occupying state concluded that the state of Israel administratively detains Palestinians in an arbitrary and illegal manner. The Council asked Israel to stop AD as well as the use of secret evidence and to make sure that those administratively detained must either be tried speedily if they’ve committed a criminal offense or be released.[14]
Administrative detention: persistent psychological torture and persistent resistance
AD is a form of psychological torture exercised upon a detainee, his/her family and environment, and this for various considerations the most salient of which is the following: No specific date is ever set for releasing detainees. This means that detainees can never know or expect to know the date of their release. The occupation regime can renew AD the very same day the earlier period had expired, in accordance with the legal power granted to the military commander, who can renew AD indefinitely. The families of detainees are thus completely in the dark as to when their loved ones might be released, and an uncertain future hovers over their life. An accurate, vivid, and detailed description of the psychological torment suffered by administrative detainees is found in `Abd al-Raziq Farraj’s book on AD, where he recounts the moments of waiting and expectations just before the end of a period of AD as follows: “The spiral of waiting and expectation begins in the last month of the period of detention as each paper arrives at the prison section where a detainee is being held: will this carry the news of a renewal of my AD? Eyes and ears follow every movement until finally the paper announcing renewal of detention is delivered. This is a scene which is repeated many times, as many as are needed to try to subdue and control a detainee’s life. Renewal orders can be repeated ten or more times.”[15]
Following October 7, the torment of detainees has doubled, first because the occupation regime imposed total isolation on all detainees. Family visits are totally prohibited, this being the only human contact between detainees and their families now that families are forbidden to attend judicial review and appeal sessions. Second, since the occupation regime deliberately delays conveying court decisions or orders renewing detention to a detainee, this latter is subjected to lengthy periods of expectation, causing him/her considerable psychological anxiety, in addition of course to physical torture, and keeping detainees hungry and thirsty and, increasingly, denying them medical treatment as is now happening to the Palestinians in Israel’s prisons.
The use of AD by the occupation regime against all sectors of Palestinian society is an international crime in the full sense of the term. The widespread campaign of arrests over the past year of ongoing genocide against our fellow Palestinians in Gaza is taking place in an attempt to repress and subjugate the Palestinian people and to prevent them from exercising their basic right to freedom of expression, to be politically active, and to determine their own destiny. Despite the illegality of AD, being arbitrary in nature, and despite repeated international requests for the occupation regime to stop that policy, that regime persists in practicing it with mounting intensity against the Palestinians in view of the immunity from any accounting enjoyed by the regime’s army and leaders. This applies in particular to the military governor who is responsible for issuing AD orders on a collective and systematic basis, and on a wide scale against various sectors of the Palestinian people but without being held to account. In attempting to challenge the crime of AD, the detainees have across time resorted to several means such as collective or individual hunger strikes in addition to their boycotting military courts considered by them to be mere kangaroo courts.
Administrative detainees began to challenge the crime of AD ever since the years of the First Intifada, when, under grave detention conditions, and in opposition to AD, the Prisoners’ Movement announced hunger strikes between February and March 1989. During the years of the Second Intifada, between 2002 and 2005, the detainees employed several means to challenge AD, its constant renewal orders and abysmal conditions of detention. Decisions taken by the jailers were disobeyed, loud protests were raised against AD and its repeated renewals, and new decisions remained unsigned and undelivered.[16]
The year 2014 was a landmark in the story of the challenges offered to AD. This is when the detainees declared an open and mass hunger strike against the AD policy, ending without the signing of any agreement due to external reasons, the most salient of which was the then Israeli onslaught on Gaza.[17] Although the demands of detainees for a final end to the policy of AD were not met, it nevertheless marked an important and organized step taken by the detainees who united to challenge that policy.
Since the detainees are aware of the purely formal nature of Israel’s military courts, deliberations began to formulate a common attitude against them by considering military judges to be mere instruments of the military-colonialist regime and by regarding such courts as lacking the barest minimum guaranteed for a fair trial. Accordingly, and in 2018, the administrative detainees took the collective step of boycotting military courts and in their announcement stated the following: “We are convinced that the basic step in challenging the illegitimate and immoral policy of AD resides in boycotting the Zionist judiciary system which has always striven to embellish the ugly face of colonialism. In other words, we shall not permit them to entrench their lies as regards their alleged adherence to international law and the existence of an independent judiciary review process.”[18]
Towards the end of 2021, the detainees again decided to declare a total boycott of military courts, to commence at the start of 2022, under the slogan “We’ve decided to be free.” The introduction to the announcement made by the Committee of Administrative detainees runs as follows: “Pursuant to steps already taken by administrative prisoners to challenge the policy of illegitimate, arbitrary and immoral detention; and since Israeli military courts are an important part of the occupation system that seeks to oppress all active sectors of our people, indeed to besiege, rob, and plunder every Palestinian right including the right to liberty; and given the fact that these courts are merely barbaric and racist organs that have clipped hundreds of years from the lives of our people under the hammer of AD; and given the purely formal character of these courts whose decisions are known beforehand to the military governor, this policy has grown in viciousness to include children, women, the sick and elderly together with all activist cadres of our people under the flimsiest of pretexts and with the aim of breaking our will and putting an end to our national expectations…”[19]
Despite all the attempts made by the administrative detainees to challenge the regime’s capricious and irrational policies, and to build up over the years a collective and organized movement to put an end to these policies, the occupation regime has resorted to all sorts of means to foil the Prisoners’ Movement. By adopting a series of measures to sever all ties among prisoners and to isolate them from one another, the regime has striven to prevent any organized resistance to the system of occupation.
As the vicious and brutal campaign against prisoners and detainees continues to expand following October 7, with the occupation regime preventing them from challenging its campaign, the Israeli Prisons Authority began by sealing off all sections and prison cells, preventing the movement of prisoners within them. Then it ceased to deal with prisoners’ representatives and dealt with each prisoner separately as regards their life inside the concentration camp. Leaders of the Prisoners’ Movement were locked up in isolation cells and all contacts between them were severed except for those jammed together in the same cell. The Prisons Authority forbad prisoners and detainees from going out into prison yards with the object of preventing prisoners in various cells from contacting one another. Several months later, however, the jailers allowed prisoners to go into the yards for one hour only, and for one or a maximum two cells at any one time.
All these measure are intended to isolate prisoners and detainees from one another and prevent any contact between them or any attempt to organize any protest against their appalling conditions of detention or against the policy of AD, a policy now expanding at a very fast rate, making it difficult for prisoners and detainees to face the diverse criminal acts being practiced against them at this present stage.
[1] معطيات عن الاعتقالات الإدارية في الضفة الغربية، بتسيلم، انظر.
[2] المصدر نفسه.
[3] "الاعتقال الإداري والتحريض"، مؤسسة الضمير لرعاية الأسير وحقوق الإنسان، على الرابط.
[4] تقرير إحصائي صادر عن مؤسسات الأسرى (هيئة شؤون الأسرى والمحررين، نادي الأسير الفلسطيني، مؤسسة الضمير لرعاية الأسير وحقوق الإنسان)، للمزيد على الرابط.
[5] معلومات من وحدة التوثيق والدراسات في مؤسسة الضمير لرعاية الأسير وحقوق الإنسان، مع العلم بأن هذا الرقم هو فقط ما تم إحصاؤه من خلال الباحثين الميدانيين، والعدد الفعلي هو أعلى.
[6] المصدر نفسه.
[7] إحصاءات وحدة التوثيق والدراسات في مؤسسة الضمير لرعاية الأسير وحقوق الإنسان.
[8] رأي رقم: 68/2022 بخصوص المعتقل بشير الخيري، تبناه الفريق العامل المعني بالاحتجاز التعسفي في جلسته الخامسة والتسعين.
[9] رأي رقم: 13/2023 بخصوص المعتقل صلاح حموري، تبناه الفريق العامل المعني بالاحتجاز التعسفي في جلسته السادسة والتسعين.
[10] عبد الرازق فراج، "الاعتقال الإداري في فلسطين كجزء من المنظومة الاستعمارية" (بيروت: مؤسسة الدراسات الفلسطينية، 2020)، ص 15.
[11] الأمر رقم 2141 بشأن عقد الجلسات من خلال الفيديو كونفرنس للأسرى والمعتقلين والمحتجزين خلال حالة الطوارئ (تعليمات موقتة) (يهودا والسامرة) 2023، ساري من تاريخ 15/10/2023.
[12] الأمر بشأن تمديد مواعيد الاعتقال الإداري (السيوف الحديدية) (تعليمات موقتة) (يهودا والسامرة) رقم 2148 لعام 2023، بتاريخ 20/10/2024.
القوانين المستحدثة والتعديلات القانونية خلال عام 2023، مؤسسة الضمير لرعاية الأسير وحقوق الإنسان.
[13] المادة 78 من اتفاقية جنيف الرابعة المؤرخة في آب/ أغسطس 1949: "إذا رأت دولة الاحتلال لأسباب أمنية قهرية أن تتخذ تدابير أمنية إزاء أشخاص محميين، فلها على الأكثر أن تفرض عليهم إقامة إجبارية أو تعتقلهم. تتخذ قرارات الإقامة الجبرية أو الاعتقال طبقاً لإجراءات قانونية تحددها دولة الاحتلال وفقاً لأحكام هذه الاتفاقية. وتكفل هذه الإجراءات حق الأشخاص المعنيين في الاستئناف. ويبت بشأن هذا الاستئناف في أقرب وقت ممكن. وفي حالة تأييد القرارات، يعاد النظر فيها بصفة دورية، وإذا أمكن كل ستة شهور، بواسطة جهاز مختص تشكله الدولة المذكورة."
[14] الملاحظات الختامية للجنة حقوق الإنسان على التقرير الدوري الرابع لدولة لإسرائيل، التقرير باللغة الإنكليزية.
[15] فرّاج، مصدر سبق ذكره، ص 38.
[16] المصدر نفسه، ص 67.
[17] المصدر نفسه، ص 68.
[18] بيان صادر عن مؤسسة الضمير لرعاية الأسير وحقوق الإنسان، بتاريخ 13/2/2018.
[19] بيان صادر عن لجنة المعتقلين الإداريين في سجون الاحتلال، بتاريخ 20/12/2021.