[News] Administrative detention should be banned
News at freedomarchives.org
Tue Nov 15 08:56:45 EST 2005
Administrative detention should be banned (1/2)
Jeff Handmaker and Adri Nieuwhof, The Electronic Intifada, 11 November 2005
Israel has a long history of detaining people
without trial, quite often for long periods,
based on an administrative instead of judicial
order based on secret evidence. Such orders may
be issued at the initiative of a military
commander, in accordance with Military Order Number 1229 of 1988.1
Based initially on the British Mandate Defence
(Emergency) Regulations of 1945, the Israeli
government uses administrative detention as a
tool to silence and oppress Palestinians. Due to
international criticism in the 1970s, the measure
was temporarily suspended. However, in 1985
Israeli Defence Minister Rabin started to use the
measure again in the framework of his "iron fist" policy.
Some Palestinians have spent over five years in detention without trial.
Administrative detainees are held both in
military detention facilities as well as in
facilities run by the prison service. In August
2005, 596 Palestinians from the Occupied
Territories were held in administrative detention
according to the IDF's own statistics. Since
February 2005, the Prison Service has refused to
provide Israeli human rights organisation
B'Tselem with reliable figures on detainees and
prisoners held in its facilities.
Administrative detention in the occupied territories
In 1970, Israel issued its first military order
authorizing the military commander of the region
to issue administrative detention orders. In
1988, further additional military orders were
issued in the West Bank and the Gaza Strip to
extend the policy of administrative detention.
These orders authorize the issuing of
administrative detention orders without
designating a maximum period of time for the
detention. The NGO Addameer, a Palestinian
prisoners' support and human rights organisation,
reports that the first paragraph of the latest military order states:
"If a Military Commander deems the detention of a
person necessary for security reasons he may do
so for a period not in excess of 6 months, after
which he has the right to extend the detention
period for a further six months according to the
original order. The detention order can be passed
without the presence of the detainee ..."2
Amnesty International describes administrative
detention in Israel as "... a procedure under
which detainees are held without charge or trial.
No charges are filed, and there is no intention
of bringing a detainee to trial. By the detention
order, a detainee is given a specific term of
detention. On or before the expiry of the term,
the detention order is frequently renewed. This
process can be continued indefinitely." 3
Administrative detention is a measure that is
overwhelmingly targeted at Palestinians in the
occupied Palestinian territories. Over the years,
only nine Israeli citizens from settlements in
the West Bank have reportedly been detained for
periods up to six months. Use of administrative
detention increased almost 300-fold in a single
year between 2001 and 2002. Each year since has
seen hundreds of administrative detention orders
being issued against Palestinians.4
According to Addameer, the total number of
prisoners was 8,324 at the end of 2004, including
117 female prisoners and 344 children. 4,400 were
held in Israeli prison service facilities and
3,924 in military detention camps, of which
respectively 277 and 798 were administrative detainees.5
Reporters without Borders write that in 2002 "...
more than 20 Palestinian journalists (were)
arrested since the Israeli occupation of
Palestinian towns and cities began on 29 March".6
In 2003, the same organisation reported that "at
least 13 journalists had been imprisoned (and) a
total of 954 cases of administrative detention
were recorded by human rights groups".7
The number of prisoners keeps growing as the
result of daily 'casual' arrests and nightly
premeditated arrests of Palestinians by the IDF
and the General Security Services.
Israel has claimed that it uses administrative
detention as a necessary security measure and is
only used when normal legal measures or less
severe administrative measures are not sufficient to ensure security.
The panic night
Ahmed (not his real name) shared his experience
of administrative detention with us, confirming
that the security agencies have used the ruse of
'security' in order simply to suppress critical
views amongst Palestinians. What he experienced was dehumanising.
Ahmed first took a deep breath, in order to bring
the memory back. "I don't know why I was in the
detention. They told me I am there because I am
social activist. That's all they said," he tells.
He describes the night he was arrested as "the panic night".
"They arrested me from my house in 2002 at 2
o'clock in the morning. The door of my house was
detonated and then shooting was heard very loudly
inside the house and in the street. At that
moment I thought that I am dead, me and my
family. Then they used the speakers to demand us
all get out of the house, otherwise they will explode the house on our heads.
"They tied my hands behind my back, and covered
my eyes. Then they led me into a vehicle. I was
on the ground. Most of the time they were kicking
me all over my body. After a time the vehicle
stopped and they took me to somewhere that I
don't know. Later I discovered that the trip was
just a 'vacation' compared with the next.
"After several long hours sitting on stones I got
help from a guy there who took off the cover from
my eyes and released my hands from that plastic
band. I remember that I spent almost 24 hours
without drinking a drop of water or eating
anything. Even if I wanted to pee it took over
two hours to allow me, in a mobile bathroom -
very dirty one, no water source in it."
"After three nights sleeping on the stones they
took me to Ofer Jail near Ramallah by special bus."
Ahmed continues: "The jail was divided into 11
sections. Each section held 120 prisoners,
distributed into 6 tents. The facilities in each
section include 6 bathrooms constructed with zinc
sheets, distributed into 2 showers and two
bathrooms for urine and another two for a sink.
There was just a little channel coming out of the
bathrooms. The ground of the jail and in all the
tents was asphalt. The beds were made of wood
sticks over a mattress without a pillow and with
two sheets. These didn't save the prisoner from
the cold in the winter at all. The prisoners
spent the nights during the winter wearing their
jackets to bed. Otherwise they would freeze from
cold. Every prisoner has an 'account' managed by
the jail. Money is paid in by a member of the prisoner's family."
Ahmed then spoke about the food, which almost
never included meat - protein usually came in the
form of an egg at dinner. It is possible for
teenage prisoners to purchase extra items such as
chocolate with their 'account', but only at
prices much higher than what a person would pay in the West Bank.
"The security counting began at 6 o'clock am,
which meant that all the prisoners should sit on
their knees in front of their tent to be counted.
The prisoners kneel ten in every row, then a
soldier comes to count the prisoners, accompanied
by the representative of the section. This took
place three times a day. If you look at any
guard's face directly you will punished with one
day in isolation, or to pay a fine from your 'account'.
"If any prisoner complains of any kind of disease
or sickness, anything like high blood pressure or
flu or any infection, the medicine is always one
tablet of Paracetamol. For any kind of emergency,
a response from the jail administration could
happen after one day, if you are lucky."
"In Ofer jail, no one interrogated me. They just
sent me to a tent with another 19 persons, but
the tent was barely enough for 6-8 persons. After
three weeks there, the administration of the jail
called me to a military court."
Ahmed recalls: "The sentences of administrative
detention are made in a 'court', which is a hall
of 7 metres by 5 metres in the jail. There is a
military judge, the intelligence officer, the
lawyer and translator. It is just a fake court to
tell you that there is secret evidence that no
one could know, even the judge himself, on advice
from the intelligence officer to the judge. This
is in order to punish a prisoner with six months'
administrative detention or to extend his period
to another three to six months.
"When it is done, the prisoner does not know the
prison is going to ask for an extension until
just a few hours before his release time. After
that, within two weeks he will be led to the
court to hear this from the judge. This always caused me a serious depression."
Israeli lawyers handling administrative detention
cases validate Ahmed's experience. They are all
too familiar with the harsh living conditions
(and worse) of detainees in the military jails.
"While most prisoners are accommodated in tents,
at times (they are) overcrowded and as a rule
furnished with wooden planks (boards) and covered
with rather thin mattresses to sleep on.
Occasionally, boxes serve as tables and/or
cupboards. A prisoner's plank (is) about 1/2
meter from his neighbour's and is what he has as
his individual living space. Barbed wire and a
wall surround several tents forming a section.
There are showers and lavatories inside each
section and a small space is left for exercise ..."8
Contacts with family members and legal
representatives are also highly restricted.
"Prisoners are not free to communicate with
family and friends ... During often-imposed
sieges and special closures and always during the
Jewish holidays the visits are suspended. ...The
visitors and the visited undergo meticulous,
humiliating strip searches. During the visit
prisoners are separated from the families by a
double mesh, all physical contact, even with
babies, is forbidden. Proper conversation is
impossible. The prisoners are not allowed to
communicate by phone - not even with their lawyers."9
"A living hell"
Most of the Palestinians in administrative
detention are held in Ofer Military Camp in the
West Bank, the Ansar 3 / Ketziot Military Camp in
the harsh Negev desert, Beituniya and Kfar Yuna
Military Prison camps. Another Palestinian who
was detained there, and who shared his
experiences with us, described the notorious
Ansar 3 prison as "... a living hell ... living
amongst the snakes and the scorpions".
The fact that detainees are held in tents and
subject to extreme weather conditions without
appropriate protection creates a highly dangerous
situation. Ex detainees from Ansar 3 / Ketziot
expressed to the authors the difficulties of
dealing with the extreme temperatures in the
desert, where the days are unbearably hot and the
nights can be extremely cold. This summer it was
reported in the press that 18-year old Jawad abu
Mgheisib died in detention in the Negev, reportedly from medical neglect.10
Already in 1998, Amnesty International reported
that "... in Megiddo Military Detention Centre
Marwan Ma'ali who was arrested in August
committed suicide in September. Psychiatrists in
the detention centre had reportedly diagnosed him
as depressive with suicidal tendencies and
recommended his release or hospitalisation. An
Israeli human rights organisation had described
his isolation cell as 'unsuitable for habitation
for any human being'. Nevertheless, his
administrative detention had been extended for
five months shortly before his suicide." 11
Systematic and routine
The Palestinian Centre for Human Rights deals
with 150 to 300 cases of torture per year.
According to this organisation there are also
clear patterns that an institutionalised process
of routinely holding people under administrative
detention exists. The Center further reports that
the vast majority of the Palestinian detainees
are exposed to torture and humiliation. Beatings
and forced stress positions are widely used, as
well as suffocation practices. Even electric
shock treatment is reportedly still practised.12
Last year a Palestinian ex-prisoner spoke at a
conference in London about his experiences:
"Having spent 14 and half years in jail ... I
could provide you with thousands of stories of
torture and maltreatment. Normally when we think
of torture we imagine brute physical force being
applied to naked flesh, but today I will tell you
a different story, something which happened to me.
"Having been deprived of sleep for 2 or 3 days, a
tin bucket was placed on my head. I was made to
stand still. My interrogator then turned on a
shower tap above my head, the water dripped out
slowly. I was then left by my interrogator and
watched by a guard for several hours. You feel
like you are losing you mind. After several hours
my interrogator returned to mock me, was I
'having fun enjoying being clean for once' ... In
such circumstances, whilst others are having
similar things done to them in nearby rooms, the
stress become unbearable. Many crack and begin hallucinating." 13
Imad Sabi, director of a Palestinian NGO in
Ramallah encouraged people to boycott the 1996
Legislative Council elections. He was arrested by
Israeli troops in December 1995, shortly before
the Palestinian Authority was to take over in
Ramallah and was held in administrative
detention. On 5 March 1997, from Megiddo Military Jail, he wrote the following:
"Your number will come up one day. Not to go
home, but so that you are informed of yet another
extension. Extensions are, I surmise, a subtle
and malicious form of psychological torture. One
can almost see the gleeful smile on the
'invisible' face of the man in the shadows
putting this signature on the next extension
order. 'Another four, three, two.... His life is
mine!', he says. My life is mine! My life is Reem's, is Deena's."
Adding to countless personal stories and the well
documented reports handled by the Palestinian
Centre for Human Rights, Palestinian Prisoners'
Association, Hamoked, B'Tselem, Amnesty
International and others is the UN Special
Rapporteur on Torture, who has routinely
documented numerous cases of torture or other
cruel, inhuman or degrading treatment.14 These
cases confirm that there is a systematic pattern
of arbitrary detention, torture and/or inhuman
and degrading punishment or treatment.
In the next part, we discuss how Israel's policy
on administrative detention leads to grave violations of international law.
[ <http://electronicintifada.net/v2/article4294.shtml>NEXT ]
Administrative detention should be banned (2/2)
Jeff Handmaker and Adri Nieuwhof, The Electronic Intifada, 11 November 2005
Israel's policy on administrative detention,
described in the first part of this article, is
not only grossly immoral, but it also leads to
the violation of numerous principles and binding
obligations of international law.
The position of administrative detention in international law
International law explicitly prohibits arbitrary
arrest or detention and mandates that "... anyone
who has been the victim of unlawful arrest or
detention shall have an enforceable right to
compensation".15 According to Adalah, Israel has
sought to justify its policy of administrative
detention by the remarkable claim that it has
been under a "state of emergency since 1948" and
is therefore justified in suspending or
"derogating" from certain rights, including the
right not to be arbitrarily detained.16
This position is not supported in international
law. Derogations are only permissible under very
strict conditions, namely a "public emergency
threatening the life of the nation". And even in
situations of public emergency, a state is not
permitted to violate certain "core human rights",
including the right to life and prohibition of
torture and other cruel, inhuman or degrading
treatment or punishments. This last prohibition
is often violated in the context of administrative detention.
Israel's policy of administrative detention
furthermore does not respect the safeguards
required by international humanitarian law, which
aims to protect civilians in occupied
territories, in particular articles 43 and 78 of
the Fourth Geneva Convention.17 These two
important articles were introduced in order to
prevent the use of detention as an arbitrary
means of controlling a population. It is only to
be used as an exceptional measure. Israel's use
of administrative detention has, in fact, been an
almost routine measure used against political
activists as much. if not possibly more so, than
those suspected of serious crimes.
Article 3 of the Fourth Geneva Convention states
that "... persons taking no active part in the
hostilities ... shall in all circumstances be
treated humanely". Finally, Article 72 of the
Additional Protocol to the Geneva Convention
states that all persons detained have recourse to
human rights in the event of an "international armed conflict".18
Regardless of the precise legal nature of the
'conflict', which international lawyers continue
to argue over, we accept the useful conclusion of
the International Court of Justice in its 2004
Advisory Opinion that, this notwithstanding, the
Geneva Convention "is applicable in the
Palestinian territories" on the basis of earlier
conflicts between Israel and neighbouring
countries. We also accept the Court's conclusion
that "the protection offered by human rights
conventions does not cease in case of armed
conflict", with the exception of certain lawful
derogations, as discussed earlier.19
Essentially, the safeguards provided by
international humanitarian and human rights law
were designed to protect against the use of
administrative detention beyond simply an
exceptional measure. They are further reinforced
by long-standing guidelines on the treatment of persons in detention.20
Jelena Pejic, a legal advisor to the
International Committee of the Red Cross (ICRC),
which is considered the most important
international body monitoring the implementation
of international humanitarian law, stresses that
depriving a person of their liberty for reasons
of public security should only be considered as
"an exceptional measure of control".
So, what is meant by an "exceptional measure"?
Pejic cites the example of "administrative
detention for the sole purpose of intelligence
gathering", which she insists "cannot be justified".
The basis for considering administrative
detention as an exceptional measure she explains
is twofold: firstly, that "personal liberty is
the rule" rather than the exception and secondly,
there is a well-established assumption that a
country's criminal justice system should be "able
to deal with persons suspected of representing a danger to State security". 21
In other words, administrative detention is a
measure that should be taken only after various
other alternatives have been considered. In view
of the foregoing, it would seem that the
detention of activists, simply on the basis of
their political views (for example those
campaigning for elections) would clearly also "not be justified".
Pejic writes that principles and safeguards for
the application of administrative detention are
essential. The guidelines she refers to include
that administrative detention be exercised on a
case-by-case basis, without discrimination of any
kind and that indefinite detention is not
permissible. Furthermore, certain procedural
safeguards must be in place concerning access to
information about the reasons for being
administratively detained, providing detainees
the right to challenge the lawfulness of
administrative detention by an impartial body and
access to legal assistance, periodical review,
contact with family, access to medical care and
access to the detainees by (amongst others) the
ICRC. Detention at a secret location would also not be permitted.
Israel does not respect these safeguards
It would appear that the only guideline Israel
comes even remotely close to respecting is the
right of periodical review. However, without any
of the other safeguards, and in particular
without providing reasons for holding someone in
administrative detention, the ability to
challenge such an order is effectively
meaningless. As one Israeli lawyer who has
defended countless Palestinians being held under
administrative detention orders has put it, "the law is almost a dead letter".
Both Hamoked and B'Tselem also observe that the
Israeli authorities apply administrative
detention in violation of these essential
safeguards provided by international law. They
cite widespread misuse of the powers granted to
the military. Both Amnesty International and
Human Rights Watch too have condemned Israel's
policy on administrative detention.
B'Tselem cites the following examples. "The
authorities use administrative detention as a
quick and efficient alternative to criminal
trial, primarily when they do not have sufficient
evidence to charge the individual, or when they
do not want to reveal their evidence... Israel
administratively detains Palestinians for their
political opinions and non-violent political
activity. In this way, the authorities expand the
meaning of danger to 'security of the area' by
violating freedom of expression and opinion."22
By refusing to ensure even basic, minimum
standards for the exercise of administrative
detention and abusing its power by using this
"exceptional measure" in a routine manner and
against civilians, Israel creates a situation
where these essential safeguards and especially
articles 3, 43 and 78 of the Fourth Geneva
Convention are routinely violated. Further, other
principles embodied in international human rights
instruments are also violated, as explained below.
Israel's policy on administrative detention also
creates a situation where grave violations of
international law take place, including
international prohibitions against torture.
In 1986 Israel signed the UN Convention Against
Torture, which they ratified in 1991. Despite a
1999 Supreme Court Case that forbade torture and
only allowed certain forms of "moderate pressure"
in very exceptional circumstances, torture of
Palestinian detainees is still quite widespread,
based on reports from Israeli, Palestinian and
foreign NGOs as well as UN organisations.
The Supreme Court ruled that various methods of
torture by the General Security Service (GSS)
used such as violent shaking, covering the head
with a sack, tying the detainee to a small tilted
chair (known as position abuse), sleep
deprivation and painful shackling were, when applied cumulatively, illegal.
The Court, however, left the circumstances under
which "moderate pressure" might be applied
largely unaddressed. As such, the Israeli courts
effectively legalised certain forms of "moderate
physical and psychological pressure", while
leaving the decision up to the government as to
when it might be exercised during the interrogation of Palestinian detainees.
In his latest report to the 60th session of the
UN Commission on Human Rights, the Special
Rapporteur on Palestinian territories occupied by
Israel states that (despite this Court ruling),
"... allegations of torture and inhuman treatment
of detainees and prisoners continue. Such
treatment includes beatings, shackling in painful
positions, kicking, prolonged blindfolding,
denial of access to medical care, exposure to
extreme temperatures and inadequate provision of food and water."23
In short, administrative detention, as practised
by Israel leads to just the sort of violations
contemplated by the International Court of
Justice when it condemned not only Israel's
construction of a Wall, but also its "associated regime".24
Extending the use of administrative detention - tightening the screws
Despite international pressure, there is little
sign that Israel has any intention of softening
its policy on administrative detention. Indeed,
it seems very intent on extending its use to more
people, with even fewer rights and to even use
administrative detention in order to interfere
with the PA elections that are set to take place in January 2006.
In recent weeks, there have been several
confirmed reports that hundreds of people have
been administratively detained, though it is
virtually impossible to determine the exact
number. According to the Palestinian Central
Committee for Local Elections, the latest round
of administrative detention appears to be aimed
at candidates who simply have either belonged to
Hamas or have previously been administratively detained.25
Another development reported in the press is that
Israel has been offering "voluntary deportation"
instead of administrative detention to
Palestinian detainees who have spent more than
two years in detention camps in the Negev. 26
The latest measures being introduced by the
government of Israel include incommunicado
detention without trial for up to 50 days
(extendable) and "... empowers the General
Security Service to delay bringing persons
suspected of committing security offenses before
a judge for a period of ninety-six hours",
drastically extending the period currently
provided for. As B'Tselem report, "If enacted,
the law will severely breach the fundamental
rights of suspects in criminal proceedings, and
increase the risk of maltreatment during interrogation." 27
This latest measure in particular, if passed by
the Israeli Knesset, would extend an already
brutal policy and place administrative detainees
even further at the mercy of their interrogators.
International action needed
Nigerian human rights advocate, Wole Soyinka,
also wrote of his experiences as an
administrative detainee: "It is wrong. The
question is not whether I can bear it or not. The
issue is should I have to bear it."
The international community should not remain
silent and be bystanders as violations of human
rights and humanitarian law are perpetrated against the Palestinian people.
While the ICRC seeks to ensure that minimum
standards are followed in the exercise of
administrative detention, the experiences of
administrative detention in Israel and indeed in
many other countries (such as South Africa) show
that a state willing to use such an "exceptional
measure" is rarely guided by human rights or
concern for humanity. These experiences
demonstrate that the risks of abuse and grave
human rights violations far outweigh any security
considerations gained by its use.
Administrative detention is used by Israel in a
highly arbitrary manner without even basic
safeguards in place. It also leads to other,
grave human rights violations, such as inhuman
and degrading treatment and torture.
Human rights advocates should raise their voices
anew against the gross injustices caused by the
use of administrative detention.
The use of administrative detention is immoral,
its consequences illegal. Governments should be
pressured to hold Israel accountable and end the
practice of detaining people for years in harsh
conditions without charges or trial.
Jeff Handmaker is a human rights lawyer in The
Hague and part-time Ph.D. researcher at the
Netherlands Institute of Human Rights (SIM),
Utrecht University. Adri Nieuwhof is a
psychologist and human rights advocate in the Netherlands.
Detention, Amnesty International, last updated 10 November 2005.
at the end of 2004, Addameer.
journalist freed : Reporters Without Borders
demands release of three others, Reporters Without Border (11 October 2002).
and the Occupied Territories - Annual report 2003, Reporters Without Borders.
 Presentation Tamar Peleg Sryck, London, December 2004.
 Ibid, Tamar Peleg Sryck.
 Saed Bannoura,
al-Sajeen demands Israel probe the death of a
detainee, IMEMC & Agencies (29 July 2005)
Report, 1998, Amnesty International.
 Presentation Jaber Wishah, Palestinian
Ex-prisoners Association, December 2004.
 Civil and Political Rights, Including the
Questions of Torture and Detention, Report of the
Special Rapporteur, Theo van Boven,
 The UN International Convention on Civil and
Political Rights, Article 9(5). The UN has
established a special
Group on Arbitrary Detention.
to the UN Human Rights Committee (PDF) Adalah (22 July 2003).
Committee of the Red Cross (ICRC).
 Jelena Pejic,
principles and safeguards for
internment/administrative detention in armed
conflict and other situations of violence (PDF) ICRC (June 2005).
Opinion on the Legal Consequences of the
construction of a wall in the occupied
Palestinian territory, International Court of
Justice, 9 July 2004, respectively, paragraphs 101 and 106.
Body of Principles for the Protection of All
Persons under Any Form of Detention or
Imprisonment, Adopted by General Assembly
resolution 43/173 of 9 December 1988.
 Jelena Pejic,
principles and safeguards for
internment/administrative detention in armed
conflict and other situations of violence (PDF) ICRC (June 2005).
detention in the Occupied Territories, B'Tselem.
practices affecting the human rights of the
Palestinian people in the Occupied Palestinian
Territory, including East Jerusalem (PDF) Report
of the Special Rapporteur John Dugard, A/60/271 (18 August 2005).
the Advisory Opinion: Possible Future Strategies,
Jeff Handmaker, The Electronic Intifada (20 September 2004).
 Source: Palestinian Central Committee for Local Elections.
 Saed Bannoura,
offers "voluntary deportation" instead of
administrative detention, IMEMC & Agencies (5 October 2005).
enabling prolonged incommunicado detention passed
its first reading in the Knesset plenum, B'Tselem (3 November 2005)
TOPIC: Detention and Torture
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