ZIE NOTEN 1, 3, 4 EN 6
In administrative detention, a person is held without trial without having committed an offense, on the grounds that he or she plans to break the law in the future. As this measure is supposed to be preventive, it has no time limit. The person is detained without legal proceedings, by order of the regional military commander, based on classified evidence that is not revealed to them. This leaves the detainees helpless – facing unknown allegations with no way to disprove them, not knowing when they will be released, and without being charged, tried or convicted.
In the West Bank (not including East Jerusalem), administrative detention is carried out under the Order regarding Security Provisions. The order empowers the military commander of the West Bank, or another commander to whom the power has been delegated, to place individuals in administrative detention for up to six months at a time, if the commander has “reasonable grounds to believe that reasons of regional security or public security require that a certain person be held in detention”. If, prior to the expiration of the order, the military commander has “reasonable grounds to believe” that the same reasons “still require the retention of the detainee in detention”, he may extend the original order for an additional six-month period “from time to time”. The Order regarding Security Provisions places no limit on the overall time that a person can be held in administrative detention, so the detention can be extended over and over. In practice, this allows Israel to incarcerate Palestinians who have not been convicted of anything for years on end.
Individuals held in administrative detention must be brought before a military judge within eight days – either of the original detention order or of its extension. The judge may uphold the order, reject it, or shorten the period of detention stipulated in it. Whatever decision the military judge makes, both the detainee and the military commander may appeal it to the Military Court of Appeals, and thereafter, to the High Court of Justice (HCJ). Hearings on administrative detention orders are held in camera, and the judges are permitted to set aside ordinary evidence law. In particular, judges may “accept evidence in the absence of the detainee or their counsel and without disclosing it to them”, if they are convinced that disclosing the evidence may “harm regional security or public security”.
Administrative detention of Israeli citizens and residents is carried out under the Emergency Powers (Detentions) Law. Over the years, Israel has used this measure against several Israeli citizens, including settlers. These are isolated cases, and in most of them, the detention lasted a few months. Since Israel “disengaged” from the Gaza Strip in September 2005, it has used the Internment of Unlawful Combatants Law to place Gaza residents under administrative detention. This measure has so far been used in very few cases. The provisions of both these laws are similar in essence to those of the military order that applies in the West Bank.
The Order regarding Security Provisions includes provisions that are ostensibly meant to protect administrative detainees, in keeping with the tenets of international law on this matter, which allow the occupying power to place residents of the occupied territory under administrative detention only in rare, exceptional circumstances. This has not stopped Israel from making extensive use of this measure in the Occupied Territories. Israel routinely uses administrative detention and has, over the years, placed thousands of Palestinians behind by bars for periods ranging from several months to several years, without charging them, without telling them what they are accused of, and without disclosing the alleged evidence to them or to their lawyers. Some of the detainees were under 18 years of age.
During the first and second intifadas, Israel held many hundreds of Palestinians in administrative detention, and the figure crossed the 1,000 mark several times in 2003 (during the second intifada). Yet the widespread use of this extreme measure is not confined to those periods: Since March 2002, not a single month has gone by without Israel holding at least 100 Palestinians in administrative detention.
Moreover, in some cases, the authorities use administrative detention as a quick and easy alternative to criminal trial, rather than to prevent future danger. This occurs primarily when they do not have sufficient evidence for indictment, or when they do not want to reveal the evidence they allegedly possess. This use of administrative detention is absolutely prohibited and totally blurs the distinction between an administrative proceeding that is intended as a prospective, preventive measure, and a criminal proceeding, whose purpose is punitive and retroactive. Israel also exploits this measure to detain Palestinians for their political opinions and for engaging in non-violent political activity.
In addition, the restriction in the Order regarding Security Provisions on the duration of administrative detention is meaningless, as the detention may be extended over and over with no time limit. Such extensions are not rare. At the end of May 2017, for instance, 475 Palestinians were being held under administrative detention in Israel Prison Service facilities. Of these, 128 had been held for six to twelve months, meaning their detention had been extended at least once, and 121 had been held for more than a year, meaning their detention had been extended at least twice.
The military order does require that detainees be brought before a judge, but this does little to prevent abuse of this measure, and the judicial proceedings on administrative detention are mostly a façade of judicial review. In the vast majority of cases, the judges accept the prosecution’s position and approve the detention order.
According to figures provided by the IDF Spokesperson, from the beginning of 2015 to the end of July 2017, 3,909 administrative detention orders were issued. Of these, 2,441 (62.4%) were extensions of existing orders. Only 48 (1.2%) were cancelled by a military court. The remaining detention orders were approved, as follows:
- 2,953 (75.5%) were approved with no amendments or limitations.
- In 390 cases (9.9%), the judges instructed that the orders be shortened, yet placed no limitation on the possibility of renewing them.
- In 501 (12.8%) cases, the judges approved the orders, in some cases shortening them, but stipulated that they could only be extended if new information came to light – which, again, would not be disclosed to the detainee.
(Note: The discrepancy between the total number of orders and the number of court decisions appears in the original. Moreover, despite our request, the IDF Spokesperson did not provide B’Tselem with figures concerning the Military Court of Appeals).
Moreover, the judges always accept the prosecution’s demand that the evidence remain confidential for “reasons of national security”. By following this practice, the judges turn the exception provided for in the administrative detention order into a rule that denies detainees any possibility of mounting a defense against the allegations. The secrecy of the evidence prevents detainees and their counsel from examining the quality, veracity and relevance of the information used against them. True, the military judges and the HCJ justices have stated that, given the confidentiality, they must fill the void and act as defense for the detainees. However, this statement is not followed up in practice. In the overwhelming majority of cases, the judges do not ask to see the ISA’s information, do not examine the military prosecution regarding the information that led to the detention, and simply accept the arguments presented to them as fact.
Moreover, in their judgments on administrative detention, the justices of the HCJ have agreed that this is an “extreme” measure that must be used carefully and in rare exceptions only. They agreed it must be used only for prevention and never for punitive purposes, and only when the danger is posed specifically by the person under detention. They also agreed that administrative detention, like all other measures, is subject to the principle of proportionality and therefore must be used only when the alleged danger cannot be prevented through criminal proceedings or an administrative measure that is less injurious to human rights. Nonetheless, the justices have upheld nearly all the administrative detention orders brought before them.
The power to incarcerate people who have not been convicted or even charged with anything for lengthy periods of time, based on secret “evidence” that they cannot challenge, is an extreme power. Israel uses it continuously and extensively, routinely holding hundreds of Palestinians at any given moment. The state makes sure to lend this policy a guise of legality by requiring the courts to review every detention order. In these proceedings, the detainees are represented by counsel; they may appeal the judge’s decision, and the hearings follow procedural and evidentiary rules. However, this is merely a façade of judicial review, as the detainees have no real opportunity to mount a reasonable defense against the allegations. Nevertheless, the courts routinely uphold the detention orders. At the end of the day, the military, the Military Advocate General’s Corps and the State Attorney’s Office, military judges and the justices of the HCJ Court are all complicit in creating this state of affairs.
TORTURE AND ABUSE IN INTERROGATION
In interrogating Palestinian residents of the Occupied Territories, the Israel Security Agency (ISA, also known by the Hebrew acronyms Shin Bet or Shabak) routinely used methods that constituted ill-treatment and even torture until the late 1990s. In doing so, the ISA relied on the 1987 recommendations of a state commission headed by retired Supreme Court Justice Moshe Landau. The commission had held that, in order to “prevent terrorism”, ISA interrogators were permitted to use “psychological pressure” and a “moderate degree of physical pressure”. This permission was grounded, in the commission’s opinion, in the “necessity defense” laid out in Israeli Penal Law. In practice, the interrogation methods used by the ISA during that time went far beyond a reasonable interpretation of the term “moderate physical pressure”.
This state of affairs persisted for years, despite the right not to be subjected to ill-treatment or torture – whether physical or psychological – being one of the few human rights that are considered absolute. As an absolute right, it may never be balanced against other rights and values and cannot be suspended or limited, even in difficult circumstances.
In September 1999, following a series of petitions filed by human rights organizations and by Palestinians interrogated by the ISA, Israel’s High Court of Justice (HCJ) ruled that Israeli law does not empower ISA interrogators to use physical means in interrogation. The justices ruled that the specific methods discussed in the petitions – including painful binding, shaking, placing a sack on a person’s head for prolonged periods of time and sleep deprivation – were unlawful. However, they also held that ISA agents who exceed their authority and use “physical pressure” may not necessarily bear criminal responsibility for their actions, if they are later found to have used these methods in a “ticking bomb” case, based on the “necessity defense”. Following this ruling, reports of torture and ill-treatment in ISA interrogations did drop. However, ISA agents continued to use interrogation methods that constitute abuse and even torture, relying on the court’s recognition of the “ticking bomb” exception. These methods were not limited to exceptional cases and quickly became standard interrogation policy.
Several joint research reports published by B’Tselem and HaMoked: Center for the Defence of the Individual, based on hundreds of affidavits and testimonials given by Palestinians who underwent ISA interrogations after the HCJ ruling, indicate that the ISA still routinely employs psychological and physical abuse in interrogations. While interrogators steer clear of the specific methods that the court disqualified, the rationale is the same: using isolation from the outside world and harsh incarceration conditions, in addition to the interrogation itself, to psychologically pressure and physically weaken the individual. This combined use of holding conditions and interrogation methods constitutes abuse and inhuman, degrading treatment, at times even amounting to torture. It is regularly employed against Palestinians in ISA interrogations, in blatant violation of international law and basic moral standards.
According to the accounts of Palestinians who have undergone ISA interrogation, they are held in inhuman conditions, including narrow, windowless cells that are sometimes moldy and foul-smelling and are constantly lit with artificial lighting that is painful to the eyes. Some detainees reported being held in solitary confinement, completely cut off from their surroundings. Some reported exposure to extremes of heat and cold, as well as sleep deprivation. Many described abominable hygienic conditions; among other things, they stated that the prison authorities do not allow them to shower, change clothes, brush their teeth or even use toilet paper. The food is intentionally poor in quality and quantity, and detainees lose weight while in custody. In the interrogation room, they are forced to sit bound to a chair, without moving, for hours and even days on end. Interrogators threaten the detainees, including threats to harm their relatives, as well as shouting and employing violence against them.
Most Palestinians who are physically or mental abused in interrogation have no way to complain until the interrogation is over. This is because Palestinian detainees are regularly denied the right to meet with counsel, and HCJ petitions against the denial of this right have been repeatedly dismissed. Also, they usually cannot use the opportunity of coming before a judge in a remand hearing to air their grievances: Most hearings are extremely cursory and, in some of them, detainees are not represented or are denied the opportunity to confer with the lawyer representing them. Most detainees are not aware of the fact that they may approach the judge on their own initiative. In any case, they shy away from sharing what they are undergoing with the judge for fear of reprisal back in the interrogation room. Even when detainees do come forward, the authorities take no action, as years of monitoring by human rights organizations reveal. Since 2001, not a single criminal investigation has been launched into a complaint against an ISA interrogator, despite hundreds of complaints being lodged with the relevant authorities. Although formal changes have been made to the apparatus charged with looking into these complaints – including the appointment of an Inspector of Complaints by ISA Interrogees inside the ISA, and the subsequent transfer of the position to the Ministry of Justice – they have done nothing to alter the situation: Hundreds of complaints, zero criminal investigations.
This system of interrogation, which relies on a combination of holding conditions and interrogator conduct, was shaped by state authorities. It is not the personal initiative of any particular interrogator or prison guard, and the actions described here are not anomalies to be weeded out by the justice system. The cruel, inhuman and degrading treatment of Palestinian detainees is inherent to the ISA’s violent interrogation policy. This policy is dictated from above, and not set by interrogators in the field.
While the ISA runs the system, a broad network of partners collaborates to facilitate it. The Israel Prison Service (IPS) adapts prison conditions to match the interrogation plan designed to break the detainee’s spirit. Medical and mental health personnel greenlight the interrogation of Palestinians who arrive at the facility – including in cases of poor health – and even hand detainees back to the interrogators after caring for physical and mental injuries they sustained in interrogation, knowing full well that they would be subjected to measures of abuse and torture; soldiers and police officers abuse detainees while transporting them to the ISA, with their commanders turning a blind eye and the MAG Corps and State Attorney’s Office not bringing them to justice or holding them fully accountable. Military judges almost automatically sign off on motions for remand in custody and effectively sanction the continued abuse and inhuman conditions. The State Attorney’s Office and the Attorney General have thus far provided ISA interrogators with full immunity. Finally, HCJ judges regularly reject petitions seeking to overturn the denial of detainee’s rights to meet with legal counsel, clearing the way for continued abuse.
All these are party, in one form or another, to the cruel, inhuman, degrading and abusive treatment to which Palestinians are subjected in ISA interrogations. By enabling the existence of this abusive interrogation regime, they all bear responsibility for the severe violations of interrogatees’ human rights and for the mental and physical harm inflicted on these individuals.
ZIE VOOR APARTHEID OOK NOOT 4