Administrative detention is inherited from the British, perfected by the US and abused by Israel

by Dr Mustafa Fetouri

A group of Palestinians perform a demonstration in support of Palestinian detainees in Israeli prisons, carrying posters and photos of the detainees in Gaza City, Gaza on August 09, 2023. [Ali Jadallah – Anadolu Agency]

Last month Israel released 240 Palestinian prisoners as part of a deal with Hamas in which the latter released 105 hostages held in Gaza. Most of the released Palestinians were women and children, and almost all of them were held under Israeli’s so-called administrative detention process, a legacy of the 1920-1948 British mandate period in Palestine. Indeed, while releasing 240 prisoners, Israel has arrested 4,700 Palestinians in the occupied West Bank since 7 October.

What is this system in which Palestinian children, women and men can find themselves jailed for unknown crimes and spend years incarcerated with neither charge nor trial?

Administrative detention was used against the Palestinians as early as 1945, even before Israel was created on their land in the 1948 Nakba. When Palestine was governed by the British Mandate authorities (the “mandate” was given to Britain by the League of Nations, the forerunner of the UN) the British imperialists used the procedure to jail Palestinian activists and resistance fighters who rose up against their rule. Israel revived the process, integrating it into its own legal system as early as the 1970s. It became used widely and further entrenched in Israel’s occupation legal system in 1988. Several amendments only gave the occupation authorities wider legal power to detain Palestinians indefinitely, including children, for relatively trivial “offences”, such as throwing stones, or no offence at all.

Israel’s B’Tselem, a human rights group devoted to the rights of Palestinians under Israeli occupation, defines administrative detention as when a person is “held without trial without having committed an offence,” simply because he/she is planning to “break the law in the future.” It criminalises people based on their suspected intentions. And because the measure is supposed to be “preventive”, B’Tselem adds, it “has no time limit.” Meaning a person can be held indefinitely without any trial.

Victims of administrative detention are jailed on the orders of Israel’s regional military commander based on “secret” evidence that is not revealed to them or their lawyers, on the grounds of regional or public “security”. The period of detention is initially six months, which can be extended for another six months and so on, as long as the commander believes that the person continues to pose a security threat.

The detainee can face a trial of sorts, but only before a military court where the judge can extend the detention period based on whatever charges are believed to be applicable, and the detainee can never know what those charges are. There is no law that binds the judge to disclose the charges to anyone, including the detainee’s legal counsel. This creates a vicious legal circle in which the best defence will fail simply because the charges they are defending against are not known. How can any lawyer defend someone against an unknown charge?

A recent high profile case of this bizarre “legal” procedure was that of Khader Adnan who was detained under administrative detention and never charged. He went on hunger strike in February this year, when he was first arrested, and died in May. His death further heightened tensions between Israel and Palestinian resistance groups. It contributed to the oppression of Palestinians that led to the courageous Hamas attack on Israel on 7 October, which ignited the ongoing Israeli genocide against the Gaza Strip which has killed nearly 21,000 Palestinian civilians to date.

Why is Israel using such a controversial and inhumane “law” against the Palestinians? To put it simply, it is to intimidate anyone who rejects the Israeli occupation of the West Bank, East Jerusalem and the Gaza Strip.

The system feeds into the basic Israeli tactic never to recognise Palestinian fighters as legitimate resistance combatants, but rather as “terrorists”.

They are even denied the label “criminals”, as that might give them some rights, including the right to be tried in civilian instead of military courts.

FOA supporters gather outside the Israeli Embassy in London to call on Israel to comply with international law and end its unfair use of administrative detention, on 6 Jan 2022 [Friends of Al-Aqsa]

The administrative detention procedure is very similar to the process used by the US at Guantanamo Bay detention camp within its naval base in Cuba. Most of those held there — up to one thousand individuals — have been abducted and tortured from over a dozen countries. They are defined as enemy combatants in America’s failed and destructive “war on terror”, and have been shut out of the US legal system.

They are thus denied any chance of having their day in a court of law to defend themselves. Secret “evidence” was used in “Gitmo” military courts yet many detainees never faced any charges. This creates an embarrassing legal situation for the US, but successive presidents feel able to ignore the anomalies when they preach to the world about the importance of law and order. Used initially to house Cuban and Haitian refugees, from 2002 after the US invasion of Afghanistan it was used to detain “Islamic terrorists”. Did the then US Defence Secretary Donald Rumsfeld follow the administrative detention system used by Israel? It’s hard to say. Nevertheless, the US certainly perfected the cruel Israeli model.

Ironically, Israel defends its excessive use administrative detention by claiming that Guantanamo Bay is the model. Israel’s former director of military prosecutions Maurice Hirsch defended the measure in a recent BBC News interview: “We [Israelis] see administrative detention being used by the Americans in Guantanamo, so we know that this measure is internationally recognised and accepted.” He went on to add, “Why should it be only Israel that is prevented from using it?”

It is astonishing that what the US did (and continues to do) in Guantanamo Bay is a model for “justice” that can be and is followed by any other country without international outrage.

All Palestinians, particularly women and children, held under administrative detention orders should be considered either as prisoners of war or victims of state kidnapping. If the Israelis taken by Hamas on 7 October are referred to as hostages, then the same should be said of all Palestinians incarcerated under Israel’s cruel administrative detention system.

Protests and objections from the European Union, international rights organisations and even Israeli rights organisations are brushed aside by the apartheid state, which continues to use and abuse the system. Human Right Watch describes it as “abusive” while Amnesty International believes the system never leads to a “fair trial”. Nearly 5,000 Palestinians from the West Bank have been detained since the 7 October attack. Many of them are children and almost all are being held under administrative detention. Although Israel and its allies reject the use of the term “apartheid” to describe the occupation state, the fact that it has a detention system used exclusively for Palestinians — Jews arrested in the occupied Palestinian territories face civil courts, unlike the Palestinians — confirms the apartheid nature of the occupation and the state behind it.