Administrative detention refers to imprisonment without charge or trial, based on secret files and evidence inaccessible to the detainee or their lawyer. According to Israeli military orders, administrative detention orders can be renewed indefinitely, with each order lasting up to six months, renewable upon expiration.
Administrative detention is politically motivated and closely linked to the situation in the occupied Palestinian territories and Palestinian protests against Israel's continued occupation of land captured in 1967. It serves as a punitive and suppressive measure officially adopted by the Israeli government as collective punishment against Palestinians. However, administrative detention, as practiced by Israeli authorities, is prohibited under international law.
Since the occupation began, Israel has issued administrative detention orders against various segments of Palestinian society, including human rights activists, workers, university students, lawyers, parents of detainees, and traders. Currently, 430 Palestinians, including three women, are held in administrative detention. Male administrative detainees are mainly held in Ofer, Negev, and Megiddo prisons, while women are detained in Damon Prison, in violation of the Fourth Geneva Convention, which requires prisons to be located within the occupied territory.
The use of administrative detention increases during Palestinian uprisings and mass protests. Since 1967, Israel has issued over 50,000 administrative detention orders, including 24,000 between 2000 and 2014. During the First Intifada in 1989, there were over 1,700 administrative detainees, and during the Second Intifada in 2003, the number reached 1,140 detainees. From the 2015 Uprising through the end of 2018, 5,068 administrative detention orders were issued, including new orders and renewals.
Administrative detention orders are issued at the discretion of the Israeli military commander for residents of the West Bank and Gaza or by the Minister of Security for Jerusalem residents. The legal basis for administrative detention stems from British Mandate Emergency Regulations of 1945, incorporated into Israeli military law. Most detentions rely on classified evidence, which the detainee cannot access, under the claim of protecting intelligence sources.
This secrecy undermines the detainee's right to a fair trial and violates Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees freedom from arbitrary arrest and the right to know the reasons for detention.
Administrative detention cases are reviewed by Israeli military courts that fail to meet the standards of fair trial practices. Judges often rely on summaries of classified evidence rather than the complete material and rarely question intelligence officers on the validity of the information.
Detention hearings are classified, denying detainees the right to a public trial as mandated by Article 14 of the ICCPR. Detainees face indefinite detention without access to the charges against them or the ability to mount a defense.
Administrative detainees are often subjected to harsh living conditions that violate the Fourth Geneva Convention and international human rights standards. Detainees are denied access to basic necessities, family visits, and humane treatment.
The practice constitutes a form of psychological torture and may amount to crimes against humanity under the Rome Statute. Detainees are often unaware of the duration of their detention, as orders are renewed arbitrarily, sometimes on the day of their scheduled release.
Mohammed Zaghari: Detained in June 2017 under an administrative detention order, his detention was repeatedly renewed for nearly two years. Just before his scheduled release, he was charged based on evidence collected during his detention, illustrating how administrative detention is used as a substitute for formal charges.
Mustafa Zaghari: After serving a seven-month sentence for alleged stone-throwing, he was placed under administrative detention for an additional six months, highlighting the punitive use of detention even after serving judicial sentences.
Administrative detention, as practiced by Israel, is arbitrary and contravenes international law, including the Fourth Geneva Convention and ICCPR. It serves as a tool of oppression, undermining Palestinians' rights to fair treatment and due process. The Israeli judicial system plays a complicit role, facilitating security policies under the guise of legality. This practice demands accountability, international intervention, and compensation for victims of such unlawful detention practices.
Below is a legal analysis of the administrative detention practices implemented by the Israeli occupation against the Palestinian people.
Since the 1967 occupation, Israel has relied on Emergency Regulations to implement administrative detention. In 1970, Article 111 of the Emergency Regulations was converted into Article 87 of Military Order 378. After amendments, Article 285 of Military Order 1651 now provides the legal framework for administrative detention.
Israel claims that Article 78 of the Fourth Geneva Convention (1949), which addresses the protection of civilians during war, allows it to detain individuals in occupied territories under administrative detention. Article 78 states:
"If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or internment."
However, Israel’s implementation of administrative detention diverges fundamentally from the provisions of the Geneva Convention.
The Geneva Convention prescribes administrative detention as an exceptional measure in emergencies and as a last resort. Where feasible, house arrest should be prioritized as it is less damaging. Contrary to this, administrative detention has become a routine practice for the Israeli occupation, rather than the exception. Currently, over 414 administrative detainees are held in Israeli prisons, many for periods ranging between two to three years. This raises questions about the alleged security threat posed by these individuals over such extended periods. Some detainees have even been subjected to administrative detention after completing sentences for criminal charges, under claims they still pose a threat.
During the First Intifada, administrative detention peaked, with thousands detained at one time (e.g., 8,000 detainees). The practice continued post-Oslo Accords, with individuals from Area A, under Palestinian Authority control, detained for over two years. Such extensive use of administrative detention contradicts the notion of an emergency or unavoidable necessity.
In most cases, military commanders base administrative detention orders on classified evidence, under Amendment 2 to the Administrative Detention Order (Instructions for Special Cases, 1988). These materials are not disclosed to detainees or their lawyers, allegedly to protect intelligence sources. Israeli courts, including the Supreme Court, have upheld this practice, compromising the detainees' rights to a fair trial as guaranteed under international law.
Notably, the Fourth Geneva Convention does not allow the use of secret evidence to justify detention. Legal commentary on the Geneva Convention (e.g., Jean Pictet) emphasizes that administrative detention should apply only when prosecution is impossible because the individual has not committed a crime, but is suspected of potential future harm based on unproven statements or activities.
For Palestinian residents of Jerusalem, administrative detention orders may be issued by the Israeli Minister of Security or the Military Commander for activities alleged to have occurred in occupied territories. Under Israel’s Emergency Powers (Detention) Law of 1979, detainees must appear before a district court judge within 48 hours, who can confirm, reduce, or revoke the detention order. The maximum duration is six months, renewable. This contrasts with the indefinite renewals under military orders for West Bank and Gaza residents.
Article 79 of the Fourth Geneva Convention requires review of detention decisions "at the earliest opportunity" by a court or an administrative board. Such reviews should occur at least twice annually to ensure the detainee’s rights are protected. However, Israel’s practice involves reviews by military judges, often based on summaries of classified evidence rather than full materials, with limited opportunities to challenge their validity.
Detainees are presented before a judge within eight days of detention (compared to 48 hours under Israeli law). These hearings are not public, involving only the detainee, their lawyer, and security personnel, violating the detainee's right to a public trial under Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR).
Administrative detainees face harsh conditions in prisons like Negev, Ofer, and Megiddo, violating provisions under the Fourth Geneva Convention. Detention practices include:
These practices constitute psychological torture and may qualify as crimes against humanity or war crimes under the Rome Statute.
Administrative detention as practiced by Israel significantly deviates from international laws and standards, including the Fourth Geneva Convention and ICCPR. It has become a systematic tool of oppression rather than an exceptional security measure, violating detainees’ rights to fair trials, humane treatment, and freedom from arbitrary detention. These practices demand international accountability and justice for affected Palestinians.