Monday - 30 March 2015 
October 22, 2004

Children Behind Bars: Issue 26

Administrative Detention

Administrative detention is detention without charges or trial, handed down on the basis of secret information which neither the detainee nor his legal representative is allowed to see. Administrative detention orders are valid for a period of between one month to a year, but in general orders between 3-6 months in length are passed down; however they are renewable indefinitely under military regulations. In practice therefore, Palestinians can be detained for months, if not years, without knowing for how much longer they will be held nor the reasons for their detention.

Administrative detention orders are issued to some Palestinians as soon as they have been arrested; others are subjected to prolonged interrogation before being served with the order, for which no criminal charges are filed. Some Palestinians have had criminal files opened against them as soon as or shortly after their administrative detention order expires, while others are issued administrative detention orders during or soon after serving out a prison sentence.

Since the start of the second intifada four years ago, the number of Palestinians held in administrative detention has risen dramatically. In 2000, there was an average of 20 Palestinians held in administrative detention at any one time. Today there are over 1,000 Palestinian administrative detainees, including more than 20 children.

Convention on the Rights of the Child, 20 November 1989

Article 37
States Parties shall ensure that:
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Article 40:
2(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty in accordance with the law
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her legal parents or legal guardians, and to have legal or other appropriate assistance in preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to the law, in the presence of legal or other appropriate assistance, and unless it is considered not to be in the lest interests of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or confess to guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher, competent independent and impartial authority or judicial body according to the law;
(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings.

Geneva Convention relative to the Protection of Civilian Persons in Time of War
Adopted on 12 August 1949

Article 66
In case of a breach of the penal provisions promulgated by it by virtue of the second paragraph of Article 64, the Occupying Power may hand over the accused to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied country. Courts of appeal shall preferably sit in the occupied country.

Article 76
Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. They shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country.

International Law
While administrative detention is permitted under international law, severe restrictions are placed on its application to prevent abuse of the process. These include a prohibition on the collective application of administrative detention; insistence that it is to be used only as a measure of near-last resort to prevent acts of violence; and that the basic rights of detainees, including access to legal representation and the opportunity to contest the allegations brought against them must be observed.

Israeli Law
Administrative detention is also lawful under Israeli domestic law and the law that Israel applies to the Occupied Palestinian Territories. The vast majority of administrative detention orders are carried out in the West Bank under Military Order 1229 of 1988, and in Gaza under Military Order 941 of 1988. According to the Israeli government: “Administrative detention is resorted to only in cases where there is corroborating evidence that an individual is engaged in illegal acts which involve danger to state security and to the lives of civilians. It is only used in circumstances where the usual judicial procedures are inadequate because of a danger to sources of information or a need to safeguard classified information which cannot be revealed in open court”. However, in reality the confidential nature of the grounds for detention mean that administrative detention provides a means for the Israeli authorities to detain prisoners of conscience and hold individuals that Israel cannot bring to trial due to lack of evidence.

The Process
Information leading to the serving of an administrative detention order is collected by members of Israel’s Security Agency or Shabak. The details are passed to the chief Israeli military commander of the area who either issues the order himself, or authorises one of his area commanders to do so. The orders are thus not issued in the presence of either the detainee or his legal representative.

Within eight days of issuing an administrative detention order, the detainee must be sent to a special(administrative detention) military court in either Ofer military camp near Ramallah, near the military prison camps of Ketziot or Megiddo, or in Salem, near Jenin. Here the legality of the reasons behind the order will be reviewed. The court is presided over by a legally-trained army officer in the role of the judge, also present is the prosecutor who is acting on behalf of Shabak, the detainees, his/her lawyer and a translator and court recorder.

According to the accounts of lawyers seeking to defend Palestinians in such courts, it is impossible to ascertain the precise reasons for the detainee’s arrest and detention as such details are said to be confidential. Each time the defence asks what the prisoner has done to warrant administrative detention, they are told the answer is in the secret file. In more serious cases, the defence lawyer will ask for Shabak to be brought to the court. During questioning, the Shabak agents usually repeat the mantra that the answers are in the secret file. However even when the intelligence agents do respond to cross examination, lawyers defending Palestinians say that neither the Shabak members nor the judge show signs of concern when the answers are proved to be incorrect.

Once the defence lawyer has completed his questions, the judge will ask for the prosecution’s 'evidence', at which point the prosecution hands over the secret file. The detainee and the two lawyers are temporarily dismissed while the judge considers the confidential information. Although the secret file is invariably a thick wad of papers, the three are called back to the court within minutes, with the judge claiming to have digested all the information contained in the file in the intervening period.

After purportedly reviewing the confidential information, the judge announces his or her decision. Although the hearing is convened to rule on the legitimacy of the administrative detention order, it is extremely rare for the judge to conclude that the order is illegal. In the vast majority of cases the judge will rule that the arrest and administrative detention is legal. In fewer cases, he or she may insist that the period the detainee spent in custody before the order was issued should be taken into account, thereby reducing the time spent in administrative detention.

Administrative detainees have the right to appeal the detention order before a military appeal judge where a process similar to that at the initial hearing takes place. The prosecution again insists the answers to the defence lawyer’s questions are only available in the secret file and the judge again reads this file in a matter of minutes before usually concurring with the original court decision.

“The only impact that lawyers for the defendant are able to make at either the initial hearing or the appeal is to limit the opportunity for the detention order to be renewed,” says one Palestinian lawyer. “If we are lucky, and is the judge is reasonable, then we may be able to persuade him or her to sign the secret file so that the administrative detention cannot be renewed without new evidence.”

It is this ability to renew the administrative detention orders indefinitely which is perhaps the cruellest aspect of the system. Detainees are often only informed that their detention has been renewed days before or even on the actual day that they are due to be released. The psychological trauma of having ones hopes and the hopes of family and relatives shattered time and again is tantamount to a form of torture, and the ensuing despair makes the next period in detention even harder to bear than the last.

Case study: 20 months in detention for what?

M is from Deheisha refugee camp near Bethlehem. He was born on 5 January 1987 and has four brothers and three sisters.

On 22 November 2002, during the holy month of Ramadan, M was arrested by Israeli forces. Soldiers surrounded his family’s house at 3am and forced all the occupants to stand outside in the cold and dark for three hours while the building was searched. M and his older brother were both arrested. They were subjected to an impromptu investigation outside, then handcuffed and blindfolded and made to lie on the ground while their captors posed for photographs by their prone bodies. The soldiers led M and his brother down to the entrance of the camp where they joined other Palestinian men who had been rounded up and arrested. Trucks came and the detainees were taken Gush Etzion. Here M was forced to sit outside in the rain until 5pm while Israeli soldiers would arbitrarily hit him as they passed by.

Some 14 hours after he was arrested, M was placed inside a windowless cell about the size of a mattress. He was to spend the next 45 days in this hole, from which he was allowed out three times a day to go to the toilet and only once a day for a maximum of 10 minutes in the open air.

A month and a half after his arrest M turned 16 years old. Under Israeli military order 132, and in direct contravention of international legal instruments including the UN Convention on the Rights of the Child, Palestinians aged 16 and over in the West Bank and Gaza are treated as adults by the Israeli authorities. To “celebrate” his birthday, the guards at Etzion took M for interrogation. M was severely beaten by his captors; his head was banged against the wall and his ankles were burned with cigarettes.

After five days of interrogation and torture, M was transferred to the military prison camp at Ofer, near Ramallah. M had been here only a few days when he was told that he’d been given a six-month administrative detention order. A week later the judge at the administrative detention court in Ofer confirmed the order.

M spent only a couple of weeks at Ofer. Soon after his administrative detention order was confirmed he was sent to the notorious Ketziot military prison camp deep in the Negev desert. Shortly after arriving here he went to court to appeal against his administrative detention. His appeal was turned down, and served out the rest of his detention period in Ketziot.

Five days before he was due to be released, M was transferred back to Ofer. Once again he was taken for investigation, and once again his Shabak interrogators beat and cursed at him. They tried to force M to confess to throwing Molotov cocktails and stones at Israeli soldiers, but M denied the charges. On the day he was due to go home, M was sent to court another time, only for the hearing to be postponed. When the trial was reconvened three days later, the judge revealed that there were two charges against M – one secret and one open. However, it transpired that the prosecution had not prepared the charges, so the trial was once more postponed for another week.

When it became evident that Shabak could not gather enough evidence to file charges against him, M was given another six-month administrative detention order. In December 2003, as soon as the second six-month sentence was over, M’s administrative detention was renewed for another half year. Upon appeal, the judge in the administrative appeal court reduced the detention period to three months. However, before M completed this sentence he was sent back to the Negev, and his administrative detention was renewed for a further three months – returning him to the same sentence that that judge had originally passed down before it has been commuted.

In June 2004, after finishing these three months, M’s administrative detention was renewed for a fifth time. Once more he appealed against the decision. In the court, he asked the judge directly – do you really believe that 15-year old children are dangerous? “Yes,” replied the judge. “Explain to me how you are not dangerous and I’ll free you.”

“In our family, no one has been arrested or killed by the Israelis,” M replied. “Why would I want to make trouble?” The judge gave M a three months administrative detention order, for which he immediately cancelled two months. More importantly, the judge ordered that M’s administrative detention order could not be renewed once M had completed the month.

In the evening of 17 July 2004, the order came through for M to be released the following day. M was planning to slip back home unannounced, but the detainees he shared the tent with called his family so when M’s taxi drew up outside Deheisha the following day, half the camp had turned out to welcome him back. “The reunion with my family was a wonderful moment,” M recalls. “There were tears of joy, tears of relief, so much happiness and so much noise. But for me, the true highlight of the day came earlier. It was when I heard the magic words of the soldiers at the checkpoint: ‘Yallah, you’re free to go’”.

Palestinian children detained by Israel (October 2004)

Boys: Section 774
Section 1248
Ofek Hasharon
Prison Hospital1
Ofer Military Camp
Ketziot Military Camp
(including boys in administrative detention)
Interrogation and Detention Centres
Russian Compound
Etzion (Detention and Interrogation Centre)
Benjamin (Inside Ofer Prison)
Total Children Detainees 338

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