Israel decided to transfer 18 administrative detainees from the West Bank to the Gaza Strip as a deterrent measure last week, following the bombing of Maxim restaurant in Haifa, which killed 21 people. The detainees were apprehended for two days before relocation to Gaza. Sources from Israel’s defense establishment as well as Palestinian officials condemned this decision last Tuesday.
The Palestinian ministry for prisoner affairs said eight of the detainees in question are affiliated to Hamas, five to Islamic Jihad, one to Fatah and one to the Popular Front for the Liberation of Palestine. The party-affiliation of the others was not specified.
Colonel Daniel Reisner, head of the international law department of the Military Advocate-General, said this measure is not considered expulsion, a definition which could be problematic regarding international law, but rather “limiting their place of residence,” according to a quote in the Israeli daily Haaretz. The premise of the latter definition is that the West Bank and Gaza Strip are both part of the Palestinian Authority, so it cannot be defined as expulsion.
Khalida Jarar, director of Addameer, a non-governmental Palestinian association that focuses on prisoners’ human rights, said the Israeli decision is dictated by political motives, rather than security considerations as is contended by Israel. “The real goal behind this is to apply collective punishment, revenge, and place fear in the other detainees,” Jarar said.
The Palestinian Center for Human Rights deemed the decision illegal since they said it is a violation of Article 147 of the Fourth Geneva Convention which prohibits “unlawful deportation or transfer or unlawful confinement of a protected person…or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention.”
Administrative detention, according to the Amnesty International human rights organization, is a procedure under which detainees are held without charge or trial. The administrative detention order, according to Amnesty’s definition, is issued by a military commander for a specific term, usually up to six months. The detainees are allowed a lawyer, but often neither they nor their lawyers are given access to all the evidence against them. The court decides how much evidence to disclose for security reasons, and the administrative detention order can be renewed indefinitely.
No’am Hoffstater, spokesman of B’Tselem, an organization that deals with human rights in the Palestinian territories, told The Media Line [TML] that administrative detention is indeed permissible according to international law, but must be applied only under extreme circumstances, by a strictly selective method. It is intended to be a means for the security mechanism to detain people who unquestionably pose a threat to civil security, but for various reasons cannot be tried or convicted.
“Israel is abusing its application [of administrative detention] and it’s very non-selective,” said Hoffstater. “They are using a loophole in the law to carry out an undemocratic act.” He added that in many cases administrative detainees are refused their right to see a lawyer and there is no evidence to press charges against them.
The Israel Defense Forces [IDF] is holding approximately 515 administrative detainees, according to B’Tselem.
Nitzana Darshan-Leitner, a lawyer and director of Shurat Hadin, an organization focusing on human rights of Israelis and Jews, told TML that in light of Israel’s current situation, when terror hits civilians daily, carried out by people who are known for their terror activity, but there is not sufficient evidence to press charges against them, there is no choice but to put them in administrative detention.
Regarding the relocation of the detainees to the Gaza Strip, this is permitted under Israeli law with restrictions. As stated by a verdict of Israel’s High Court of Justice, deterrence cannot be a factor in the decision to relocate a person, and it can only be applied to a person whose relocation will clearly prevent imminent danger to the security of the state, according to Hoffstater. And he says this is clearly not the case with the current 18 detainees.
“People from the security system are saying these are people with a history of terror but no ‘blood on their hands’,” said Hoffstater. “They were not involved in direct targeting of Israelis and their expulsion is intended to prevent their reengagement in terror…there is no real evidence that they pose a threat to state security which is why their expulsion is unfitting,” said Hoffstater.
“Deterrence is indeed a factor accounted for in the decision to limit the place of residence [of these detainees]” the IDF told TML. “In addition, and in accord with the verdict of the High Court of Justice, this consideration is paired with the chief consideration which is the preventative factor…the limitation orders were issued in order to prevent the danger posed to security by terror activists,” said the IDF.
Darshan-Leitner also opposes the transfer, but for different reasons. She believes that transferring these people to Gaza will not prevent their activity but rather give them the freedom to continue their acts of terror and endanger people’s lives. ”People care for [the prisoners’] human rights but if their rights are not violated, it will backfire in the form of terror against Israelis and people around the world.”
The IDF, said Darshan-Leitner, is releasing these detainees because of pressure from Palestinian and other human rights organizations. Furthermore, their detention is somewhat of a burden on the army since their imprisonment requires a bi-monthly extension by the Israeli military court.
Administrative detention is not an uncommon phenomenon in this day and age. An American-run detention camp in Cuba’s Guantanamo Bay currently holds hundreds of prisoners, held on suspicion of having links to Al-Qa’ida or Afghanistan’s ousted Taliban regime. They have not been charged or allowed access to lawyers. Many have been detained for over a year and a half. “This is not prevention of terror,” said Darshan-Leitner, “this is simply for the sake of punishment and deterrence.” The U.S. has no evidence of their involvement in terror to press charges against them, but the court permits this situation to continue for the sake of protecting its citizens, she added.
The IDF claims the detainees in question were involved in terror and that “their relocation is primarily a measure to thwart terror, intended to prevent their reengagement in the circle of terror.” The IDF added that this measure is taken against people who cannot be tried for their actions, because the army does not wish to reveal its intelligence sources.
“The IDF is continually striving, by means of all the laws it can apply, to protect the safety and security of the citizens of Israel,” the army said.