Administrative Detention in Judea and Samaria - Q & A

Administrative detention orders are used as a preventative measure against grave security threats in the West Bank

Date: 10/05/2012, 1:58 PM     Author: IDF Military Advocat Generals Corps Website

At a Glance:

• Administrative detention (also known as "internment") is a lawful security measure allowing the deprivation of a person's liberty for a limited time. Administrative detention orders are used as a preventative measure against persons posing grave threats to the security of the West Bank or its population, such as persons directly involved in terrorism, whose detention is considered to be absolutely necessary for imperative reasons of security.

• International law authorizes the use of administrative detention in territories under belligerent occupation.

• In accordance with the Order Concerning Security Provisions applicable in the West Bank,[1] a Military Commander (namely, a high-ranking IDF officer with specific authority) may order the administrative detention of a person if there are reasonable grounds to consider that taking such a measure is necessary for imperative reasons of security.

• Such an order must rely on credible, current and reliable information, as detailed as possible, showing that the person poses a specific and concrete threat of a substantial nature to the security of the West Bank or its population.

• Administrative detention is used solely as a preventive measure and only as a last resort, and cannot be employed where criminal prosecution is possible or less restrictive administrative procedures would adequately contend with the security risk posed by the individual.

• The procedure for issuing orders for administrative detention includes several safeguards against both abuse and arbitrariness:

      o First, prior to the issue of a detention order, an independent military prosecutor provides a legal review through conducting an assessment of the order that is legally binding on the Military Commander.

      o Second, once a detention order has been issued, it is subject to a multi-layered system of judicial review by the Military Courts in the West Bank. Detainees wishing to challenge detention orders may also file a petition with Israel's Supreme Court sitting as the High Court of Justice. Detainees have the right to legal counsel of their choice throughout this process.

• Administrative detention orders mostly rely on sensitive and classified information gained from intelligence sources. Due to its confidential nature, this information cannot be disclosed in full to the detainee or their attorney so as not to endanger the safety of the source or frustrate future intelligence gathering abilities. In these cases, detainees are provided with the general reasons for their detention.

• Administrative detention may be ordered for a period of no more than six months. Following this period, a renewed detention order may only be issued on the basis of an updated assessment of the threat posed by the person, which establishes that continued detention is required to confront the threat posed by that person. Any renewed detention order is subject to the same avenues of review and appeal as an initial order.
 
Questions and Answers:

What is administrative detention?

Administrative detention is a security measure applied in the West Bank, whereby persons may be deprived of their liberty for imperative reasons of security by virtue of an executive decision. These orders are subject to legal and judicial review, and can only be utilized in situations where criminal procedures are not possible and where alternative administrative procedures would not suffice to negate the threat posed by the person.

Administrative detention orders are limited in time, and may only be issued by certain Military Commanders with the specific authority to do so. Detention orders are made according to an elaborate procedure which includes a wide range of safeguards, including the right to appeal and periodical review.

Does administrative detention, as practiced by the military government in the West Bank, comply with applicable international law?

It is widely acknowledged under the Law of Belligerent Occupation that the use of administrative detention, also referred to as "internment", is a legitimate security measure in situations of occupation. The use of this measure is expressly regulated in Articles 27, 42 and 78 of the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Times of War. The latter Article stipulates that;
"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 residences or to internment.

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power."

As the following Questions and Answers will show, the manner in which administrative detention is applied in the West Bank not only conforms with the procedures provided in Article 78 above, but actually exceeds these requirements.

Under what circumstances are administrative detention orders issued?

Administrative detention orders are used as a preventative measure against persons posing grave threats to the security of the West Bank or its population, whose detention is considered to be absolutely necessary for imperative reasons of security. For example, detention orders are issued against those planning suicide or other terrorist attacks, or orchestrating, facilitating or otherwise actively assisting in the commission of such acts.

With respect to any such person, a decision of an authorized Military Commander to issue an administrative detention order must rely on current and reliable information showing that a specific and concrete security threat of the nature and magnitude described above indeed exists. The information relied upon must be as detailed as possible.

According to Israel's Supreme Court jurisprudence on administrative detention, all available alternative avenues must be thoroughly exhausted prior to employing administrative detention. Therefore, prior to issuing an administrative detention order, the Military Commander must be satisfied that all other means of lesser severity at his disposal would be insufficient to negate the security risk posed by the person in question. Alternative means include less restrictive administrative measures such as restrictions on movement (in consonance with the Military Commander's obligation to act pursuant to the principle of proportionality as provided by Israeli Administrative Law, which is applicable to IDF activity in the West Bank). Specifically, the Military Commander must also be convinced that criminal prosecution is not a feasible alternative (for more information on this issue, see below).

Why is administrative detention used instead of regular criminal proceedings?

Criminal proceedings are instituted as a response to an alleged offence, for reasons such as retribution and deterrence. In contrast, administrative detention is a preventative measure, solely designed to frustrate the commission of future harmful acts.
Accordingly, in many cases it is infeasible to bring lawful criminal charges against persons considered for administrative detention for the following reasons:

• Firstly, at the stage that a person is considered for administrative detention, a criminal offence has not yet necessarily been committed – for instance, if a person is caught in the early stages of planning a terrorist act. Needless to say that in such cases it would often be unacceptable to refrain from detaining a person up until that point in time when his acts cross the "threshold of criminality", which might be too late.

• Secondly, even if a criminal offense has (allegedly) already been committed, it might be impossible to prove this as a matter of law and in open court. This is because the information regarding activities which justify the use of administrative detention is provided by intelligence means and/or sources, which cannot be exposed without being compromised. Often, this also would mean that certain information cannot be revealed to the detainee or to his attorneys, if it is assessed that doing so would allow the manner in which this information was obtained to be determined, thus hampering future intelligence gathering activities or even endangering the safety of the source (for more information regarding evidence used in administrative detention hearings, see below).

Who can make an order for administrative detention?

The principle authority to make an administrative detention order is vested with the General Officer Commanding (GOC) Central Command, acting as Commander of IDF forces in the Area of Judea and Samaria (also known as the West Bank). In addition, this authority may be exercised by a select few high-ranking IDF officers individually appointed as "Military Commanders" by the Commander of IDF forces in the West Bank and delegated with the requisite authority. In most cases these high-ranking officers are the commanders of the regional brigades operating in the West Bank, typically holding the rank of Colonel.

Is there a time limit to administrative detention?

Orders for administrative detention of an individual may be issued for a time period not exceeding six months.  In order to issue an additional detention order at the end of the detention period, the Military Commander must conduct a renewed assessment, finding that the threat posed by the detainee still exists. Renewed detention orders are also subject to the full range of legal and judicial reviews as granted to initial detention orders.

There is no formal bar on the number of times an administrative detention order may be renewed and thus on the total length of time for which a person may be held in administrative detention (consecutively or cumulatively). However, extending a detention order beyond the term of the initial detention order is by no means "automatic". Rather, each renewal order places an exceedingly onerous burden on the shoulders of the Military Commander, constantly growing with the passage of time. Prolonged administrative detention is therefore highly improbable and in practice rare, and is contemplated only in very unique circumstances.

What legal and judicial mechanisms are in place to ensure that individuals are not arbitrarily detained?

Prior to the issuance of a detention order, a military prosecutor provides legal review by assessing the information that the order is based upon. The prosecutor's assessment is legally binding on the Military Commander. These military prosecutors are subject to a separate chain of command and organizational structure than that of the Military Commander, which allows for professional independence when conducting these assessments. The military prosecutors apply a cautious and level-headed approach towards the use of administrative detention, and in conducting their legal review have full access to all the available information on which the order is based.

Over and above the provision of legal review operates a multi-layered apparatus of judicial review, beginning with the Military Courts in the West Bank. These judicial institutions are impartial and functionally independent from the IDF chain of command, meaning that they exercise unfettered professional discretion. Military Court judgments are binding on the Military Commander, and cannot be revoked, circumvented or superseded by any authority, including that of the Commander of IDF forces in the West Bank, with the exception of Israel's Supreme Court sitting as the High Court of Justice.

At each stage of the judicial review process (detailed below), the Military Courts seek to determine whether the decision to administratively detain an individual is reasonable, first and foremost on its merits. This requires the Military Courts to inquire into the substantive justifications for issuing the specific detention order – namely, the security threat posed by the detainee and the lack of available alternatives to detention. In order to do so, the Military Courts will examine all relevant and available information. As explained below, part of the administrative detention hearing is conducted ex parte and in camera (that is, without the presence of the detainee or their attorney). This enables the Military Courts not only to examine written materials but also to present in-depth follow-up questions to the relevant security personnel involved, without being hampered by considerations of confidentiality and security.

Furthermore, in adjudicating administrative detention cases, the Military Courts essentially conduct a delicate balancing act between, on the one hand, the public interest the Military Commander is charged with protecting, and on the other hand, the individual rights impinged upon, including the right to personal liberty and freedom from its arbitrary deprivation.
This is achieved through the following process: upon the execution of a detention order, the detainee must be brought before a Military District Court judge (holding at the least a rank of Major), who may either confirm the order or quash it in its entirety – or may also reduce the stipulated period of detention.

The Military Courts are known for their active intervention in these cases, and often shorten the detention period so as to hasten the time in which the Military Commander will be required to appear before the Military Courts following a renewed detention order. Hearings in the Military Courts are conducted in Hebrew, with simultaneous translation into Arabic.

The detainee may then appeal the Military Court's decision to confirm the order, including where the detention period has been reduced, before the Military Court of Appeals. This court consists of independent and impartial judges holding at least the rank of Lieutenant Colonel and with at least seven years legal experience.

Ultimately, the detainee may challenge the judgment of the Military Court of Appeals by petitioning Israel's Supreme Court sitting as the High Court of Justice. In this regard, Israel's Supreme Court sitting as the High Court of Justice has heard numerous such petitions, and many of the decisions rendered in this respect comprise the bedrock for judicial review of administrative detention.

Petitioning Israel's Supreme Court sitting as the High Court of Justice provides an additional layer of judicial review, external to the military framework and of the highest degree. It also provides an additional opportunity for external legal review. This is due to the fact that those appearing on behalf of the Military Commander before Israel's Supreme Court are not military prosecutors but rather attorneys in the State Attorney's Administrative and Constitutional Law Division of Israel's Ministry of Justice, who provide their own expert assessment of the detention order. If, following this review, the State Attorneys decide not to take the matter to trial, the detention order is effectively rescinded.

What substantive and procedural guarantees, if any, do these proceedings offer in order to safeguard the rights of the detainee?

Like all other judicial proceedings before the Military Courts in the West Bank, those pertaining to administrative detention are of an adversarial nature. This means that detainees have the right to legal counsel of their choice throughout the entire process.
This also means that, to the extent possible, detainees have the right to be present in the hearing (although they may forgo this right). This is important not only in order to allow detainees the right to be heard on the matter at hand, but also to provide them with the opportunity to make grievances regarding the conditions of their detention and the treatment they receive. At the same time, the Military Court gains a first-hand impression of the detainees' physical and mental state.

Proceedings may only be held ex parte during parts of the proceedings where information of a confidential nature, which is relied upon when issuing the detention order, is presented to, discussed and reviewed by the Military Court. As discussed above, this information is usually of a highly sensitive intelligence nature, obtained from confidential sources or means. As such, it cannot be compromised in order to protect the safety of intelligence sources and allow intelligence gathering to continue unhampered. In these cases, the general reason for detention will be provided to the detainees and their attorneys.

http://www.law.idf.il/14-en/Patzar.aspx

Last Updated: 6 May, 2012

[1] The Order Concerning Security Provisions [Consolidated Version] (Judea and Samaria) (No. 1651), 5770-2009, Sections 284-94, which incorporated and superseded the Order Concerning Administrative Detention [Consolidated Version] (Temporary Provision) (Judea and Samaria) (No. 1591), 5767-2007. A full text of the Order Concerning Security Provisions, in both Hebrew and Arabic, as published in the official gazette of the Military Government of the West Bank (the KAMTZAM, acronym for "Collection of Proclamations, Orders and Appointments"), is also available at http://www.mag.idf.il. Please note that the online version of the order may be outdated due to subsequent amendments, which are published in the official gazette.