The legal basis for administrative detention in Israeli and the Occupied Territories

The legal basis for administrative detention in Israeli and the Occupied Territories

1 Jan 2011
22 Jul 2012

Israeli law

Israeli statutory law and Israeli military legislation applying in the West Bank explicitly allow administrative detention and regulate its use.

The Administrative Detention Order (in the the West Bank)

Administrative detention in the West Bank, not including East Jerusalem, is currently carried out pursuant to the Order regarding Security Provisions [Consolidated Version] (Judea and Samaria) (No. 1651), 5770-2009. The Order empowers military commanders in the West Bank to detain a person for a maximum period of six months, when they have reasonable grounds to believe that "a certain person must be held in detention for reasons to do with regional security or public security". The military commanders may extend the detention order for an additional period of up to six months. The Order does not specify a maximum cumulative period for administratively detaining a person, enabling the detention to be extended repeatedly.

The Order establishes an apparatus for judicial review. Within eight days from the day the person is arrested, or from the day the detention order is extended, the detainee must be brought before a military judge holding the rank of at least major to determine if the detention is justified. The judge may approve the order, cancel it, or shorten the period of detention specified in it. The judge's decision may be appealed, to the Military Court of Appeals, by the detainee and the military commander.

Hearings in both the lower and the appellate court are held in camera. In these hearings, the judge is not bound by the regular rules of evidence; in particular, a judge may “also admit evidence not in the presence of the detainee or his representative, or without revealing it to them” if he is convinced that disclosure of the evidence is liable to “harm the security of the region or public security.”

The detainee and the military prosecution may appeal the decision of the Military Court of Appeals to the High Court of Justice. Criticism of administrative detention under the Administrative Detention Order

The Emergency Powers (Detentions) Law

The Emergency Powers (Detentions) Law, 1979, is part of Israeli statutory law. It was intended to replace the provisions regarding administrative detention of the Defense (Emergency) Regulations that were enacted during the British Mandate. The statute can take force only after the Knesset declares a state of emergency; however, Israel has been in a declared state of emergency since its founding.

The statute empowers the minister of defense to administratively detain a person for a period that does not exceed six months. Here, too, the detention may be extended indefinitely, six months at a time. However, this statute grants the detainee protections that are not available to him under the Administrative Detention Order, primarily regarding the maximum time in which the detainee must be brought before a judge, and the frequency of judicial review.

The statute enables detention of residents of Israel, residents of territory occupied by Israel, and residents of other countries. Over the years, Israel has used the statute to detain Israelis, citizens of Arab states - primarily Lebanese citizens - and in certain cases, also residents of the West Bank and the Gaza Strip.

The Internment of Unlawful Combatants Law

The Internment of Unlawful Combatants Law, 2002 (the Law), regulates internment of civilians who carry out hostilities against Israel and are not entitled to prisoner-of-war status under international humanitarian law. The Law defines an unlawful combatant as a person who has taken part in hostilities against the State of Israel, directly or indirectly, or who is a member of a force carrying out hostilities against Israel.

The Law enables the administrative detention of these persons for an unlimited period of time if the chief of staff, or an officer holding the rank of major-general delegated by him, believes that their release will harm state security. The detention ends when the chief of staff believes that the internee can no longer be defined an unlawful combatant or that his release will not harm state security.
The Law stipulates that judicial review is to be held before a District Court judge once every six months. In these hearings, the state may rely on two legal presumptions that are specified in the Law:

  1. Release of the internee will harm state security.
  2. Determination of the minister of defense that the force to which the detainee belongs is carrying out hostilities against Israel.

The Law is currently used to detain without trial Palestinians from the Gaza Strip. In the past, Israel used the Law to hold Lebanese citizens. Between July 2008 and July 2010 the law allowed, via a "temporary order" approved by the Knesset, sweeping and swift detention without trial of large numbers of persons, for a prolonged period, if the government declares the existence of "wide-scale hostilities." Criticism of the Internment of Unlawful Combatants Law.