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Writers Articles And Opinions |
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17 February 2010 By Stephen
Lendman
B'Tselem is the Israeli
Information Center for Human Rights in the Occupied
Territories. Hamoked is the Center for the Defence of
the Individual, an Israeli human rights organization,
aiding Palestinians whose rights Israel violates. In
October 2009, they jointly published a report titled,
"Without Trial: Administrative detention of
Palestinians by Israel and the Internment of Unlawful
Combatants Law," covering Israel's policy of
imprisoning hundreds of uncharged Palestinians without
trial "by order of an administrative official," not a
judge.
By so doing, they're denied due
process, may be held indefinitely, aren't told why
they're detained, can't dispute it, cross-examine
witnesses, or present contradictory evidence to refute
them.
Three Israeli laws authorize the
practice:
-- the Order Regarding
Administrative Detention (the Administrative Detention
Order), part of military law governing the West Bank;
-- the Emergency Powers
(Detentions) Law for Israel; and
-- the Internment of Unlawful
Combatants Law (the 2002 Unlawful Combatants Law),
like a similar one in America, a dubious
Geneva-superceded status international law expert
Francis Boyle calls a:
"quasi-category universe of legal
nihilism where human beings can be disappeared,
detained incommunicado, denied access to attorneys and
regular courts, tried in kangaroo courts, executed,
tortured, assassinated and subjected to numerous other
manifestations of State Terrorism."
Administrative
Detention in International Law
Prolonged arbitrary detention is
a serious breach of international law. Article 9 of
the International Covenant on Civil and Political
Rights states:
1. "Everyone has the right to
liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one
shall be deprived of his liberty except on such
grounds and in accordance with such procedures as are
established by law.
2. Anyone who is arrested shall
be informed, at the time of arrest, of the reasons for
his arrest and shall be promptly informed of any
charges against him.
4. Anyone who is deprived of his
liberty by arrest or detention shall be entitled to
take proceedings before a court, in order that that
court may decide without delay on the lawfulness of
his detention and order his release if the detention
is not lawful."
Although infringing the law to a
degree is permitted "in time of public emergency which
threatens the life of the nation," Israel uses it
consistently, abusively, and in violation of Fourth
Geneva's Article 78 stating:
"If the Occupying Power considers
it necessary, for imperative reasons of security, to
take measures concerning protected persons, it may, at
the most, subject them to assigned residence 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 (decided on) with the
least possible delay. (If it's upheld), it shall be
subject to periodical review...."
Administrative detention should
never substitute for customary criminal proceedings
and should only be used to prevent someone from
performing a future lawless act, never to transfer
protected persons to the territory of the occupying
power.
Administrative
Detention of Palestinians
The decision is made by four
Israeli entities:
-- the Israeli Security Agency
(ISA);
-- military commander;
-- military's prosecutor's
office; and
-- military judges who adjudicate
cases.
Prior to detention, the ISA or
police conduct interrogations, lasting from a few days
to a few weeks. If no indictment is intended, the
military commander decides on whether to detain and
for how long. A judge must then approve it. Each order
allows three or six months, but can be indefinitely
renewed so can last years in Israeli Prison Service (IPS)
facilities.
Statistics
As of September 30, 2009, Israel
held 335 Palestinians in administrative detention,
including three women and one minor. One is from Gaza,
the others from the West Bank. According to IPS
figures, 22% of them had been held for less than six
months, 37% for six months to one year, 33% for one to
two years, and 8% for up to five years.
For many years, Israel has held
thousands of Palestinians administratively for periods
ranging up to years, in defiance of international laws
and norms.
The
Administrative Detention Order and the Supreme Court
Case Law
Most detainees are held pursuant
to individual administrative orders under the
Administration Detention Order for the West Bank,
under which commanders may order detentions when they
have a "reasonable basis for believing that the
security of the region or public security" is at
issue.
Within eight days from arrest, a
hearing before a military judge is required, to
approve, cancel, or shorten the ordered time period.
Either side may then appeal to the Military Court of
Appeals.
Lower and appellate hearings are
held "in camera" (in chambers) during which the judge
isn't bound by regular rules of evidence. He may
"admit evidence also not in the presence of the
detainee or his representative, or without revealing
it to them (if he feels it may) harm the security of
the region or public security." Hearsay evidence is
also allowed.
Either side may appeal to the
High Court of Justice (HCJ), though rarely are
petitions accepted. Nonetheless, the HCJ calls
detention an extreme measure infringing on detainee
rights that only should be used against someone known
to be dangerous, subject to the principle of
proportionality, and never if less harmful
alternatives will suffice.
A Semblance of
a Judicial System
Two features of administrative
detentions show they're arbitrarily and improperly
imposed. First, the wording used is "laconic, uniform,
and contains no reference to the individual attributes
of the detainee." Second, most orders are for six
months, rarely for less than three months, unrelated
to the criteria best suited for individual cases. As
such, a huge gap exists between the established rules
and their implementation as Israel uses detentions
indiscriminately, not for exceptional cases.
Yet military court spokespersons
extol what they call "the court's practice of frequent
intervention in administration detention orders (and
the alleged existence of) rigorous judicial review"
with statistical support for what's practiced.
However, the books are cooked.
The data is inaccurate and misleading as judges
routinely approve 95% of orders, rarely limiting the
power of military commanders. Further, in 2008, the
Military Court of Appeals got 1,880 appeals filed by
detainees, but only 15% were accepted. In cases where
prosecutors appealed, 57% were heard.
It's clear that "in the vast
majority of cases," courts side with the prosecution,
including on whether not to reveal evidence on state
security grounds. As a result, detainees can't defend
themselves. ISA agents aren't required to appear in
court, and secret evidence amounts to hearsay. In
cases when evidence is revealed, it's relevance to an
alleged danger is unclear because the claim is so
often exaggerated or untrue.
"Contrary to a criminal
procedure, in which the evidence is generally
disclosed, the privileged evidence prevents
administrative detainees and their counsel from
examining (its) quality, scope, accuracy, and
relevance" to be able to refute it. "Defense counsel
must, therefore, grope in the dark when questioning
the prosecutors" to guess at which approach may
uncover the reasons for detention. Even so,
prosecutors often say they can't respond as their
answers are "privileged material," solely for the
judge. The HCJ accepts this as a given, making
judicial fairness impossible under a system designed
to deny it.
Even judges don't see all ISA
material and usually don't request it. As such, they
ignore caution and prevent counsel from conducting a
proper defense. In addition, detainees often aren't
told what danger they pose or what their detention
will prevent. And judges let prosecutors get away with
this, making a mockery of the rule of law, including
for minors.
Yet international law grants them
special protections. Under Article 37 of the
Convention on the Rights of the Child, no child shall
be deprived of his or her liberty unlawfully or
arbitrarily. Arrest, detention or imprisonment must
conform to the law, only be used as a last resort, and
for the shortest period possible. In addition, all
children must be treated humanely, respecting their
needs, access to family members, proper legal
counsel, other assistance, right to challenge the
legality of their detention, and get prompt
disposition. Israel ignores international law in all
respects and treats minors the same as adults.
Further, most administrative
detainees are held in Israel, contrary to
international law that prohibits their being held
outside the occupied territory. As a result, families
can't visit loved ones because entry permits are
practically impossible to get.
Israel's
Unlawful Combatants Law
It's similar to America's law
that international law expert Francis Boyle called a
legally nihilistic perversion of justice. Yet under
Israel's Unlawful Combatants Law (UCL), Palestinians
may be detained indefinitely without trial or hope for
judicial fairness. UCL defines an unlawful combatant
as anyone not entitled to POW status under
international law, who either took part in hostilities
against Israel (directly or indirectly) or belongs to
a force carrying them out.
An officer as low-ranking as
captain may order someone interned for 96 hours if he
has "a reasonable basis for believing that the person
brought before him is an unlawful combatant." But the
burden of proof falls on victims, not their
accusers.
Once an order is issued, the
chief of staff officer, a major general, may issue a
permanent internment order if he has "a reasonable
basis for believing" that the unlawful combatant
designation is accurate and the person threatens state
security. No rules of evidence apply so Palestinians
must prove otherwise, and under this law, no time
limits do either, so detention can be forever, without
trial and with no justice.
Judicial Review
and Presumptions Specified in the Law
Internees must be brought before
a District Court judge within 14 days from the date of
the internment order's issuance. If he approves it,
detainment is indefinite, subject to regular six month
reviews after which internees may continue to be held
or released at the judge's discretion. His decision
may be appealed to the Supreme Court, but rarely does
it intervene.
UCL is further strengthened by
two presumptions:
-- that releasing unlawful
combatants will harm national security, directly or
indirectly, even without evidence; and
-- during or after hostilities,
by "determination of the Minister of Defense....a
certain force is carrying out hostilities against
(Israel) or that the hostilities of that force....have
come to an end or have not come to an end, (so
claiming it's ongoing) shall serve as evidence in any
legal proceeding, unless the contrary is proved."
UCL's 2008
Revision
In 2008, the Knesset expanded its
internment powers to let the government declare the
"existence of wide-scale hostilities," during which
time internees may be held for seven days prior to
issuing a permanent internment order. In addition,
lower ranking brigadier-generals may do it, and
judicial review authority shifts from the District
Court to military one established especially for this
purpose.
Use of the Law
It's used primarily against
Gazans but may as well in the West Bank, so far
affecting 54 persons:
-- 15 Lebanese nationals since
2002, all of whom have since been released as part of
a prisoner exchange with Hezbollah following the 2006
Lebanon war; and
-- 39 are Gazans, including 34
interned in 2009 after Operation Cast Lead; nine are
still held.
Supreme Court
Judgments on the Law
In 2008, the High Court ruled the
law constitutional, and its president, Justice Dorit
Beinisch, stated that:
the "mechanism provided in the
law is a mechanism of administrative detention in
every respect."
Thus, Administration Detention
Law rules apply to UCL. Everyone interned must be for
prevention, not punishment for a past act, and those
affected must be:
"members of terrorist
organizations in a state of ongoing hostilities in a
territory that is not part of Israel, where a
relatively large number of enemy combatants is likely
to fall into the hands of the military forces during
the fighting."
In most cases, Israel opts for
this law because it:
-- grants greater state powers;
-- provides fewer individual
protections;
-- shifts the burden of proof to
them;
-- judicial review is less
frequent;
-- no state of emergency need
exist; and
-- a sole high-ranking officer,
on his discretion alone, may order anyone interned.
Criticism
UCL's original purpose was to
hold foreigners as "bargaining chips," a provision the
Supreme Court later prohibited. Its purpose was to:
"create a combination of
administrative detention and prisoner of war status, a
draconian incarceration track that grants extremely
minimal rights and protections to the detainee. On the
one hand, the state can prosecute such a person for
taking part in hostilities, while, on the other, it
can hold him in prison without trial as if he were a
prisoner of war, and release him only at the end of
hostilities, regardless of the personal danger he may
or may not pose if released."
The law was passed even though
the 1979 Emergency Powers (Detentions) Law served the
same purpose.
Despite subsequent changes since
enactment, UCL clearly violates international law as
does America's version. Even Israel's High Court held
that no "unlawful combatant" status exists in
international humanitarian law. These persons are
civilians entitled to Fourth Geneva and other legal
protections.
Two of its provisions are
especially egregious - the presumption, without
evidence, that a detainee poses a threat, and the
claim that ongoing hostilities release prosecutors
from proving it. Detainees are allowed to prove their
innocence, but doing so is practically impossible
because how can they prove a negative. It's their word
against prosecutors, and for non-Jews the task is
daunting, especially since most "evidence" is secret
for reasons of national security.
In addition, UCL is broadly
defined even though international law permits
administrative detentions only in exceptional cases
when there's no other way to avert danger. Israel uses
it repressively to detain Palestinians indefinitely,
using secret evidence that may not exist. Yet High
Court Justice Elyakim Rubinstein held that:
"It is not possible to hold a
fair proceeding where there is material that the
defense does not have the opportunity to try to use
for its needs."
Final Comments
Israel uses administrative
detentions repressively, in violation of the letter
and spirit of international law. In all cases,
security considerations must be balanced against
individuals' rights to due process and judicial
fairness.
Detentions based on secret
evidence without trial or meaningful judicial review
are "the most extreme measure that an occupying state
may use against residents of the occupied territory."
Used indiscriminately subjects hundreds of
Palestinians to injustice. It's an old story from a
state affording it only to Jews.
Stephen Lendman is a Research
Associate of the Centre for Research on Globalization.
He lives in Chicago and can be reached at
lendmanstephen@sbcglobal.net. Also visit his blog
site at sjlendman.blogspot.com and listen to the
Lendman News Hour on RepublicBroadcasting.org Monday -
Friday at 10AM US Central time for cutting-edge
discussions with distinguished guests on world and
national issues. All programs are archived for easy
listening.
http://republicbroadcasting.org/Lendman
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