March 1995


Administrative Detention in Judea, Samaria and Gaza

Israel is empowered by international law to maintain order and public safety in the territories, for the benefit of Arabs and Jews alike. The decision of the military authorities to place specific residents of the territories under administrative detention, for a maximum period of six months, is taken because of their ongoing involvement in activities which pose a danger to the lives and safety of others.

Following the Declaration of Principles and the Gaza-Jericho Agreement, Israel released several thousand Palestiniain prisoners, including many held in administrative detention. However, the recent wave of brutal terrorist attacks by extremist Islamic groups resulting in the death of over 50 innocent individuals and the public declaration by these organizations of their intention to commit further murderous attacks, necessitated certain measures to ensure the safety and security of Israeli citizens from the threat of terror. One of these measures is administrative detention.

Administrative detention is authorized both by local and international law. Article 78 of the Fourth Geneva Convention specifically recognizes the need to use administrative detention in certain circumstances. The official commentary of the International Committee of the Red Cross (1958) explaines that Article 78 relates to "people who have not been guilty of any infringement of the penal provisions enacted by the Occupying Power, but that Power may, for reasons of its own, consider them dangerous to its own security and is consequently entitled to restrict their freedom of action."

Israel’s administrative procedures go beyond Article 78 in protecting the rights of the detainee. They ensure that no one is issued with a detention order without being informed of the reasons why.

When deciding whether to place a suspect under administrative detention, the following principles apply:

a. Administrative detention is to be used only in those cases where information against an individual cannot be revealed in court and where the protection of witnesses and sensitive sources of information is the reason for not putting the individual on trial. Full disclosure of the evidence might alert other members of a terrorist cell, allowing them to increase the effectiveness of their attacks, evade arrest, or relocate their weapons.

b. An individual cannot be placed under administrative detention for his or her views or for political acts, but only for hostile and illegal activity.

c. The information serving as the basis for the detention must show continuous and ongoing activity, and must support a well-founded suspicion that the individual will continue to engage in such activity were it not for his being placed under detention.

d. The information serving as the basis for the detention must be verified and reliable, in order to preclude the possibility that individuals might be detained on the basis of groundless accusations. Therefore, every care is taken to ensure that the information is based on more than one source and, when possible, several sources.

e. Administrative detention is preventive in nature and is resorted to only in those cases where there is an imminent threat to public safety and national security.

Those subject to detention orders are entitled to legal counsel of their choice as well as the opportunity to appeal the order on two judicial levels: at first instance before a military judge where the defense attorney may question General Security Service witnesses; on further appeal, the Supreme Court may review the ruling of the military judge.

It should be noted that in recent years other democracies, such as Britain, Italy and Canada, have used administrative detention when faced with the threat of terrorism of large scale civil disorder.