March 1995
BACKGROUND INFORMATION ON ADMINISTRATIVE DETENTION:
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.