Op-ed

Is Administrative Detention the Right Tool for Fighting Terrorism?

Lessons from the Case of Khader Adnan

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On February 21, 2012, just before the High Court of Justice was to hear his petition, Palestinian detainee Khader Adnan agreed to end his life threatening hunger strike after Israeli authorities agreed to release him in April, at the end of four months of administrative detention. In this article, Attorney Elad Gil explores basic questions about the use of administrative detention in Israel and highlights lessons learned from the Adnan affair. For additional information, read the policy paper A Reexamination of Administrative Detention in a Jewish and Democratic State (Available for free download, English)

Introduction

The hunger strike undertaken by Palestinian detainee Khader Adnan raised public awareness of administrative detention, a measure which Israel uses periodically with the sanction of Israeli law—especially in the West Bank, and very occasionally within the State of Israel itself. It would appear that Adnan's detention, his choice to go on a hunger strike, and the decision to release him, which was taken just before the High Court of Justice was to hear his petition, exposed the disadvantages of administrative detention and the defects inherent in this mechanism.

It is clear that even if the state's decision to release Adnan was correct in public and political terms, it is difficult to justify the State's handling of the matter in legal terms. If it was really so essential to detain Adnan in order to prevent him from being involved in terrorism, why would his hunger strike render him no longer "dangerous"? And if it was possible to release him following his hunger strike, why was it necessary to hold him in administrative detention in the first place?

The end of this affair, which damaged Israel's already battered image in the international arena, is a good opportunity for us to reexamine the need to use administrative detention as frequently as it is used by Israeli authorities.

What is "Administrative Detention"?

Administrative detention, which is also known as "preventive detention," is detention of an individual by the executive branch in order to protect state security or public safety. It is customary to distinguish between administrative detention and criminal imprisonment, which is governed by criminal law, in three ways:

  1. While criminal detention is imposed after a person has committed a criminal offense forbidden by law and has been convicted of that offense in a court of law, administrative detention aims to foresee the future. Administrative detention seeks to prevent a suspect from carrying out a plot, thereby preventing a potential danger. Administrative detention is speculative by its very nature, as it assumes that the authority imposing the detention can predict that the detainee has decided to commit a crime and will not change that decision.
  2. Criminal detention is imposed after a court proceeding in which the court examines the evidence to see if it establishes guilt and gives the defendant the opportunity to respond to the charges and refute the evidence presented. In contrast, administrative detention is carried out by the Minister of Defense (within the State of Israel), or by the Israeli military commander (in the West Bank), under partial legal supervision that goes into effect only after the detention has been imposed. In addition, in many cases, the opportunity given to an administrative detainee to prove that the detention is unjustified is purely theoretical, since the detention is based on classified evidence from intelligence sources that is not revealed to the detainee and his or her counsel.
  3. While a person sentenced to imprisonment knows the length of his or her sentence at the outset, as it is specified in the court's decision, administrative detention is intended to continue until the danger (which, as indicated previously, is speculative) has passed. Thus, at least theoretically, administrative detention has no time limit.

Within the State of Israel, administrative detention is regulated by the Emergency Powers (Detentions) Law 5739-1979, whereas in the West Bank, administrative detention is authorized by the security regulations of the Israeli military commander. While the Israeli law is used infrequently, the security regulations in the West Bank are used frequently. At the peak of the First Intifada, and during Operation Defensive Shield in the Second Intifada, about 1,500 people were held in administrative detention under security regulations. In recent years, the number of people in administrative detention has stabilized at about 300 detainees at a given time, of whom several have been held for over two years.

Although the theoretical justification for administrative detention is that it looks to the future—i.e., that it is intended to prevent the realization of a threat to state security-and that it is a preventative measure, in contrast with criminal imprisonment, which is punitive measure, the distinction between these two justifications of detainment is not at all clear. In most cases, suspects who have planned terrorist attacks have also committed criminal offenses during the process, and can be indicted and at times imprisoned for these offenses.

The real attraction of administrative detention is that it frees the State from the heavy burden of the rules of evidence and from the concern that it will have to disclose classified intelligence information to the detainee. Although the need to protect intelligence sources is real and vital, administrative detention as practiced today does not include a mechanism for providing suspects with the factual basis for their detention; as a result, suspects in such cases are usually denied the opportunity to mount a real defense. Even if we assume that the government always acts in good faith and genuinely believes that detainees are dangerous, the absence of a legal process in which both sides have the opportunity to present their arguments before an objective judicial authority is concerning and flouts basic constitutional values of the State of Israel: human dignity, the right to liberty, and the right to due process.

Is Administrative Detention an Israeli Invention? Do Other Democratic Countries Use Administrative Detention?

Like many elements of Israeli law, administrative detention is a relic from the British Mandate (when, ironically, it was used primarily against members of the Jewish undergrounds). The British continued to make use of administrative detention in the 1970s and 1980s in their struggle against the Irish underground. In recent years, the British used administrative detention for a short period of time in the battle against Islamic terror as well. In 2005, however, they replaced administrative detention with more moderate provisions that permit control orders restricting a suspect's movement, the use of tracking devices, etc.

The United States is currently holding about 100 administrative detainees in the Guantanamo Bay detention camp. In legal terms, the basis of the Guantanamo detentions is different from the basis of Israeli cases; the detainees in Guantanamo Bay are held by virtue of the authority of the President of the United States as commander-in-chief of the armed forces, and it can be asserted with a great degree of confidence that their legal situation is more serious than that of detainees in Israel. In contrast to the situation in Israel, however, in the United States it is not permissible to place citizens in administrative detention. This is by virtue of a law passed by Congress in 1971, as the result of lessons learned from the mass arrest of American citizens of Japanese origin who were placed in administrative detention during World War II.

Does Administrative Detention Constitute a Breach of International Law?

The West Bank is governed by International Humanitarian Law, which regulates, among other things, the relations between an occupying force and the local population in areas under belligerent occupation. In addition, international human rights laws that provide basic human rights apply to civilians in the West Bank. Article 78 of the Fourth Geneva Convention permits an occupying power to use administrative detentions for reasons of national security; however this is conditioned on there being "imperative reasons of security" and the detainee must be given the right of appeal. The accepted interpretation of the Convention maintains that the detention must be in response to a specific danger posed by the detainee, and that administrative detention must be used extremely rarely because of the serious infringement that it causes to the rights of the local population.

What Can Be Learned from Khader Adnan's Detention?

It seems that in the Adnan affair, more is concealed than is revealed. The circumstances leading to Adnan's arrest and detention have remained classified, and it is not clear whether the decision to release him was the result of a change that made him less of a danger or was a result of the media's interest and the fear that Adnan's hunger strike would lead to his death and turn him into a symbol of Palestinian resistance. It may be cautiously estimated that the second possibility is more reasonable. The few facts known about Adnan indicate that he is not an innocent human rights activist but a senior figure in the Islamic Jihad (according to that organization's website). From the unclassified material that was published, it seems that at a minimum, Adnan was involved in incitement to carry out suicide attacks in Israel.

With all due caution, it would appear that even from the little we know about the case, the following general insights may be derived from it regarding administrative detention:

  1. Administrative detention is not effective and does not attain its objective, at least not in this kind of case. If Adnan does not constitute a danger to public security, and his release is therefore justified, we must do some soul searching to determine why he was held in detention for nearly 70 days. On the other hand, if Adnan is indeed a threat to public safety, detaining him under such a problematic legal arrangement resulted in a public outcry, both local and international, which forced the State to release a dangerous man. Presumably, if Adnan would have been indicted on criminal charges, convicted, and sent to prison, public safety would have been better protected, and the deprivation of his freedom would have been viewed as legitimate both locally and internationally.
  2. The Adnan affair illustrates the urgent need to find a solution, within the confines of criminal law, which will ensure the protection of classified intelligence material during criminal proceedings while still allowing fair criminal proceeding to be conducted for defendants accused of crimes involving state security. Since other Western democracies have arrangements of this nature, arriving at such a solution is not within the realm of fantasy. Such an arrangement would reduce the system's need to use administrative detention and to pay the high price that the use of administrative detention entails-the loss of legitimacy in the eyes of many audiences, the sacrifice of fundamental national values, and serious damage to Israel's international reputation.
  3. It is not difficult to imagine the implications of the death of an administrative detainee in an Israeli prison. As a result, the benefit of administrative detention is questionable.

Administrative detention must therefore be used only as a last resort in the rarest of cases, after a concerted effort to find other alternatives. Similarly, it must be delimited by a fixed time frame. Many democracies involved in an ongoing battle against terrorism have come to this conclusion. Israel must reform the laws of administrative detention and simultaneously find solutions within criminal procedure laws and the rules of evidence that will reduce the need to use administrative detention. In the Adnan affair, Israel once again paid a high price in the local and international arenas. Hopefully, we will be wise enough to learn a lesson from this incident. 

Elad Gil is a graduate of the Faculty of Law of the Hebrew University of Jerusalem and is currently attending the LL.M program in International Law at American University Washington College of Law in Washington, D.C. 

Related Policy Paper

A Reexamination of Administrative Detention in a Jewish and Democratic State (Elad Gil, Mordechai Kremnitzer, 2011).