Israel uses detention without trial in the same way as all other democracies

May 10, 2012

Administrative detention is an anomaly in any democratic society. It exits in Israel as an anti- terrorist measure and has been used as such by practically every democratic country. The UK used such detention during the Second World War and in the context of the Northern Ireland situation; the US introduced it into its legislation as a reaction to the 9/11 bombing of the World Trade Centre.

The current hunger strike by Arab detainees in Israeli prisons is directed generally against the conditions of detention, but it has drawn international attention to this question of administrative detention.

The Israeli government is haunted by the spectre of the international furore caused by the 1981 death in a hunger strike of the IRA detainee Bobbie Sands in Maze prison, but insists on retaining the right to carry out such detention.

Administrative detention is used when the evidence against a suspect is based on intelligence that would be inadmissible in court or would reveal sensitive collection methods; such information usually is obtained from an undercover informant.

Under Israeli law, as in the UK, a person can only be convicted in a trial on the basis of such information if the informant is present in the court and undergoes cross examination by the defence attorney. For obvious reasons, informants are usually reluctant to undergo such a process and therefore it is impossible to conduct a trial.

Administrative detention is permissible in Israel in accordance with "state of emergency" legislation and, in the West Bank, in accordance with a military ordinance that conforms with Article 78 of the IVth Geneva Convention.

Israeli law stipulates that a detention order must be signed by the Minister of Defence where he believes such detention is necessary for security reasons.

The detention can be for a maximum of six months but can be renewed. The Defence Minister must sign the order personally and he cannot delegate this authority. The detainee must be brought within 48 hours before a president of a District Court (the equivalent of the British High Court) who has to review the secret evidence. If the judge does not approve the detention, the suspect must be immediately released. If the judge does approve the detention, then the detainee can appeal to a Supreme Court judge. Any renewal of the detention order requires similar judicial approval, with the right of appeal.

Administrative detention has been applied principally to suspected Arab terrorists but also to extremist Jewish settlers in the West Bank suspected of trying to organise anti-Arab terrorism. There are, at present, a total of some 300 people under administrative detention in Israel and in Israel-controlled West Bank. Administrative detention is not a happy phenomenon but is, apparently, a necessary element of the struggle of democratic societies against terrorism.

Robbie Sabel is a professor of international law at the Hebrew University and the former legal adviser to the Israeli Foreign Ministry

Last updated: 4:20pm, May 10 2012