Detention of Prisoners in Violation of International Law 
By Kenneth J. Theisen
On October 14th, two human rights’ groups released a seventy-page report condemning Israel’s detention of Palestinians without trial. The report states that the policy of extensive detentions breaches international law, which permits use of administrative detention only in very extreme cases. The groups are the Israeli Information Center for Human Rights in the Occupied Territories (B’Tselem) and Center for the Defence of the Individual (HaMoked).
The Israeli government uses administrative detention much as the U.S. government uses its terrorism laws, such as the Military Commissions Act (MCA), to incarcerate detainees of its war of terror. Effective due process is missing in both systems. But this should not be surprising as Israel is a dedicated ally of the U.S. in the Middle East. Both nations use the excuse of the need to defeat “terrorism” to carry out their crimes.
B’Tselem and HaMoked state that as of September 30, 2009, the Israeli government is holding 335 prisoners in administrative detention. Of these, 37 percent have been held from six months to a year and 33 percent for one year to two years. Twenty-eight percent of Palestinians have been in administrative detention for two to four years, and one percent has been detained for more than four and a half years. The U.S. has held some prisoners since 2001 in its war of terror. In both the case of Israel and the U.S., the prisoners have essentially been denied legal due process.
The report, Without Trial, holds that the judicial review of the administrative detention proceedings presents only an illusion of a fair judicial process, while in fact it denies the detainees any possibility to reasonably defend themselves against the allegations made against them. In the vast majority of cases, the judges declare evidence “privileged” and rely on written reports by the Israeli Security Agency. The reports are submitted to the judges outside the presence of the detainee or his attorney. Consequently, the detainees cannot refute the allegations or offer alternative evidence.
This is very similar to the system used by the U.S. under the MCA.
Also like the U.S. military tribunals, the Israeli courts are biased in favor of the Israeli prosecutors. According to the released report, most Israeli detention orders are approved by the court. According to Israeli army’s figures, between August 2008 and July 2009, judges in the court of first instance gave decisions regarding 1,678 administrative detention orders. In these decisions, the judges cancelled 82 orders (5 percent) and approved 1,596 (95 percent). In 2008, the military appellate court accepted 57 percent of the prosecution’s appeals of lower-court decisions, while accepting only 15 percent of detainees’ appeals.
In 2002 the Knesset, the Israeli parliament, enacted the Incarceration of Unlawful Combatants Law (The Law). The Law enables sweeping and swift detention without trial of many persons for long periods, and provides detainees with even less protections than the few granted detainees under the Administrative Detention Order that applies in the West Bank. Furthermore, an amendment passed in 2008 eased the use of the Law in the event of "wide-scale hostilities."
The Law was originally intended to enable the internment of Lebanese nationals whom Israel treated as "bargaining chips" for the exchange of prisoners of war. The Lebanese prisoners were taken in the various invasions of Lebanon launched by Israel. According to the report, Israel has used the Law against 54 persons, holding some of them without trial for long periods – up to seven and a half years. Fifteen were Lebanese nationals who were subsequently released, and 39 were residents of the Gaza Strip. Most of the latter were detained during Israel’s invasion of Gaza in December 2008 and January 2009 and have since been released. As of September 30, 2009, Israel was still holding nine Gazans pursuant to the Law.
Israel has used its various detention laws in violation of international law. Under international law a state may only detain a resident of occupied territory without trial to prevent danger only in extremely exceptional cases. Gaza, the West Bank, and parts of Lebanon were or are occupied territories under international law. Israel, however, holds hundreds of Palestinians for months and years under administrative orders, without prosecuting them. By doing so, it denies them legal rights to which ordinary detainees in criminal proceedings are entitled. Prisoners do not know why they are detained, when they will go free, and what evidence exists against them. They are not given an opportunity to refute this evidence used to detain them. Many prisoners are also subject to torture while incarcerated.
Israel claims it has "security needs" that justify its practice of detention without trial. But even if these “security needs” actually existed, the administrative detention as practiced by Israel still is a grave infringement of human rights, and constitutes a breach of international humanitarian law.
Most administrative detainees in Israel are West Bank residents who are held under administrative-detention orders issued by OC Central Command or by an officer delegated by him. The grounds given for the detention are that the person endangers the "security of the region" and that the danger cannot be prevented by other means. During the second Palestinian Intifada Israel often detained more than 1000 prisoners in administrative detention at any given time.
The Law defines an "unlawful combatant" as a person who is not entitled to the status of prisoner of war and belongs to a force carrying out hostilities against the State of Israel or has taken part in hostilities against the State of Israel, even indirectly. The chief of staff or an officer delegated by him may order the internment of such a person without trial and for an unlimited period of time if he has "a reasonable basis for believing" that the person poses a danger to state security. (The U.S. has also designated many of the prisoners it holds in its war of terror as unlawful combatants in order to hold them indefinitely.)
The Law establishes presumptions that tip the scale in favor of detention. In effect prisoners are guilty until proven innocent. The first presumption is that the release of a person classified as an "unlawful combatant" will harm state security, unless proven otherwise. The second presumption is that the organization to which the internee belongs carries out hostilities, provided that the Israeli minister of defense has made this determination. The presumptions relieve Israel of the need to provide evidence justifying the internment and its continuation. The burden of proof is put on the shoulders of the detainee to refute the allegations. The first presumption also contradicts the fundamental requirement specified in the Law that the prisoner must "pose a personal danger."
The administrative detention as practiced by Israel is a violation of international law. Has the U.S. threatened to withhold the billions of dollars in aid given to Israel each year if Israel does not change its ways? Has the U.S. criticized Israel for its violations of human rights as it does with countries like China, Iran, Syria, and North Korea? No! Instead the U.S. cuts deals to send $30 billion in weapons and munitions to Israel. It also continues to provide at least $3 billion in aid each year as it props up the Israeli economy.
U.S. officials repeat that Israel is democracy worth defending as it justifies arming Israel to the teeth so that it can continue to be an outpost for U.S. imperialism in the Middle East. When Israel is subject to international criticism for its various violations of international law, it can count on the U.S. to come to its defense, either with a veto in the United Nations or with extensive propaganda and other aid.
But then given the fact that the U.S. also regularly violates international law on a worldwide scale with its wars and other crimes against humanity, it would be a bit hypocritical for the U.S. to criticize Israel for imitating its patron. But then hypocrisy never seems to bother U.S. leaders.