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Israeli Abusive Administrative Detentions

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A Semblance of a Judicial System


Two features of administrative detentions show they're arbitrarily and improperly imposed. First, the wording used is "laconic, uniform, and contains no reference to the individual attributes of the detainee." Second, most orders are for six months, rarely for less than three months, unrelated to the criteria best suited for individual cases. As such, a huge gap exists between the established rules and their implementation as Israel uses detentions indiscriminately, not for exceptional cases.


Yet military court spokespersons extol what they call "the court's practice of frequent intervention in administration detention orders (and the alleged existence of) rigorous judicial review" with statistical support for what's practiced.


However, the books are cooked. The data is inaccurate and misleading as judges routinely approve 95% of orders, rarely limiting the power of military commanders. Further, in 2008, the Military Court of Appeals got 1,880 appeals filed by detainees, but only 15% were accepted. In cases where prosecutors appealed, 57% were heard.


It's clear that "in the vast majority of cases," courts side with the prosecution, including on whether not to reveal evidence on state security grounds. As a result, detainees can't defend themselves. ISA agents aren't required to appear in court, and secret evidence amounts to hearsay. In cases when evidence is revealed, it's relevance to an alleged danger is unclear because the claim is so often exaggerated or untrue.


"Contrary to a criminal procedure, in which the evidence is generally disclosed, the privileged evidence prevents administrative detainees and their counsel from examining (its) quality, scope, accuracy, and relevance" to be able to refute it. "Defense counsel must, therefore, grope in the dark when questioning the prosecutors" to guess at which approach may uncover the reasons for detention. Even so, prosecutors often say they can't respond as their answers are "privileged material," solely for the judge. The HCJ accepts this as a given, making judicial fairness impossible under a system designed to deny it.


Even judges don't see all ISA material and usually don't request it. As such, they ignore caution and prevent counsel from conducting a proper defense. In addition, detainees often aren't told what danger they pose or what their detention will prevent. And judges let prosecutors get away with this, making a mockery of the rule of law, including for minors.


Yet international law grants them special protections. Under Article 37 of the Convention on the Rights of the Child, no child shall be deprived of his or her liberty unlawfully or arbitrarily. Arrest, detention or imprisonment must conform to the law, only be used as a last resort, and for the shortest period possible. In addition, all children must be treated humanely, respecting their needs, access to family members, proper legal counsel, other assistance, right to challenge the legality of their detention, and get prompt disposition. Israel ignores international law in all respects and treats minors the same as adults.


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