[Palestinian Prisoners’ Day] Colonial continuities and kangaroo courts: administrative detention and the Israeli military judicial system

Ofer military court and prison, built on expropriated land from the village of Beituna, near Ramallah (Ayah Kutmah)

Ayah Kutmah

Mondoweiss  /  April 17, 2022

Just as mass incarceration remains a defining feature of the Israeli occupation, so too has prisoner resistance. Currently, an ongoing boycott of the Israeli judicial system by all 530 Palestinian administrative detainees has surpassed 100 days.

Palestinian Prisoners’ Day, observed on April 17, commemorates the hundreds of thousands of Palestinian political prisoners held in Israeli prisons. Carcerality and mass incarceration have defined Israel’s colonial project, which greatly expanded following the military occupation of the West Bank and Gaza in 1967. Since 1967, with the advent of the Israeli military judicial system, over 850,000 Palestinians have been arrested and imprisoned by the Israeli regime. Currently, 4,450 Palestinians are held in Israeli prisons, among them 32 women, 160 children, and 530 administrative detainees held without charge or trial. 

The mass incarceration of Palestinians takes place under the auspices of the Israeli military judicial system, the central mechanism of the military regime ruling over the West Bank and Gaza. Since its establishment, hundreds of thousands of Palestinians have been arrested and tried according to an ever expanding set of Israeli military orders—over 1,800 orders—in military courts rife with gross fair trial violations at a conviction rate of over 99%. Military orders, issued by the Israeli military commander and predicated on “security grounds,” touch on every aspect of Palestinians’ daily lives, including land and property law, freedom of movement, political, social, and cultural expression, freedom of association, education, public health, and even traffic violations. 

Alongside the trial and imprisonment of thousands of Palestinians every year, Israeli occupation authorities employ administrative detention, a procedure allowing for the indefinite detention of an individual without charge or trial, to hold hundreds of Palestinians indefinitely at any given time. The practice of administrative detention, originating with the British Mandate Defense (Emergency) Regulations (1945), reflects one of the most explicit colonial continuities between British colonial and Israeli law. The provisions were adopted and reappropriated by Israeli authorities under three separate laws: (1) Article 285 of Military Order 1651 applying in the West Bank; (2) The Internment of Unlawful Combatants Law, which has been used against residents of Gaza since 2005; and (3) The Emergency Powers Law (Detentions) (1979), applying to individuals who hold Israeli citizenship. 

Only a handful of Jewish Israeli citizens and settlers have ever been held under administrative detention. Instead, administrative detention is legislated to span territorial delineations while targeting Palestinians throughout, reaffirming the reality of a single overarching apartheid regime.

Administrative detention orders are issued for up to six months, renewable indefinitely, on the basis of “secret information” that the person poses a “security threat” to the region. Neither the detainee nor the lawyer have access to this information, which is only shared between Israeli intelligence, the Israeli military prosecutor, and military judge. The practice is intentionally draconian, as Sahar Francis, Director of Addameer Prisoner Support and Human Rights Association, [1] told me in an interview, “to arrest as many people as they can without being forced to present any evidence to the military courts.” 

Lawyer Mahmoud Hassan, who has represented hundreds of Palestinian political prisoners and detainees in front of the Israeli military courts, recounted to me the case of a young Palestinian man arrested by Israeli occupying forces and placed under administrative detention for a word he’d said on the phone—“kazieh”—Arabic slang for gas station, but which Israeli intelligence mistranslated to “gas.” 

“For them, ‘gas’ meant a bomb made of gas, and that was the evidence presented to the judge,” Hassan explained in an interview. The young man spent one year in prison, unaware of why he was held, until an Israeli military judge who knew Arabic noticed the mistranslation and let him go. If this evidence had been shared with the lawyer or detainee, they could have explained the mistranslation and the young man may not have spent a year in prison. “The ability of the detainee or the lawyer to argue against secret evidence is almost nonexistent,” Hassan said. 

While this case highlights the sheer absurdity, arbitrariness, procedural flaws, and fear permeating the system, it does not sufficiently account for the broader, more sinister intentional persecution and arbitrary administrative detention of thousands of Palestinian activists, students, politicians, civil society leaders, and individuals opposing the Israeli occupation. 

Israeli occupation authorities’ widespread and systematic practice of administrative detention far exceeds the exceptional parameters set by International Humanitarian Law (IHL) governing foreign occupations, leading UN Special Rapporteurs to repeatedly call for a complete end to Israel’s “unlawful practice of administrative detention.” In 2006, the UN Committee Against Torture found the indefinite and lengthy periods of administrative detention to constitute a form of torture. 

Mass arbitrary arrests and detention dramatically increase following any popular movement or uprising, as was the case last year during the May 2021 Palestinian “Unity Uprising.” In 2021, the number of administrative detention orders surged to 1,595 orders, an increase of over 40% from the previous years, including against Palestinians with Israeli citizenship. “It was always very clear that administrative detention is a tool for the occupation to maintain control over the Palestinian people,” says Francis. 

Renewed protests against Israeli settler-colonial policies in the Naqab, have already been met with administrative detention, according to Mahmoud Hassan. “Detention is tied, too, to control of the land,” says Hassan, “it won’t be too far in the future that there will be more cases of administrative detention in the Naqab, and greater persecution.” 

Palestinian students are especially targeted by Israeli occupation forces for their student activism, such as 22-year-old Birzeit University student council president Shatha Hassan, who was arrested and held without charge for five months. Currently, 14 Birzeit University students remain in administrative detention, according to documentation by the Right to Education Campaign

Israeli occupation authorities also use administrative detention as a fait accompli to compel a legal or physical reality when they are unable to do so using other civil or military judicial procedures. The recent arbitrary arrest and detention of Salah Hammouri, a Palestinian-French Jerusalemite and prominent human rights defender, took place amid an ongoing legal battle in Israeli civil courts against his illegal residency revocation and forced deportation from Jerusalem. The issuance of his administrative detention order by the Israeli military commander, rather than the Minister of Defense as is the case for Jerusalemites, seeks to cement his residency revocation, leading to real fear of his imminent deportation upon release.

More often, administrative detention is leveraged to shuttle individuals between trial and detention procedures to prolong their incarceration and coerce a confession, as in the case of 80-year-old retired lawyer Bashir Khairi. Khairi had been twice ruled to be released on bail by the Israel military court, only to be issued a six-month administrative detention order. The confirmation of the order by the Israeli military judge, citing “secret evidence,” led Bashir Khairi to declare his boycott of the Israeli military courts, precipitating the current mass boycott undertaken by Palestinian administrative detainees against Israeli military courts.

Colonial entrenchment

Guilt is predetermined under the Israeli military judicial system, where thousands of Palestinians are tried and convicted every year in kafkaesque trials lasting for as short as a few minutes. Still, it is not merely an issue of gross fair trial violations—the solution to that would be “bettering” the military courts. Rather, the illegality of the Israeli military judicial system refers to its integral role in sustaining and feeding the establishment of a comprehensive Israeli apartheid and occupation apparatus over the Palestinian people.

Over the past year, several international human rights reports have emerged charging the Israeli regime with the crime of apartheid, including those by Human Rights WatchAmnesty International, and the UN Special Rapporteur for the situation of human rights in the Palestinian territory occupied since 1967. All invariably link the Israeli military judicial system to dueling legal regimes that systematically privilege one racial group over another, and which form part of Israel’s broader policy of domination and control over the Palestinian people. 

The crime of apartheid comes alongside a host of other gross crimes and human rights violations endemic to the Israeli military judicial system, most notably the war crime of intentionally denying Palestinian prisoners their right to a fair and regular trial, and the forcible transfer of Palestinian prisoners to prisons and detention centers in the Occupying Power. Addameer currently represents the cases of three Palestinian child prisoners before the International Criminal Court. 

An apartheid analysis, however, falls short in accounting for the colonial entrenchment of the system, which has continually, and illegally, expanded its jurisdiction over “crimes” committed by Palestinians, and embedded Israeli control over the land. It is not solely the discriminatory application of a military regime, the systematic suppression of political and civil rights, or the profound human rights violations—amounting to war crimes—bound within the system, but a broader aim of settler-colonial control, and a more imminent reality of Israeli annexation.

“This is why we say it’s more than apartheid,” says Sahar Francis, “the military court system is part of the whole system of apartheid and colonialism that should be criminalized on the international level.”

Prisoner resistance

Just as mass incarceration remains a defining feature of the Israeli occupation, so too has Palestinian prisoners’ resistance, taking form in the Palestinian prisoners’ movement. Throughout, the prisoners’ movement, alongside local and international human rights organizations, has launched boycotts, strikes, and campaigns targeting the arbitrary and oppressive practices of the occupation. 

“Addameer was very active back in 1997 against administrative detention when the families of the administrative detainees first launched their campaign,” recounts Sahar Francis. The campaign took place against the backdrop of the Oslo accords, when Israeli occupation authorities arrested hundreds of activists and political leaders opposed to the accords, with many held for years without charge. By 1999, the campaign succeeded in reducing the number of administrative detainees to less than 40, the lowest of any period. The start of the Second Intifada, however, brought back the widespread practice of administrative detention, with over one thousand Palestinians held without charge by the end of 2002. 

Since then, Addameer has periodically brought forth campaigns related to administrative detention, launching the targeted “Stop Administrative Detention” campaign in 2009, which continues to this day. The Palestinian prisoners’ movement, too, brings the issue of administrative detention to the fore of negotiations and collective action, including during the mass hunger strikes of 2012 and 2017.

Beginning 2012, an increasing number of Palestinian administrative detainees undertook hunger strikes in protest of their extended detention without charge or trial. These strikes captured international media attention and solidarity, but at grave risk to the health of the detainees, and with piecemeal concessions that their detention would not be extended. 

“An individual hunger strike results in an individual decision, with no change to the policy of administrative detention,” says lawyer Mahmoud Hassan, “Nor does it prevent them from re-arresting you later on.” 

In 2021, many Palestinian administrative detainees took on long hunger strikes to gain their freedom, such as Kayed Fasfous, who persisted for 131 days. The ability of these long hunger strikes to achieve individual freedom had no effect on Israeli authorities’ continued expansion of administrative detention. This reality led Palestinian administrative detainees in January 2022 to declare their mass, collective, and comprehensive boycott of all Israeli military courts. 

The ongoing boycott has surpassed 100 days and encompasses all Palestinian administrative detainees—currently 530—as both detainees and their lawyers refuse to attend military court sessions and appeals, including those at the Israeli civil High Court.  Since then, Israeli military courts have been confirming and renewing administrative detention orders in absentia in secret proceedings consisting of an Israeli military judge, military prosecutor, and Israeli intelligence. 

Already, Israeli military courts began implementing penalties aimed at ending the boycott. One such example is a ruling that prevents detainees or their lawyers from receiving a copy of the administrative detention orders or court rulings, forcing them instead to petition the court for the order. As Mahmoud Hassan points out, this ruling affects detainees who do not know how long their order is, and families who need the copies to appeal to the Red Cross or the Palestinian Commission of Detainees Affairs. 

In time, the boycott may escalate to take on other forms of protest, including the possibility of an open mass hunger strike following the holiday of Eid al-Fitr, according to the Palestinian Prisoner’s Society

Yet Palestinian administrative detainees understand that their boycott, and any other escalatory steps, are unlikely to lead Israeli occupation authorities to completely abolish the use of administrative detention. The practice is too effective for the regime to let go entirely. Rather, as Sahar Francis points out, “this really needs pressure from the international level, especially the UN and the ICC, to consider that the [systematic] use of administrative detention is a war crime because it is arbitrary detention.” 

Accountability, and the possibility of prosecution for “all the military commanders, the judges, and the prosecutors involved in the process: who issued the order, who confirmed the order, who made sure the order was extended,” according to Francis, remains a necessary prerequisite and practical effort to pursue an end to these systematic violations.

NOTE

  1. Addameer was one of six leading Palestinian NGOs designatedby Israeli authorities as a “terrorist organization” in October 2021, and subsequently outlawed by a military order. The arbitrary and blanket criminalization, widely denouncedby the international community, was similarly justified by “secret evidence.” 

Ayah Kutmah is a Visiting Research Fellow at the Muwatin Institute for Democracy and Human Rights at Birzeit University