Due Process

By Gideon Levy 

Tarek Burkan was a well-dressed, light-haired Palestinian boy from Hebron, his first mustache growing in. Most of the time I spent with him, he was quiet and seemed calm. Only when I asked him about the circumstances of his detention did he respond openly and aggressively: “Ask the Shabak [the Hebrew acronym for Israel’s General Security Service, also known in English as Shin Bet]. Next time I’ll throw stones and then at least I’ll understand why I’m detained.” There was nothing apparently psychotic in this anger of his, just as there is not in the anger of all the administrative detainees, jailed for months and years in Israel without a trial or an explanation.

They are all residents of the territories conquered by Israel in 1967. During the first Intifada, Israel detained thousands; after it ended most were released. Following the outbreak of the Second Intifada the number of detainees again rose to more than one thousand, and in early 2006 Israel was holding over 700 detainees. The number has varied over time, but it is not the number that is significant.

The question is one of principle and it touches on two basic issues: Israel’s position among the family of nations and Israel’s internal position as a country of law and order in its own right. But the boy Tarek was far removed from all that. I find it hard to believe that he ever heard of the Geneva Conventions, or any other body of humanitarian or human rights law. He is a mentally ill boy whom I met a few years ago in his cell in the Megiddo prison in northern Israel, inside the Green Line. It is a military prison more like a camp than a prison, but its fences are well guarded. As well as Megiddo, administrative detainees are also now held at the Ofer camp in the West Bank and the Ansar 3/Ketziot camp in the Negev desert in southern Israel.

Getting back to the boy, Tarek: several weeks prior to our prison meeting, there was a bad stretch in his illness and he started to be dangerous to himself and his surroundings. He was sixteen years old, had been orphaned from his father when he was one, and hospitalized in the past in a Bethlehem hospital for the mentally ill. Child and adolescent psychiatry expert, Dr. Fahum Tarek, of the Mental Health Center in Tirat Hacarmel, Israel, who examined him at the request of the prison authorities wrote in his statement: “It is almost certain that he suffered [in the past] from paranoid schizophrenia… also during his detention, a psychotic condition with delusional thoughts was suspected.” The prison commander admitted that this boy did not belong in Megiddo prison.

Many of the other administrative detainees in Israel do not belong in prison. Among them are young and old, poets and laborers, men and women, Hamas members and left-front members. These are not people who have been charged and convicted of a criminal offence. Instead they are held because they are said to pose a danger to the State of Israel, but in most cases they have not been given a fair chance to argue against their detention, in violation of accepted standards of due process.

Detentions are carried out on the basis of an administrative order, signed by a military commander, but the real responsibility lies with the Shabak, the omnipotent Israeli security organization. At no stage is there any indictment or trial. Detainees can appeal and have their case reviewed by a judge, but even the appeal process does not meet the minimal standard of due process. Neither the detainees nor their lawyers are given any idea what the evidence against them is—everything is privileged and confidential. No witnesses testify against them, evidence is presented by a Shabak representative to the judge alone. The detainees have no idea when they will be released: every six months they can expect notice that their detention has been extended without any explanation.

There are some whose detention has been extended nine to ten times, and the majority have been jailed for over two years. There are detainees who served court sentences only to find that on the day of their release they were put in administrative detention. Since the signing of the Oslo accords, according to a 1997 report by B’tselem—the Israeli Information Center for Human Rights in the Occupied Territories—some people have been detained for “nonviolent political activity and the expression of political opinions.” If so, they are political detainees, even if Israel does not accept the definition.

The B’tselem report stated that while Israel claimed to be adhering to general principles of international law governing detention, “rhetorical declarations by officials and judges notwithstanding, Israel severely violates every one of these principles in practice.”

Administrative detentions in the West Bank are carried out under order 1229 of 1988. This authorizes military commanders to detain a person for a maximum of six months when there is “a reasonable basis to assume that reasons of regional security or public safety require that a certain person be held in detention.” The order fixes no maximum cumulative time, and therefore detention can be extended repeatedly and indefinitely. Even the meaning of the magic words “regional security” and “public safety” is left to the exclusive discretion of the regional military commanders. There is a right to appeal to a military judge against each extension, but the restrictions on hearing the evidence against detainees remain.

The situation is contrary to the natural principles of justice and to several international conventions to which Israel is a party. Israel ratified the International Covenant on Civil and Political Rights in 1991. Its Article 9 states: “No one shall be subjected to arbitrary arrest or detention.” Although Israel holds that at the time of and ever since ratification it has been in “a state of public emergency” that requires derogation from Article 9, the power to derogate from (i.e. suspend the application of) the Covenant’s rule against detention is not unlimited. Even during emergency situations, the State is required to protect basic human rights as much as possible and every move against them must pass the test of necessity and proportionality. Detention without trial is regarded in human rights law as a preventive measure to be used only in exceptional circumstances; it must not be used as an alternative to criminal proceedings, by holding detainees to punish them for acts they may already have committed.

Administrative detention in the territories is also generally agreed to be subject to the guidelines of the Fourth Geneva Convention of 1949. (Israel disputes the legal applicability of the Convention, but has agreed to respect its humanitarian and customary provisions.) The Israeli government claims that its use of administrative detention conforms to Article 78 of this Convention, which permits detentions due to “imperative reasons of security.” However, in this context, the International Committee of the Red Cross (ICRC) Commentary to the Geneva Conventions states that holding people without trial must be an “exceptional” measure. The commentary notes that according to Article 49, moving detainees to detention sites outside the occupied territories (as Israel does) is prohibited.

Where criminal trials are held, both humanitarian and human rights law set strict rules for how such trials should be conducted. These requirements include: the right to be informed of charges; to be tried without undue delay; to prepare and present a defense; to be assisted by counsel; the right not to be forced to confess, and to be presumed innocent until proven guilty. A similar set of standards is implied by Common Article 3 of the Geneva Conventions of 1949, which applies to non-international armed conflict and forbids “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

The boy, Tarek, had not heard about any of this. In his cell, he was irate about his detention and, primarily, about the lack of information he had about any of the charges against him. Many comrades who have suffered the same fate, mentally healthier than Tarek, are no less irate. Nonetheless, the real anger and frustration should have been in the State of Israel: in the final historical reckoning, the end result of administrative detention will be that it will affect the jailers more than the detainees. Tarek Burkan was released after serving six months of detention without a trial. His friends and successors in Israel’s prisons will also be released one day.

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