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How Israel keeps hundreds of Palestinians in detention without charge

The Ofer military prison in the West Bank. (Kenzo Tribouillard/AFP/Getty Images)

A four-day pause in hostilities between Israel and the militant group Hamas was extended by two more days, instead of expiring Tuesday morning, lengthening the brief reprieve offered to Gaza’s 2.1 million Palestinians, who have endured weeks of relentless Israeli bombardments. The move also gave further hope to the families of Israeli hostages abducted by Hamas during its Oct. 7 strike on southern Israel.

Through Qatari and Egyptian mediators, the two sides had agreed on an initial release of 50 hostages in Gaza and about 150 Palestinians, mostly teenagers and some women, imprisoned by Israel, over the four-day period. Sixty-nine hostages — the majority Israeli but also Thai, Philippine, French, Argentine and Russian citizens and others — and more than 100 Palestinians were released over the first four days. The extension raises the possibility of more captive exchanges and more moments of joy for their friends and loved ones.

But for freed Palestinians, the context in which they return is more barbed and fraught. In lists distributed to media, Israeli authorities labelall the prisoners up for release as “terrorists.” Some were convicted of crimes such as attempted murder; others were detained for activities like “throwing stones” or carrying knives. And a few, like 59-year-old Hanan Barghouti, the eldest female prisoner to be released, were in indefinite Israeli custody without any charge.

While there were scenes of jubilation in Ramallah in the West Bank as a group of released prisoners met their families over the weekend, Itamar Ben Gvir, Israel’s far-right national security minister, issued directives cracking down on such celebrations in East Jerusalem, where the Israeli police can directly operate. “My instructions are clear: there are to be no expressions of joy,” he said. “Expressions of joy are equivalent to backing terrorism, victory celebrations give backing to those human scum, for those Nazis.”

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Meanwhile, in the West Bank, most of which is under Israel’s military administration, Israeli authorities have detained roughly as many Palestinians as have been released in the past few days. A post-Oct. 7 crackdown saw the Palestinian population in Israeli custody almost double, by some measures: According to Palestinian rights groups, more than 3,000 Palestinians, mostly in the West Bank, were swept up by Israeli security forces. The majority appear to be held in administrative detention — that is, a form of incarceration without charge or trial that authorities can renew indefinitely.

Under international law, the practice of administrative detention is supposed to be used only in exceptional circumstances. But, as Israeli and international human rights groupsdocument, it has become more the norm in the West Bank. Even before Oct. 7, smoldering tensions and violence in the West Bank had led to a three-decade high in administrative detentions. Then, according to the Israeli human rights organization HaMoked, the total number of Palestinians in administrative detention went from 1,319 on Oct. 1 to 2,070 on Nov. 1 — close to a third of the total Palestinian prisoner population.

Israel’s critics contend that even those charged with specific crimes face a skewed, unfair justice system. Palestinians in the West Bank are subject to Israeli military courts, unlike the half-million Jewish settlers who live in their midst. These courts have in some years churned out convictions at a 99 percent rate, a state of affairs that raises questions about the due process afforded to Palestinians.

“Palestinians are routinely denied counsel, for example, and faced with language barriers and mistranslations that taint testimonies and confessions used in court,” explained Vox’s Abdallah Fayyad. “But it’s not only a lack of due process that plagues this legal system. Oftentimes, these cases are based on specious and far-reaching charges.”

The dynamics of the Israeli carceral system for Palestinians have long undergirded anger over the broader nature of Israel’s military occupation of the Palestinian territories. “The power to incarcerate people who have not been convicted or even charged with anything for lengthy periods of time, based on secret ‘evidence’ that they cannot challenge, is an extreme power,” noted Israeli human rights group B’Tselem. “Israel uses it continuously and extensively, routinely holding hundreds of Palestinians at any given moment.”

The deepening crisis that followed Hamas’s bloody rampage on Oct. 7 has only exacerbated tensions. “Administrative detention is one of the key tools through which Israel has enforced its system of apartheid against Palestinians,” Heba Morayef, Amnesty International’s regional director for the Middle East and North Africa, said in a statement this month, citing numerous reports of abuses suffered by Palestinian detainees in recent weeks. “Testimonies and video evidence also point to numerous incidents of torture and other ill-treatment by Israeli forces including severe beatings and deliberate humiliation of Palestinians who are detained in dire conditions.”

Israeli authorities have argued over the years that their practice of administrative detention is in line with policies in other democracies and constitutes a necessary preventive measure, given the security conditions that shape the West Bank. The feeble Palestinian Authority, which has long worked hand-in-glove with Israeli security agencies, has struggled to tamp down rising anger and militancy among Palestinians in the West Bank. In recent weeks, Israeli government officials have lashed out at censure from U.N. officials and organizations like Amnesty International, which an Israeli Foreign Ministry spokesperson describedas “antisemitic” and “biased.”

But Israel’s widespread use of the practice has been long criticized by international observers. A 2012 European parliamentary report described administrative detention as a tactic employed “principally to constrain Palestinian political activism.” In 2020, Michael Lynk, then the U.N. special rapporteur on human rights in the Palestinian territories, called on Israel to abolish the practice.

“Administrative detention is an anathema in any democratic society that follows the rule of law,” Lynk said. “When the democratic state arrests and detains someone, it is required to charge the person, present its evidence in an open trial, allow for a full defense and try to persuade an impartial judiciary of its allegations beyond a reasonable doubt.”

Ishaan Tharoor is a foreign affairs columnist at The Washington Post, where he authors the Today’s WorldView newsletter and column. In 2021, he won the Arthur Ross Media Award in Commentary from the American Academy of Diplomacy. He previously was a senior editor and correspondent at Time magazine, based first in Hong Kong and later in New York. Twitter

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