Over a year after last summer’s kidnapping and murder of three Israeli teens in the West Bank, the Israel Defense Forces is still holding 391 Palestinians in administrative detention – twice as many as were being held before the murders. The change in the number of people being detained without trial is due to the Military Advocate General’s decision to lower the requirements in such cases for holding people involved in terrorism.
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The number of Palestinians in administrative detention had fallen significantly in recent years, from over 1,000 in 2003 – at the height of the second intifada – to 134 in August 2013. Since then, the number has risen again, and in May 2014, before the kidnapping and murders, had reached 191.
In June 2014, following the kidnapping, the IDF launched Operation Brother’s Keeper to eradicate the Hamas terror infrastructure in the West Bank. During the operation hundreds of Hamas members were arrested, but there was insufficient evidence against many of them to put them on trial, so they were kept in administrative detention based on confidential information.
During the process of administrative detention the evidence can remain secret.
A military court must approve the detention order, and this ruling may be appealed to the Military Appeals Court. This ruling too may be appealed to the High Court of Justice, however the High Court has yet to free a Palestinian under administrative detention at this stage.
The military prosecution in the West Bank has made a conscious decision to lower the bar for the evidence required to hold a prisoner without trial, Haaretz has learned from conversations with Palestinian defense lawyers and sources in the military prosecutor’s office. This has been applied mostly in cases involving bringing funds into the West Bank.
In the past, a concrete link to terrorist funds was needed,” said a source in the military prosecution, who asked to remain anonymous. The evidence needed to include practical plans to bring in money, or similar acts, he said.
“Now minor involvement with the money suffices, such as someone who talked about a plan to bring in money, even if the plan is not necessarily capable of being carried out. Another example is connections with Hamas bodies outside [the territories]. In the past it was necessary to have a connection with Hamas bodies for military purposes, or a real, long and dangerous connection. Today it is enough to speak to a Hamas activist overseas in order to justify administrative detention.”
A Palestinian lawyer who represents many administrative prisoners said it seems there is a focus on monetary crimes and organizing the infrastructure for terror – and less on crimes involving firearms. In sessions the authorities speak a lot about bringing funds from Jordan and Gaza into Israel, with an emphasis on the lack of funds, and from here to the security danger in the area, said the lawyer.
The military prosecution notes that those behind the kidnapping and murders received 150,000 shekels from Gaza to finance the operation, which shows the need to fight against the entry of such funds.
The rationale behind the military prosecutor’s position on administrative detention is that it is used as a means to prevent a clear danger. This risk can change based upon conditions, and so too can the reasons for holding someone without trial. The Supreme Court heard this claim in July 2014, when the current president of the Supreme Court, Justice Miriam Naor, rejected a petition from a prisoner in administrative detention who the military had decided to keep in detention even after his original release date.
Naor ruled that the evaluation of the danger is not conducted in a vacuum, and there are always security considerations in the background concerning specific acts or concrete plans involving the prisoner. Of course, there is a need for an evidentiary basis for the arrest related specifically to the prisoner, and not just based on the overall security situation, she noted. But this evidentiary foundation can be seen in a different light based on a change in the present security situation.
In the specific case under discussion, Naor wrote: “Never, at any stage of the administrative detention proceedings, was ever found that the petitioner in front of us was not dangerous.”
The IDF Spokesman said: “In accordance with a security assessment and the obligation of the army to maintain security in Judea and Samaria, the IDF is authorized to order the detention of residents who endanger that security. The legal authority to order administrative detention is utilized solely as a last resort. Administrative detention orders are subject to meticulous judicial review, both by the military courts and by the High Court.”