Administrative Detention: The Shame of Israel's High Court

About 750 administrative detainees are currently sitting in Israeli jails. Each is an 'exceptional among the exceptional' cases, allowing the judicial system to excuse this blatant violation of human rights.

Mohammed al-Qiq in the hospital.
AP

The 93-day hunger strike by Mohammed al-Qiq, who was being held without trial in administrative detention, came to an end on February 26, after Israeli security forces informed him that his detention was being shortened by four weeks and would now end on May 21. They also said they had no intention to extend it later beyond that date. Now, in the absence of immediate pressure, we can look back at the case and examine what it tells us about ourselves, about Israeli society.

The main lesson is that the security forces do what they want, fearlessly and without oversight. Over the years, the justices of the Supreme Court have obediently approved home demolitions, targeted killings, school closings, the use of flechette shells, the confiscation of land, curfews and blockades. In their examination of administrative detentions, the justices frequently state that they find no grounds to intervene in decisions made by the military courts.

In the case of Qiq, they made do with cosmetic changes: a “suspension” of his detention until he regains his strength at Ha’emek Hospital in Afula (if he would accede and stop his hunger strike following this strange decision); removal of the restraints tying him to his bed until the 72th day of the strike, etc.

The justices dressed their decisions in the rhetoric of the value of life, (“We do not wish for the death of the petitioner, heaven forbid, and [the security forces] also don’t wish for this, of course”), but in the same breath placed full responsibility on Qiq himself. “The petitioner is the one who possesses the keys to his well-being and health, he and no one else,” they ruled. And his will, “not to say his whims,” are the source of all of his difficulties, they added.

Obedience to the security establishment usually comes after the judges are given access to confidential material presented on an ex parte basis – with only one side present. The judges are stripping themselves, knowingly and willingly, of their judicial power. In the absence of effective presentation of a legal defense, conflicting evidence is not presented and differing interpretations of existing evidence are not raised. There is no “expert testimony” submitted by the two sides, and as a result, the security forces are given exclusivity over their description of reality and their explanation for it.

The justices’ determination that the case of Qiq involves someone who is “clearly a Hamas activist dealing with military terrorism” should really be deemed as follows: “The security forces claim that he is a Hamas activist. They are presenting us with evidence over which we have no ability to examine its credibility. The petitioner cannot defend himself from them, and we are parroting the inarticulate text that is dictated to us while suspending judgment of our own.”

And then comes the deal that makes a mockery of this finding. After all, what will be happening on May 21? Will Qiq cease being “clearly a Hamas activist”? Will he no longer pose a threat to the security of the region? How can it be that from now until that time, he still constitutes such a threat? And why will the period lapse in May and not, as provided in the original order, in June? The whims of the defense establishment are suddenly revealed, putting the justices of the High Court of Justice in the ridiculous position that they deserve.

About 750 administrative detainees are currently sitting in Israeli jails. Each is an “exceptional among the exceptional” cases, allowing the judicial system to excuse this blatant violation of human rights. In light of all this, the silence of my colleagues at the law school faculties cries out. In contrast to attractive subjects such as force-feeding or DNA testing, the scandal of administrative detention does not prompt them to respond. So I say to them: Come out, and make it clear to the High Court justices the “conditions of possibility” of judicial power. They do not include voluntarily given up such power.

The writer teaches in the philosophy department at Tel Aviv University.