Doubling the number of prisoners held without trial in Israel over the past year, following the war in the Gaza Strip and the events preceding it, is troubling. It reflects excessive, illicit use of a means intended only for rare, aberrant cases.
Detention without trial must only be practiced as a last resort, when a person presents a security risk at a high level of certainty, and there’s no other way to minimize that risk. Detention without trial is a preventive measure, whose use must be temporary, specific and limited.
Unlike arresting a suspect or imprisoning a person who has been convicted in court, detention without trial is subject to different rules. In most cases the information leading to the detention is not disclosed to the prisoner and his attorney, so it is difficult to defend the detainee from the secret allegations against him.
Detention without trial is not an incarceration for the purpose of investigation, nor is it an arrest of one facing trial. It is a procedure undertaken outside the legal system and without the guarantees, evidence and standards that the legal system requires.
According to the Haaretz report, the sharp rise in detentions without trial stems from the Military Advocate General’s decision to lower the requirements for such detention. This applies especially to cases of people suspected of bringing funds into the West Bank.
“In the past, a substantial link to terrorist funds was needed [to warrant detention without trial], like practical plans to bring money into the region or similar acts,” a source in the military prosecution said.
“Now minor involvement with the money suffices, such as someone who talked about a plan to bring in money, even if the plan cannot be carried out. Even regarding connections with Hamas, today it’s enough to speak to a Hamas activist overseas to justify detention without trial, without proof of a real, dangerous link,” he said.
The Military Advocate General’s position, that detention without trial is intended to prevent danger that changes according to the circumstances, is not in keeping with the court ruling that this measure can only be justified in cases of near-certainty of danger to state security. The only right way to deal with the suspicion of involvement with terror must be investigation and trial in due legal process.
The wholesale use of detention without trial is a severe breach of the right to liberty, one of the core rights of the Basic Law: Human Dignity and Liberty. The state must restrict this measure to especially grievous and rare cases and stop its current practice immediately.
The attorney general and Military Advocate General must issue a policy in this spirit and not allow sweeping use of a draconian step that enables denying freedom without trial.
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