Atypical Detention and Typical Judicial Review in Israel: HRW
March 25, Jerusalem: After 93 days of refusing food, an emaciated Palestinian journalist named Mohammed al-Qeeq resumed eating on February 26. He began his hunger strike to protest being held by Israeli military officials without trial in a system known as administrative detention and ended it when Israel agreed to release him in May, when his detention order will expire.
The circumstances of his arrest are typical of Israel's administrative detention system, in which nearly 600 Palestinians are being held without trial, according to the Israeli human rights group B'Tselem. Israeli security officials claim that releasing him would endanger security because, they say, he is active in the militant group Hamas. But they also say that showing him the evidence against him would endanger security, so he has no chance to refute the charges—typical in these cases. His wife told Human Rights Watch he was arrested because of his writing and political activism critical of Israel and the Palestinian Authority.
Administrative detention, like other restrictive measures permitted under the law of occupation, is supposed to be exceptionally tolerated as a necessary but temporary rights restriction, applicable in emergencies. Yet Israel's use of the practice has nearly quadrupled since a low point in 2013, according to B'Tselem. Israel's occupation of the Palestinian territories is nearing the half-century mark, raising even more questions about the use of supposedly temporary and exceptional measures that inherently trample on the right to due process.
As part of my legal training, prior to litigating human rights cases before the Israeli Supreme Court, I clerked on the court and saw this system in action over and over again. Al-Qeeq's case stands out for the price he was willing to pay to protest his detention—it is not clear to what extent his body and mind will recover from the starvation—but the judicial review he received was all too typical.
Al-Qeeq challenged his detention before the Israeli Supreme Court, the only non-military court that has jurisdiction. As it has in other such cases, the court refused to cancel his administrative detention but said that it would be "suspended" so long as Al-Qeeq's medical condition neutralized any potential threat. The decision put him into legal limbo, no longer chained to his bed, but not free to leave the Israeli hospital where he was held. Medical reports submitted to the court reported that al-Qeeq had become drowsy, was intermittently unable to hear or speak and suffered constant pain.
With the exception of a few days in January in which Israeli prison authorities forcibly connected him to an intravenous drip believed to contain vitamins and minerals, he took only water from November 25 to February 26. He survived one of the longest hunger strikes ever carried out by a Palestinian prisoner.
No one seems to have really known what it meant for an administrative detention order to be suspended, but the court clarified that the order could be renewed if and when al-Qeeq's condition improved and, presumably, he would regain the capacity to pose a threat.
We are talking unequivocally about a Hamas activist participating in military terrorism wrote Justice Elyakim Rubinstein [Hebrew], a former attorney general and one of the most senior justices on the court.
Could that determination really be unequivocal, even by the standards of the Israeli justice system?
Israel proclaims that Palestinians can challenge their detention before its highest court, but that review process is so flawed, it has little value beyond the chance it offers lawyers to push the government to compromise—in this case, to remove al-Qeeq's shackles while keeping him in custody. The court will uphold an order if security officials produce evidence of danger. Such evidence can include accusations from paid informants who do not appear in court, confessions by other detainees, or even the involvement of a detainee's family members in armed activity.
The evidence is presented in a closed-door hearing attended only by judges and state officials. Judges are supposed to cross-examine the evidence, playing the role of defense lawyer on behalf of the detainee, who is not allowed to know the claims against him. In my experience, however, the judges' role is generally passive. They are presented with binders, sometimes thick and sometimes thin, containing warnings by senior security officials of the harm that would befall the State of Israel and its citizens if the petitioner were released. To order release would be to take responsibility for defying those warnings. Since 1967 the Supreme Court has canceled just one such order against a Palestinian.
As a court clerk, I assisted in or attended dozens of hearings in which secret evidence was presented. The procedure was routine: the petitioner's lawyers would argue his or her case and then leave the room. After five or 10 minutes, they would return to hear the judges recommend that they withdraw the petition.
Once during a particularly long morning of hearings, the presiding judge surprised me by asking me to remain in the courtroom during the closed door phase, even though I did not have security clearance. She explained that it would be faster if I stayed, so that I could call the petitioner's lawyers back into the room more quickly.
I sat at my clerk's post while two intelligence agents dressed in button-down shirts and khaki pants approached the bench with three binders, one for each judge. The judges flipped through the binders. The presiding judge asked whether the information was current. The agent said yes. The hearing ended, and the judges rejected the petition.
Even if the judges played a more active role this time, how could a hearing held without Al-Qeeq or his lawyer possibly lead Rubinstein to conclude that he is "unequivocally" a terrorist?
Al-Qeeq is due to be released on May 21, after his hunger strike put pressure on the Israeli authorities, who feared a strong reaction if he were to die. The Israeli Supreme Court maintained its role of watching, reviewing, but not really intervening.
The Oslo Times