Administrative detention: The Military Court of Appeals sustained in part the army’s appeal of the decision of the military judge at the military court in Ofer Prison to nullify the order administratively detaining a resident of Budrus. The lower court judge found that the order had been issued only because of the resident’s activity against construction of the separation wall. Basing his decision on the same confidential material that was in the lower court’s file, the appellate judge held that there was also other information that justified administrative detention, though for a shorter period of time than set forth in the military commander’s order

The battle of Budrus residents against the separation wall
The separation wall passes through the area of Budrus, a village located west of Ramallah, and separates the residents from their farmland. The route was set after the residents had successfully fought to change the original planned route. The Israeli authorities moved the wall closer to the Green Line, but the present route, too, steals the residents’ land. Moreover, there is no security, topographic, or engineering reason why the wall cannot be moved to the Green Line. The residents, represented by the Association for Civil Rights in Israel, petitioned the High Court of Justice to change the route. The HCJ has not yet rendered its decision. However, on 28 October 2004, it temporarily enjoined the state from uprooting, moving, or preventing access to fruit trees belonging to village residents, until the next court hearing in the matter. 

The Order Regarding Administrative Detention permits the military commander to detain persons for a prolonged period without trial, without revealing the reason for the detention and without disclosing the evidence on which the detention is based. Thus, the order infringes the detainee’s fundamental rights. The confidential evidence makes it impossible for the detainee to defend himself. Also, the military commander is able to renew the order time after time. As a result, the detainee can be held indefinitely. Because of the severe infringement of the right to due process inherent in administrative detention, international law set rigid limitations on its use: an order for administrative detention is to be issued only when necessary to meet a real and necessary security need, and in exceptional cases.

In a hearing held on 1 November in the military court, the prosecution requested approval of the administrative detention order, for the period set forth in the order, based on confidential material not made available to defense counsel. Despite the confidentiality, the transcript of the hearing, held in the presence of the prosecution and defense, indicates that the prosecution did not contend that Awad took part in violent activity. Apparently, the only basis for the detention was that Awad was among the organizers of the battle against the wall in Budrus.  The affidavit of another resident of the village, who joined Awad in protesting against the wall, was offered into evidence. According to the affidavit, Awad opposed, as a matter of principle, the use of violence in opposing the wall. The affidavit reinforced the comments of Awad himself, who testified that he insisted that the demonstrations be non-violent. It seems, therefore, that there was no real basis for issuing the administrative detention order.

After studying the confidential material, the judge, Captain Adrian Agassi, concluded that the basis for the administrative detention was Awad’s extensive activity against the separation wall. The judge added that, “I have previously held that the military commander cannot exercise his authority to order the administrative detention of an individual only because of activity of this kind.” Thus, the court nullified the order, delaying execution of the decision for 48 hours to enable the prosecution to appeal.

On 4 November, the appeal was heard before the Military Court of Appeals. Counsel for Awad, from HaMoked: Center for the Defence of the Individual, pointed out that the administrative detention of her client would increase his frustration with the Israeli authorities and diminish his hope that Israel recognize the legitimacy of his non-violent activity. The defense counsel also mentioned that two other members of the village committee, who participated in the protest activity against the wall, had been released following court action.

In his decision, the appellate judge, Col. Moshe Tirosh, stated that protest activity that is non-violent cannot be the basis for administrative detention in a properly-functioning state. However, based on his study of the same confidential material that was presented to the lower court, he held, as noted above, that there was other information, unrelated to protest against the wall, against the detainee that justified the administrative detention. Nevertheless, the judge decided to reduce the period of detention from four months to two months, on the grounds that the amount and severity of the information was disproportionate to the length of the detention set forth in the military commander’s order. 

For the transcript of the hearing and decision of the lower court, click here.

For the transcript of the hearing and decision of the Military Court of Appeals, click here.