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Khader Adnan: Administratively Detained Yet Again

Monday, 19 January 2015 15:25 - [5-11 January]
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 Since 1967, more than 800,000 Palestinians have been tried by Israeli military courts in the Occupied Palestinian Territory (OPT), constituting about 20% of the total population. Palestinians from the OPT are currently held in a total of four interrogation centers, four military detention centers, and approximately 17 prisons. Khader Adnan Mousa, 36, was sentenced earlier this month to a second 6-month period of administrative detention. In 2012, Khader made headlines with a 66-day hunger strike that put him at grave risk of death. Although released months after the hunger strike, he was re-arrested in August 2014.

Khader Adnan Mousa – Araaba – Jenin

khader-adnan-giving-sspeachOn 6 January 2015, Khader Adnan, 36, was informed that his administrative detention will be renewed for a second term. Khader, who is married and a father of six children, was arrested on 7 August 2014 near a flying checkpoint on the Jenin-Nablus Street near Araaba. On 14 August 2014, he was sentenced to six months of administrative detention without charge. The detention was set to end on 7 January 2014. However, on 6 January, Israeli Prison Service (IPS) informed Khader that his administrative detention was renewed for another six months without providing further reasons.

Following his arrest, Khader was brought before the Salem Israeli Military Court on three occasions. The first hearing was for review of the order, which was confirmed. The second two hearings concerned evidence provided by the Israeli Security Agency (ISA), based on "secret information" from two unknown witnesses. The ISA failed to provide further evidence and the judge dropped the case. Although the judge determined, on 11 December 2012, that Khader was innocent of what the ISA had accused him of, Khader, under Israeli military law, had to remain in administrative detention until the end of his sentence in January. 

Lawyer, Muhammad al-Madani, was able to visit Hadarim prison on 6 January 2014, where Khader is currently located. Al-Madani was told that Khader was moved to solitary confinement on 6 January as a result of starting a hunger strike to demand his release.

Randa Mousa, 35, Khader’s wife, has not been permitted to visit him since his arrest in August. Only her two daughters, Maali, 6, and Besan, 4, were able to visit their father twice. Randa and her children have suffered severe psychological distress since Khader’s arrest. (Al-Haq Affidavit No. 103348/2015).

Al-Haq has learned from contacting the family and Palestinian Prisoners Society in the city of Jenin, that Khader suspended his hunger strike on Tuesday 13 January 2015 and was removed from solitary confinement. However, he has since threatened to resume his hunger strike, if he does not appear in front of the appeals court to shorten his sentence to four months instead of six months. He also demands that the Israeli High Court rules that his initial order cannot be renewed.

 

Administrative Detention Procedure

After a Palestinian is arrested by the IOF, Israeli military commanders may issue an administrative detention order lasting between one to six months. Within 8 days of an individual’s arrest, they must be brought before a military court judge who confirms or denies the order in a closed hearing.

At the hearing, the Israeli Security Agency may provide “secret evidence” to the court, which the detainee and his lawyer are not permitted to see. The military judge can approve, shorten or cancel the administrative detention order. The order is often approved without change. After the end of the initial detention period, the order can be renewed for another term of up to six months. The initial detention order can be renewed indefinitely. Each time the order is renewed, the detainee will be brought before a judge.

While the detainee has the right to appeal the decision before the Administrative Detainees Appeals Court, the detainee and his lawyer may still not have access to the file, including the specific charges and evidence against the detainee, on which the administrative order was based.

 

Legal Analysis

Al-Haq condemns the illegal renewal of Khader’s administrative detention. Israel’s use of administrative detention is in clear contravention to international human rights law (IHRL) and international humanitarian law (IHL).

Administrative detention deprives the detainee the right to liberty and the rights to due process and fair trial. While the International Covenant on Civil and Political Rights (ICCPR) does permit derogations from the Covenant during a state of emergency, “measures…must be of an exceptional and temporary nature”[1] and must be “strictly required by the exigencies of the situation.”[2] Accordingly, while there may be a derogation of Article 9 on the right to liberty and security of person, it must be consistent with international humanitarian law and non-discriminatory.[3] In the West Bank, Palestinians are charged under Israeli military and security law applicable in the occupied territories while Jewish settlers are charged under Israeli civilian law.[4]

In its latest review of Israel, the Human Rights Committee recommended that Israel “end the practice of administrative detention and the use of secret evidence in administrative detention proceedings, and ensure that individuals subject to administrative detention orders are either promptly charged with a criminal offence, or released.”

Similarly, there may not be derogations from fair trial guarantees explicit under international humanitarian law during armed conflict, such as the presumption of innocence and the “right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detentions”.[5] Under Article 78 of the Fourth Geneva Convention, protected persons may only be detained for “imperative reasons of security.” Through employing a continuous ‘state of emergency’, Israel attempts to justify its widespread use of administrative detentions while disregarding that it should be exceptionally used under international law.

It should be also noted that Khader is currently being held in administrative detention in Israel, at Hadarim prison. All four interrogation centers and 16 of the 17 prisons are located within the borders of Israel, a violation of Articles 49 and 76 of the Fourth Geneva Convention which prohibit the transfer of prisoners outside the occupied territory.



[1] Human Rights Committee, General Comment 29, States of Emergency (article 4),  CCPR/C/21/Rev.1/Add.11 (2001), para. 2

[2] Id. para. 4

[3] Advanced Unedited Version of General Comment 35, Article 9: Liberty and security of person, CCPR/C/GC/35. 28 October 2014, Para. 65

[4] Israel uses three set of laws to hold individuals without trial in the OPT. First, in the West Bank Article 285 of Military Order No 1657 applies. Second, in the Gaza Strip, Israel has been using the Internment of Unlawful Combatants Law since 2005. Third law, which applies to Israeli citizens and settlers, is the Emergency Powers (Detentions) Law.

[5] OHCHR. “CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency”. 31 August 2001.