Habeas Corpus for Palestinians?

Libby Lenkinski talks about the injustice of administrative detention in the West Bank, but ultimately, she says, it's not the detention that's the problem, it's the entirety of what she calls a "military injustice system."

This week, the topic of the Palestinian hunger strike again made headlines. This issue first came up in social and mainstream media in the recent case of Khader Adnan—and was followed with a second hunger striking Palestinian prisoner, a woman named Hanna Shalabi. Both Adnan and Shalabi planned to bring themselves to nearly fatal starvation in protest of being held in administrative detention by Israel and mistreated during arrest. Over the past months since these two high-profile cases, the Palestinian hunger strike has grown by leaps and bounds. The New York Times reported a figure of 1500, with the promise of more prisoners joining if Israel does not change its policy.

In both Adnan and Shalabi’s cases, Israeli human rights organizations sounded the alarms, demanding that hunger striking and all other Palestinian administrative detainees be released or given fair trial. The Association for Civil Rights in Israel (ACRI) sent an urgent letter to Defense Minister Ehud Barak in which it details the violations of human rights—namely the right to fair trial violated by the practice, and called for release or fair trial. The painful fact is that while administrative detention violates human rights, fair trial is simply not available to Palestinians in the Israeli military courts. There is no real life alternative to that does provide justice and due process to Palestinians.

Administrative detention allows people to be held for months without trial, meaning that they do not have the ability to defend themselves in a court of law or be acquitted. While administrative detainees’ cases are in fact reviewed by a judge, they are often based mostly or solely on secret evidence which again precludes the possibility of mounting a defense. Israel has at times held over 1,000 Palestinians under administrative detention at a time and today there are over 300 prisoners being held in detention without trial.

Justifying the use of secret evidence and administrative detention to control security threats to the State makes sense but it requires a transparent and narrow definition of security threats. Presently the reality in the West Bank is that an extremely high proportion of Palestinian men have at one point or another been held in administrative detention. Many of them have never known what security threat they posed but feel certain that it involves their political activism and nothing more.

Calling to end the unjust practice of administrative detention is really just the first step. And making the theoretical demand that Palestinians be given fair trials is a necessary second step. But if what we are seeking is due process and justice for all, then it is time to acknowledge that no such possibility exists for Palestinians and call the military justice system what it is—a military Injustice system, and a product of the occupation.

The incredible problems with the military justice system where Palestinians are tried have been documented ad nauseum by Israeli and international human rights organizations that work in the Occupied Territories. According to a report by human rights organization Yesh Din, Palestinians are found innocent in less than 1% of the cases that take place in Israeli military courts, and the vast majority of cases end with a plea bargain. The same report provides an analysis of the specific problems with due process in the military courts—from the lack of commitment to the principle of presumption of innocence, to lack of translation of the hearings into Arabic.

The Yesh Din report also offers recommendations for improving each. Perhaps if these recommendations were immediately applied, Palestinians would have a greater chance of having a fair trial. But even in this hypothetical situation of improved conditions, one is still left wondering if the military courts could ever provide a fair trial to Palestinians.

Some argue that these policies and practices just evolved over time with the occupation. One poignant moment from the award-winning documentary The Law in These Parts offers a different perspective. While describing the first years of the Occupation, Retired Brigadier General Dov Shefi (Legal Advisor, West Bank Military Command 1967-1968) describes the mentality as favoring order over justice. He describes the various ways in which the Israeli authorities made clear to the population in the West Bank that there was a new regime in charge. He says “we came in to make order—and order and justice do not always go hand in hand.” The intention of the military orders and evolving military justice system was never to provide justice to Palestinians—it was to create order imposed by the occupying power.

Administrative detention isn’t really the problem, since the kind of trials that people are having are farcical. The call to end this practice is both justified and moral but the conclusion—the call for administrative detainees to be given a fair trial—is rhetorical and theoretical. Where do we expect them to receive this fair trial? Certainly not in the military justice system.