Palestinian prisoners and Israel’s unlawful administrative detention policy

150 Palestinian prisoners are being released as part of Israel and Hamas’s recent hostage deal. But thousands more remain behind bars.

Two Israeli soldiers are photographed from behind as they hold a young Palestinian boy by his arms before detaining him.

Israeli soldiers apprehend a young Palestinian boy in the West Bank town of Hebron on June 20, 2014. Thomas Coex/AFP/Getty Images Abdallah Fayyad is a correspondent at Vox, where he covers the impacts of social and economic policies. He previously served on the Boston Globe editorial board.

On October 12, in the West Bank village of Wadi al-Seeq, Israeli soldiers and settlers detained three Palestinians and spent hours abusing them. The Israeli newspaper Haaretz reported that the Israelis stripped the detainees down to their underwear, blindfolded and photographed them, beat them with knives and an iron pipe, put out cigarettes on their bodies, and even urinated on them. One of the detainees described the experience as “Abu Ghraib with the [Israeli] army.”

The Israeli military said that it is investigating the incident, but that horrifying account did not occur in a vacuum. Since Hamas attacked Israel on October 7, Palestinians in the West Bank have been victimized by a surge in violence perpetrated by both Israeli soldiers and settlers.

One of the major sources of that escalation is a tool of repression that Israel has long deployed against Palestinians and has used even more aggressively in recent weeks: administrative detention, a practice that allows Israel to jail Palestinians indefinitely without charge or trial.

[Related: Everything you need to know about Israel-Palestine]

The three Palestinians who were abused in Wadi al-Seeq were released on the same day they were detained and subsequently sent to the hospital. But many of Israel’s detainees get locked up for months, or even years, without ever being charged with a crime.

And while Israel argues that this is a lawful preventative security measure — allowing it to target people for a range of political activity, including speech and nonviolent protest — human rights groups have deemed Israel’s use of administrative detention a blatant violation of international law.

Even beyond administrative detention, when charges are brought against Palestinians in the West Bank, they are almost always tried in military courts that have a near-perfect conviction rate. (By contrast, Israelis are usually tried in civil court.) Palestinians, in other words, are sent to a trapdoor instead of a fair trial.

The result is that today, thousands of Palestinians, including hundreds of children, are held in Israeli custody on murky legal grounds — a problem that’s only gotten worse in recent years. Some human rights organizations have called out Israel’s military-imposed legal system in the West Bank as evidence that Israel is committing the crime of persecution, intentionally depriving Palestinians of their fundamental rights because of their ethnic identity.

That’s why, even well before this war, the release of these prisoners has been a key Palestinian demand in negotiations with Israel. And just this week, Israel agreed to a deal where Hamas will return 50 hostages in exchange for 150 Palestinian prisoners and a brief pause in Israel’s bombardment in Gaza.

Imprisoned without charge or trial

Before October 7, the number of Palestinians held by Israel under administrative detention was already at a 20-year high. According to the Israeli human rights organization B’Tselem, there were 1,310 Palestinians imprisoned without charge or trial at the end of September, including at least 146 minors. Since then, Israel has dramatically increased its use of administrative detention, pushing the number of detainees to over 2,000 within the first four weeks of the war. (That’s out of a total of roughly 7,000 Palestinian prisoners.)

“While this is not completely prohibited under international law, the use of administrative detention is only permitted in exceptional circumstances and subject to stringent safeguards,” Elizabeth Rghebi, the Middle East and North Africa advocacy director at Amnesty International USA, told me.

Israel contends that it has the right to circumvent certain international obligations in the West Bank, saying that it’s not part of Israel’s sovereign territory and therefore subject to military laws that can restrict people’s civil rights. But watchdog groups, including the United Nations Human Rights Committee, argue that as the occupying power, Israel must respect human rights in Palestinian territories — especially as the occupation grows older and more entrenched.

And before the war, Israel was not, by and large, deploying this tool lawfully. “Amnesty has found that Israel’s systematic use of administrative detention against Palestinians indicates that it’s used to persecute Palestinians rather than as an extraordinary and selectively used preventative measure,” Rghebi said.

Israel maintains that it detains people because of legitimate security concerns, such as potential participation in violent attacks. But while there is a thin veneer of due process — Palestinians can appeal their detention orders, for example — the reality is that a stunningly low number of appeals succeed, in no small part because as both local and international human rights groups have documented, neither the detainees nor their lawyers are told what evidence Israel has against them. (According to B’Tselem, Israeli military courts only nullified 1.2 percent of detention orders issued between 2015 and 2017, and an investigation by Haaretz found that as of August, not a single detention order had been canceled this year.)

“Evidence has shown that [administrative detention] is a pretext to persecute and deprive people of their fundamental rights and freedoms because they challenge the Israeli military occupation,” Rghebi said.

In 2022, Amnesty International released a comprehensive report pointing to the practice of administrative detention as just one example of how the Israeli state subjugates Palestinians and cracks down on dissent. Since 1967, Israel has issued over 1,000 military orders that criminalize a range of activities in Palestinians’ daily lives, including waving political symbols like flags, being in certain areas without permits, and any kind of speech activity that can fit into a loosely defined charge of “incitement.” Citing decades of evidence, the Amnesty report outlined an “intentional Israeli policy to detain individuals, including prisoners of conscience, solely for the non-violent exercise of their right to freedom of expression and association, and punish them for their views.”

Indeed, over the years, Israel has detained hundreds of people, including dozens of journalists, for security concerns that amounted to nothing more than social media posts. And since October 7, Israeli forces have been aggressively policing what Palestinians are saying online. Tala Naser, a lawyer at the Palestinian prisoner and human rights organization Addameer, told me that even social media posts that merely include Palestinian flags or quotes from the Quran are being targeted by Israel as sources of incitement.

A conviction rate too good to be true

Not all Palestinian prisoners are held under administrative detention. In fact, before the latest war started, there were roughly 5,000 Palestinians held in Israeli custody, and about 1,300 of them were under administrative detention. Thousands of others are serving sentences because unlike administrative detainees, they actually were charged with a crime and convicted.

On the surface, those convictions might make those cases of imprisonment seem more legitimate. But dig a little deeper and you find a legal system that’s riddled with unjust practices that all but guarantee a guilty verdict. According to the Israeli government’s own data, a whopping 99.7 percent of cases that went through Israeli military courts in 2010 ended in a conviction. “There’s no fair trial guarantees in these courts,” Naser, the prisoner rights attorney, said.

Palestinians are routinely denied counsel, for example, and faced with language barriers and mistranslations that taint testimonies and confessions used in court. But it’s not only a lack of due process that plagues this legal system. Oftentimes, these cases are based on specious and far-reaching charges.

Take, for example, the case of Nariman Tamimi, who was targeted because of a Facebook livestream. Military prosecutors indicted her in 2018 on account of trying to influence public opinion “in a manner that may harm public order and safety,” as well as allegedly calling for violence. But Human Rights Watch, which reviewed the case and evidence in question, said that “nowhere in the video or case file does Nariman call for violence.” Still, Tamimi pleaded guilty and told Human Rights Watch that she did so in order to avoid a longer prison sentence. (Tamimi’s daughter, Ahed Tamimi, who was put under administrative detention when she was 16 years old, was again detained earlier this month for “inciting terrorism.”)

Systematically denying people their right to a fair trial is a violation of international law, and Tamimi’s experience mirrors countless others, including children who receive the same treatment as adults. Israel, after all, is the only country that routinely puts children on trial in military courts, and it even established the “first and only juvenile military court in operation in the world,” according to a report by the United Nations.

All of this points to sham trials being a feature of Israel’s military court system, not a bug.

Incidents of torture

Israel has a long history of torturing Palestinian prisoners. In 1999, the Israeli Supreme Court reviewed various methods of torture used by Israeli agencies and issued a ruling outlawing them. An Israeli government report released the following year not only admitted to the systematic use of torture against Palestinians during the First Intifada but also found that law-enforcement agencies had lied to cover it up.

Yet more than two decades later, Palestinian detainees and prisoners still report being subject to torture and other types of humiliating and inhumane treatment, as in the case of the three Palestinians detained in Wadi al-Seeq last month. And despite its 1999 ruling, the Israeli Supreme Court has repeatedly allowed for torture to continue under certain circumstances.

Since October 7, there has been a spike in reports of abuse and ill-treatment of Palestinian detainees and prisoners. Qadura Fares, the head of the Palestinian Authority Commission for Prisoners’ Affairs, told Reuters that at least four Palestinians have died while being held in Israeli custody, adding that their autopsies revealed evidence of torture and medical neglect.

These harsh conditions were widespread before the war, and even children held in detention have been subject to ill-treatment, physical abuse, solitary confinement, and more. Such practices not only point to more evidence of the unlawful nature of Israel’s detention policies but also give more weight to the growing calls on Israel to release Palestinian prisoners.

What will happen to Palestinian prisoners?

After Hamas’s October 7 attack, in which roughly 1,200 Israelis were killed, the world’s attention turned to the over 200 Israeli hostages who were captured that day and how they could be safely returned to their families.

But as Israel geared up for its subsequent military assault on Gaza, the fates of the thousands of Palestinian prisoners illegally detained by Israel were notably missing from many conversations about how Israel could secure the hostages’ release — a critical omission because those prisoners, which include hundreds of children, are key to at least one potential diplomatic resolution: a prisoner swap.

As the recent deal between Israel and Hamas shows, this was neither a fringe idea nor an unrealistic proposal. In fact, Israel has engaged in these kinds of exchanges many times before, and thousands of Palestinian prisoners have been released as a result of such deals over the years. In 2011, for example, 1,027 Palestinians were let out of prison in exchange for one Israeli soldier held hostage by Hamas.

These kinds of resolutions aren’t exclusive to the region. Time after time, governments seeking to rescue their citizens from being held hostage will insist on not engaging with the captors. Americans, for example, are very familiar with the phrase “We don’t negotiate with terrorists.” But even in the United States, no matter how much chest-thumping there is at the start of a hostage crisis, it almost always ends in paying the captors’ ransom — be it by agreeing to a prisoner swap or releasing a large sum of money.

In Israel’s case, even some of the families of the Israeli hostages have for weeks been pushing Israeli Prime Minister Benjamin Netanyahu to agree to a diplomatic exchange of detainees. They summed up the proposed deal in three words: everyone for everyone — a demand that Netanyahu has so far rebuffed.

But 47 days into the war, which has now killed over 14,000 Palestinians, including more than 5,800 children, it’s clear that Israel’s illegal detention of Palestinians has become a more pressing issue than ever. And how Israel chooses to address it might well determine how this war ends.


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