by Rym Laoufi (Université de Montréal)
Administrative detention is a preventive tool used by a large number of States in their fight against terrorism. The extent and form of these detentions differ from one State to another. The most controversial and right infringing use of administrative detention is probably portrayed by the worldly known Guantanamo Bay. However, this type of detention can also be seen in less contested circumstances, such as detentions based on the application of immigration laws. The geopolitical context in which the State of Israel evolves made it a reference in the use of administrative detention. In order to fight terrorism, Israel has developed three administrative detention regimes. The first one is governed by the Emergency Powers (Detention) Law and applies to the Israeli territories. The second, in force in the West Bank and Gaza strip, is shaped by various military orders. Finally, the last one emerged with the adoption of the Incarceration of Unlawful Combatants Law and applies to foreigners suspected of representing a threat to national security. These detentions all revolve around a potential threat, personified by the detainee, combined with severely reduced procedural safeguards in order to facilitate the detention. Detentions made under any of the three schemes, mentioned above, are subject to judicial review. However, some doubts have been raised about the ability of the review process to meet its purpose. Indeed, the Israeli Supreme Court, usually described as very interventionist, seems reluctant to interfere with questions related to the use of administrative detentions. This judicial deference combined with ex parte hearings, with wide spread use of secret evidence and cases where the detainee might never have the chance to meet a lawyer before the actual hearing make us question the effectivity of the review process. Administrative detention therefore becomes an illustration of the impediments met by courts while trying to find an always fluctuating balance between national security imperatives and the fundamental rights they were made to protect.
Working Paper: RymLaoufi - DétentionsISRAEL (in French only)
Citation : Rym Laoufi, « Mieux vaut prévenir que guérir! Israël et l’usage de la détention administrative comme outil de lutte contre le terrorisme », Document de travail n°9, OSN, 2016.
This content has been updated on 7 February 2017 at 12 h 57 min.