Holding Pattern


Deheishe Refugee Camp, West Bank—On November 22, 2002, in the small hours of the morning, Muhammed el-Najar, then 15, was arrested at his home here in the Deheishe refugee camp, a few miles south of Bethlehem. His parents say the Israeli soldiers, their faces painted with camouflage, ordered the family with all seven children, even a two-year-old, into their small yard with its chicken coop and vegetable garden, before taking away both Muhammed and his 17-year-old brother, Mahmoud. They have not seen Muhammed since and have heard little about him from his lawyer.

Mahmoud was eventually charged with attempted murder, belonging to an illegal organization, throwing stones, and writing slogans. His trial has been postponed. Muhammed may not be even that lucky. He is an administrative detainee, held indefinitely in a military prison, on order from a colonel or brigadier general, because of secret evidence that allegedly proves him to be a security threat to Israel.

Currently there are about 1,000 administrative detainees—or as some call them, political prisoners—out of over 6,000 Palestinians in Israeli prisons. According to Israeli human rights organization B’Tselem, the number of administrative detainees has increased dramatically since Israel’s Operation Defensive Shield began in March 2002.

The situation of Palestinian prisoners was not referred to in the U.S. “road map,” but they have nonetheless become a key issue in the limping peace process. The hudna, or cease-fire, signed in July by the three major Palestinian militant groups, Hamas, Islamic Jihad, and the Al Aqsa Martyrs Brigade, named the release of prisoners as the first of four demands. This is not surprising, because the hudna itself was partially negotiated from a military prison by Fatah leader Marwan Barghouti. On August 6, the Israeli government released 334 prisoners, around half of whom were administrative detainees; the step was instantly described by Yasir Arafat as “an act of fraud and deceit,” and it was followed by several days of violence from the Lebanese group Hezbollah. And another cycle of violence followed. By August 19, a major bus bombing in Jerusalem had effectively ended the hudna.

The Israeli Defense Forces (IDF) could provide no statistics on how many administrative detainees would be considered juveniles under both international and Israeli civilian law, because a military order treats Palestinians 16 years and older as adults. According to Defence for Children International-Palestine (DCI), an NGO that provides legal assistance in a majority of such cases, Muhammed is one of at least 30 youngsters under 18 currently held in administrative detention, up from only two or three in 2001. The total number of Palestinian juveniles in custody fluctuates (because many are arrested and released without any charges) but is over 300. Only 13 juveniles were on the list of recently released prisoners, and only four of those were administrative detainees. Neither Muhammed nor his brother was on the list.

“The goal of administrative detention is to put people away who are dangerous to public order and safety,” says a military official. “It’s a preventative measure that’s done because of the danger the people present. As a rule we are interested in putting people on trial, rather than detaining them. But if we have information not divulgeable in court that someone is about to blow himself up as a suicide bomber . . . this may seem like an extreme example, but we have examples of those types of cases.” Administrative detainees are not accused of any crime. Sometimes the file available to their lawyers contains only one sentence: “This person is dangerous to the security of the nation.”

In Muhammed’s case, the released materials are more extensive. “There is a lot of open material, and I have the feeling that the secret material is just a repetition of the open material,” says his Israeli lawyer, Tamar Pelleg-Sryck. She works for HaMoked, the Center for the Defense of the Individual, an Israeli human rights organization, and has been defending Palestinians in court since 1988. As an Israeli, she can visit her clients in Israeli prisons where Palestinian lawyers—and arrestees’ families—can’t go, and she can petition their cases to the Supreme Court.

“It’s enough that a child of 15 says to somebody who informs on him, ‘I would like to bomb,’ ” Pelleg-Sryck says of el-Najar. “He denies saying it, but let’s assume that he did. Muhammed said to this person, a military activist, ‘Maybe you can find somebody to help me. I would like to perform a suicide bombing.’ Nothing ever came of it. The guy he spoke to was arrested and gave 20 to 30 names of people involved in such activities. Then the police said, ‘What do you know about Muhammed So-and-so?’ ‘Oh, Muhammed So-and-so! He told me this . . . ‘ ”

The suspicions directed at Palestinians born since the first intifada began in 1987 have an unavoidable basis in fact. According to Israeli research, the average age of suicide bombers has declined slightly since the 1990s, from 22 to 20 or 21; some are as young as 16. On June 26, a 15-year-old Palestinian shot and killed an Israeli telephone company employee in a village close to the West Bank; the Al Aqsa Martyrs Brigade was reported to have claimed responsibility for the attack. In response to this perceived threat, arrests of youths have gone up during the current intifada, according to DCI, whose caseload has risen from 89 in 1998 to 750 in 2002.

Muhammed was taken to one of about 10 temporary detention centers, which are located either within Israel on military bases or in Jewish settlements in the occupied territories; wherever they are, visits by families are difficult or impossible, depending on whether the visitors hold Israeli identification. Since the beginning of Operation Defensive Shield, the centers have been woefully overcrowded, with inadequate food and inmates sharing mattresses and blankets. Arrestees are interrogated, sometimes by soldiers and sometimes in separate interrogation centers, by members of Shin Bet, the security forces. According to NGO monitors, arrestees are often beaten or otherwise abused. A 14-year-old who was arrested in February 2003 while throwing stones showed the Voice marks on his back that he said were from a beating with an M-16 rifle, and said he was held for a few hours in a cage in the street of a Jewish settlement.

Muhammed did not report being beaten. He was hardly questioned at the center, only enough to hear and deny the charges against him. Being only 15 at the time of his arrest, he was segregated from the other inmates at the center per IDF regulations. In a practice that has since stopped due to the work of HaMoked and others, he was held in solitary confinement for 45 consecutive days.

The procedures governing the IDF’s “civil administration” of the Palestinian territories are difficult to master, and often inconsistent with international law. Detainees like Muhammed are not guaranteed lawyers by the court, though in most cases DCI or another organization can provide one. A first hearing, called a judicial review, comes within 18 days after arrest. Officials say the judge is presented with the secret information and the order calling for the period of detention, which may be three, four, or six months. The defense lawyer, armed with the open file, containing a sworn affidavit by the prisoner and sometimes statements by others, appears in judges’ chambers and plays a kind of guessing game, trying to determine the nature of the charges against her client. Then, before the full court, the lawyer mounts her defense, calling the client and character witnesses, asking for the order to be rejected, or more likely, for the term to be shortened. Before March 2002, Shin Bet used to appear in court to present its secret evidence and be cross-examined, but now it must be specially called in, and rarely is.

“My work in the military court is limited. It’s like a market,” says DCI’s lawyer Khaled Quzmar of the bargaining he does in court, trying to get sentences reduced. “In the court, there is no law. Only military orders.” And although Israel has ratified the UN Convention on the Rights of the Child (CRC), military orders and security concerns tend to trump civil rights law. “When I talk to the judge about the child convention or about international standards,” Quzmar says, “he is not interested in the legal situation, but only in the local situation.”

The international standards most often invoked by critics of administrative detention are the Geneva Conventions, which forbid transport of prisoners out of occupied territory (i.e., from Palestine into Israel), and UN human rights laws, which say that preventive detention may be used only against individuals who pose an imminent threat; the very numbers of detainees would seem to argue that this condition is flouted. In the case of juveniles, there is of course another set of concerns. Besides documenting abuses—nearly all of their juvenile clients report some form of abuse ranging from beating to confinement in one position for hours—DCI and groups like B’Tselem focus on the denial to children in detention of basic services guaranteed by the CRC: family visits, regular access to lawyers and educational services, and especially the right of children to not be housed alongside adult criminals. “What is striking is that in all these cases there is no consideration for the emotional, social, or educational needs of a minor,” Pelleg-Sryck says. “A minor is considered to be dangerous, and they don’t care if he is a minor. During the session with Muhammed, they said, ‘He is dangerous.’ ‘What if he had been eight years old?’ I said, ‘Doesn’t matter. He is dangerous.’ This was a reserve judge [a military reservist serving as a judge], a real humanist. I joked with him and said, ‘What if he was three months old?’ ”

Most administrative detention orders are approved, says the military official the Voice talked with, “because our people do their jobs in making sure the evidence warrants it.” Most such decisions are also appealed by the defense, and they may be appealed even to Israel’s High Court of Justice, the civilian supreme court. “The judges are in a very difficult position,” says Pelleg-Sryck. “Of course there are judges who would never release a Palestinian, but some are even humanists and would like to reduce the sentence. But they can’t because they received some pieces of paper, and they say, ‘If Shabak [Shin Bet] says this guy is dangerous, what can I do?’ ” Lawyers such as Pelleg-Sryck and Quzmar find themselves cooperating with existing procedures to protect their clients even while arguing against the legality of the entire system.

Muhammed was eventually transferred from the temporary detention center to Ketziot prison, where most of the juvenile administrative detainees are currently held. Ketziot, like other military prisons in Israel, is a camp where people sleep in large tents. There are two showers and four toilets per 120 prisoners, according to DCI. It is located in Israel’s hottest and least populated region, the Negev Desert. “We try to hold administrative detainees separately,” says the military official. “They are not prisoners of war. They are subject to regulations specific to all prisons. Administrative detainees are given extra rights because of the nature of their detention—more visitation rights, more cigarettes.” Visitation, for those detainees whose families are lucky enough to have Jerusalem identification enabling them to travel in Israel, takes place once a month for half an hour, according to DCI, and even then, families and prisoners have to yell over a concrete-and-wire fence.

But David Brinn, a music critic at the Jerusalem Post who worked at Ofer military prison for 12 years during his annual three-week military reserve duty, says, “I think the Israeli officials bend over backwards to be fair to prisoners. I never saw one case of abuse. The conditions are as if for a prisoner of war.” He described teenagers’ serving food and listening obediently to the prisoners’ leaders, who would hold lectures on Palestinian militant ideology. “It seemed like a great breeding ground for terrorism, all those 16- and 17-year-olds with the military activists,” he said.

It is hard not to see a cycle in motion here. Meanwhile, Muhammed’s initial six-month term of detention was renewed in June. His family holds on to the hope that their son could be restored to them as suddenly as he was taken.

“When you came today,” his mother, Samiya, told the Voice through an interpreter, “I thought there was a small chance you might bring him with you, as a surprise.”

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