Global Administrative Detention Report

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THE USE OF ADMINISTRATIVE DETENTION AROUND THE WORLD

Administrative detention is a procedure that allows for the arrest and detention of individuals by the state without charge or trial, usually for alleged “security reasons.” Administrative detention is commonly defined as detention that occurs under executive authority, where an administrative, military or ministerial authority has sole control over detention orders, even if a judicial appeal process exists.[1]

Also referred to as “preventive detention” or “internment,” administrative detention is often ordered, not as a punishment for past acts, but ostensibly in order to prevent future violations of the law. In many cases, orders of administrative detention can be renewed indefinitely without the need to bring any evidence or hold a trial. Detainees are typically held in the custody of the military or intelligence services.

Indefinite administrative detention – currently enshrined in Israeli, American, Australian, Jordanian, British, Malaysian, and Singaporean law – is against international law, which stipulates that administrative detention can only take place in emergency cases of real and immediate threats to State security, which can by definition not be indefinite.[2]

Administrative detention also alters the basic legal procedures for detainees established in the International Covenant of Civil and Political Rights, amongst other international treaties. It denies detainees of the right to be informed, at the time of arrest, of the reasons for that arrest, as well as the right to be promptly informed of any charges brought against the detainee.[3] It also undermines the presumption of innocence and the right to silence and denies access to a fair trial, undermining the basic human rights of detainees and their families.

In practice, a large number of both democratic and antidemocratic countries resort to administrative detention as a means to combat “terrorism,” control immigration, protect the ruling regime, or a combination thereof.

In many cases, administrative detainees, including children, report having been subject to torture and ill treatment such as beatings, prolonged interrogations, and sleep deprivation. These are all in breach of the UN Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment.

It is likely that many countries practice some forms of administrative detention on an extremely limited and, in many cases, illegal basis. This report provides an overview of systematic – and, in almost all cases, legalized – practices of administrative detention in twenty-two countries, offering limited comparison throughout between the administrative detention practiced by Israel and that practiced by other governments.

ISRAEL

Palestinians have been subject to administrative detention since the beginning of the Israeli Occupation in 1967 and, before that, under the British Mandate and under Israeli laws issued between 1948 and 1967. Currently, administrative detainees are held without charge or trial on secret information that neither they nor their lawyers have access to.

Although administrative detention orders can be issued an unlimited number of times, detainees are generally held under administrative detention for periods ranging from six months to six years, though sometimes longer. The current longest serving administrative detainee, Mazen Natsheh, has cumulatively spent nearly ten and a half years in administratively detention since 1994.

The use of administrative detention in Palestine has been on the rise since the beginning of the Second Intifada in 2000. Just before the intifada began, Israel was holding 12 Palestinians in administrative detention. By the beginning of March 2003, more than one thousand Palestinians were being held in administrative detention. As of February 2013, there were 178 Palestinians administrative detainees in Israeli custody.

Administrative detainees face several forms of ill treatment, including medical neglect, poor detention conditions, limited access to legal counsel, limited family visitation rights, and torture. A 1999 ruling by the Israeli High Court of Justice allows torture (referred to as “moderate physical pressure”) to be used when a detainee is deemed a ‘ticking time bomb’ by the Israeli Security Agency. In practice, nearly all detainees are treated as such, effectively legitimizing torture in all cases.

Legal Process

Administrative detention orders, originally based on the British Mandate Defense (Emergency) Regulations (1945), is authorized both under Israeli domestic law, which is applied to Israeli citizens living in 1948 Territories and the 500,000 illegal Israeli settlers living in the occupied Palestinian territories, and Israeli military law, applied to Palestinians in the occupied territories.

In the 1948 Territories, administrative detention is authorized under the 1979 Emergency Powers Law (Detentions), which is only in force when a state of emergency has been declared by the Knesset. Conveniently, such a state of emergency has been declared since the establishment of the State of Israel in 1948. The law allows the Minister of Defense to issue six-month detention orders, which are renewable indefinitely and subject to review every three months by the president of the District Court. The detainee must be brought before a judge within 48 hours of arrest. In practice, this form of administrative detention is most often applied to Palestinians who hold Israeli citizenship.

In the West Bank, administrative detention is authorized under Military Order 1651, which also allows for the issuing of six-month detention orders, renewable indefinitely, in order to protect “the security of the area or public security.” The definitions of “security of the area” and “public security” are left to the interpretation of military commanders.

Under Military Order 275, detainees must be brought before a judge within 4 days of arrest, longer than the limit imposed on detention without a hearing for those with Israeli citizenship. Detainees can also be held for 60 days without seeing a lawyer.

INDIA

The security legislation that currently authorizes administrative detention in India finds its roots in the colonial era. The Defense of India Law (later, the Public Safety Act) was an emergency criminal law issued in 1925 by English rulers, with the aim of repressing national Indian liberation struggles. In 1978, the Jammu and Kashmir Public Safety Act, applicable only in Kammu and Kashmir state, was promulgated. It empowered state authorities to detain a person without trial under the pretext of maintaining the public order or protecting state security.

In 1989, the armed uprising and popular organizations of the state of Kashmir and Jammu independence movement started. Evidence shows that authorities use the Public Safety Act (PSA) instead of civil penal procedures to secure the detention of political activists, journalists, suspected members or supporters of armed groups, and a range of other individuals against whom there is insufficient evidence for trial or conviction.[4]

Estimates range from 8,000 to 20,000 detained under the PSA in Jammu and Kashmir in the last 20 years.[5] Despite the drop of attacks by independent armed groups, the use of administrative detention appears to be on the rise.[6]

Legal Process

The PSA allows for six month detention orders, extendable to 2 years for matters of “security,” and three month orders, extendable to one year, in cases related to “public order.”[7] PSA detention orders are issued by one of two executive officers – the Divisional Commissioner or a District Magistrate – and are subject to review by a non-judicial Advisory Board. Executives may thwart High Court orders for the release of those detained improperly by successively issuing new detention orders.

A limited form of administrative detention is also authorized in the form of house arrest under Sections 107 and 151 of the Jammu and Kashmir Code of Criminal Procedure (1989). These sections are sometimes used to detain individuals whose PSA detention orders are still being prepared.[8]

INDIA & ISRAEL: ADMINISTRATIVE DETENTION OF POLITICAL LEADERS

Shabir Ahmad Shah, Jammu & Kashmir: Leader of the Jammu and Kashmir Democratic Freedom Party, Shabir spent 25 years in administrative detention for peacefully expressing his political views.[9] Dr. Bilqees, his wife, said to Amnesty International: “His continuing detention is a tactic to break his resistance. The government think that if they keep him away from us and make us all suffer, he will agree to remaining silent.”[10]

Hatem Rebbah Rashi Qafisha, Palestine: Member of the Palestinian Legislative Council (PLC), Change and Reform bloc. He has spent nearly 6 years in administrative detention on five separate occasions. His detention is part of larger Israeli campaign to target democratically elected PLC members in the Change and Reform bloc, which is considered to be pro-Hamas but includes independent and non-Muslim members. In February 2007, a year after the bloc’s victory in January 2006 elections, Israel declared the bloc illegal. By 2009, nearly a third of PLC members were being detained by the Israelis. Since 2005, 20 PLC members have been placed in administrative detention, six of whom were administratively detained more than once. As of 1 March 2013, there were 9 PLC members in administrative detention.

SRI LANKA

Administrative detention in Sri Lanka was initially authorized under certain emergency regulations justified by virtue of the internal armed conflict between the Liberation Tigers of Tamil Eelam (LTTE), a separatist organization whose aim is to establish an independent state in the Tamil Eelan region, and the central government. While in theory combating “terrorism,” Sri Lanka’s government has carried out serious human rights violations, including a lack of habeas corpus, arbitrary detentions and forced disappearances with systematic impunity.

Emergency regulations are backed up by the so-called Prevention of Terrorism Act of 1978 (PTA), made permanent in 1982, which provides police with broad powers to search, arrest and detain suspects without a warrant.

Although the emergency powers expired in 2011, new regulations were introduced under the PTA in order to keep thousands of separatist Tamils imprisoned, including human rights defenders, lawyers, and journalists.

Legal process

Until September 2011, administrative detention was authorized in Sri Lanka through Emergency Regulations 19 and 22. The Emergency Regulations were orders made by the president, bypassing the legislative process during a state of emergency. Emergency Regulations were supreme, superseding any conflicting laws, and allowed for internment for the purposes of “rehabilitation,” which often included forms of political indoctrination.[11]

As for the Prevention of Terrorism Act, it allows for the arrest and detention without charge of individuals for up to 18 months. The Act also allows the Defense Minister to restrict a detainee’s freedom of movement, association and expression after release. These orders cannot be challenged by way of any legal or judiciary apparatus.

SRI LANKA & ISRAEL: YEARS IN SOLITARY CONFINEMENT

“T Ravindran,” Sri Lanka: Ravindran has been held in administrative detention both under the Emergency Regulations and the PTA on suspicion of providing assistance to the LTTE. While in administrative detention, Ravindran was held in solitary confinement for four years, likely as a result of his refusal to sign a confession.[12]

Saleh Mohammad Suleiman Al-‘Arouri, Palestine: Al-‘Arouri has spent a total of almost eighteen years in Israeli detention, through a combination of 20 administrative detention orders and two prison sentences, all pertaining to his alleged affiliation with Hamas. Deeming that, as an imam, he had “too much influence” on his peers, the Israeli Prison Service held Al-‘Arouri in solitary confinement for three years,[13] a practice that may amount to torture or ill-treatment under international law.[14]

UNITED STATES

Administrative detention is used in the US for reasons of “security” and immigration. In both cases, detention facilities have been plagued with issues of physical abuse and torture, poor medical care, and lack of access to legal counsel and adequate translation services.

Lawful immigrants are eligible for deportation for certain crimes, including minor and non-violent crimes (for instance, receiving stolen property, forging signatures on traffic tickets, etc.).[15] They are subject to mandatory detention during deportation proceedings, which can take years, and are unable to legally challenge their detention during that time. Thousands of individuals are subject to mandatory detention every year, including several US citizens and lawful permanent residents who spend months in detention while attempting to prove their ineligibility for deportation.[16]

Although Guantanamo is the most well known of American ‘security prisons’, there is in fact a network of secret detention centers throughout the US where people are indefinitely detained without charge or trial. As of January 2012, only 6 Guantanamo prisoners – out of the 779 who have been detained since 2002[17] – have been convicted of crimes before a military commission, [18] despite the loose evidentiary standards of those courts. Guantanamo detainees are not considered “persons” before the law.[19]

Legal process

The administrative detention of non-citizens, including mandatory detention of non-citizens and asylum seekers, largely takes place under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). The AEDPA and 2001 Patriot Act also make it impossible or difficult for detainees to challenge ‘security-related’ detentions.

As of 2012, American citizens are also legally eligible for indefinite detention and/or execution without charge or trial for terrorism-related reasons under the 2012 National Defense Authorization Act (NDAA). Subtitle D of the NDAA also effectively prevents Guantanamo from being closed by restricting detainee transfers and releases from Guantanamo.

Rather than rely on the legislative branch for setting up an ‘anti-terror’ detention system, the Bush administration created a detention system virtually free of legal constraints and judicial oversight.[20] When pressed, however, the administration began to claim that its secret prison network was justified under the 2001 Authorization of Use of Military Force (AUMF) bill, which authorized the president to use “necessary and appropriate force” against those involved in the September 11 attacks. The Supreme Court later upheld this line of reasoning.

US & ISRAEL: MEDICAL NEGLECT OF DETAINEES

Yusif Osman, United States: Originally from Ghana, Osman was a U.S. legal resident who had lived in Los Angeles for five years. In 2006, he was placed in immigration detention when his friend was found carrying a false ID. Facing deportation on smuggling charges – allegations that he denied – Osman was admitted to a detention center outside of San Diego. During his intake medical screening, a nurse mistakenly closed his medical file without filling in any information. When Osman collapsed in his cell three months later, a guard left him on the floor and, after finding that Osman’s medical file was blank, told him to fill out a sick call request and went on a lunch break. When Osman was finally brought to paramedics, he died. Physicians claim that he could have lived had he received timely medical treatment.[21]

Mohammed Suleiman, Palestine: Administrative detainee Suleiman suffers from thalassemia and chronic anemia, which require him to have blood transfusions every two to three weeks. As a result of the frequent transfusions, Suleiman’s iron levels are abnormally high, which can lead to a loss of function in the heart, liver, and skin. Before his detention, Mohammed used to intravenously inject a medication called Desferal, which he is unable to do in prison. Instead, Mohammed has been taking Exjade, a much more expensive oral alternative to Desferal, which he can only afford to take intermittently. Israel refuses to pay for the Exjade, despite its obligations to do so under Article 91 of the Fourth Geneva Convention. Approximately three months after his arrest, medical tests showed that Mohammed now suffers from an enlarged heart and liver, likely caused by his irregular use of Exjade.[22]

UNITED KINGDOM

Like the US, the UK uses administrative detention both for purposes of ‘security’ and immigration. Two months after the attacks of September 11^th, 2001, the UK Government announced that it no longer intended to uphold the right to liberty under the European Convention on Human Rights in terrorism-related circumstances.[23] It then introduced the Anti-Terrorism Crime and Security Act 2001, which allowed for the indefinite imprisonment without charge or trial of foreign nationals in cases when deportation was impossible. In 2004, the House of Lords ruled that indefinite detention without charge was against the Human Rights Act, effectively ending the practice. The UK then went through a series of other “terrorism-related” detention schemes, including the current one, which allows the government to control a person’s association and movement based on a secret file and without trial.

As for immigration-related administrative detention, the UK is one of the few European countries that have yet to impose limits on the time a person can spend in immigration detention. Immigration detainees complain of high levels of violence and drug use inside detention centers and an increasing number of suicides amongst detainees, as well as systematic medical neglect.

Immigration detainees also suffer from a serious lack of legal representation, with 77% lacking access to a publicly funded lawyer at hearings appealing their detention.[24] According to research by Detention Action, asylum-seekers were seven times more likely to successfully appeal their detention if legally represented.[25]

Legal process

Most immigration-related administrative detentions take place under the 1971 Immigration Act. In 2010, approximately 26,000 people were detained under the powers of this law.[26] Moreover, in accordance with the UK Borders Act 2007, foreign nationals sentenced to imprisonment for 12 months or more in the UK are subject to automatic deportation, with a few exceptions.

Detention can also take place under the Extradition Act 2003, according to which a person can be detained pending extradition to the US or another designated country. The accused does not have the right to challenge the evidence provided by the country requesting extradition in a British Court of Law. Renowned detainee Babar Ahmad, for instance, was detained under Extradition Act 2003 without charge for 8 years and was finally extradited to the US in October 2012, where he remains in detention.

THE UK & ISRAEL: DETENTION CENTERS & PRISONS SERVICED BY G4S

G4S, the largest security company in the world, currently has operations in 125 countries.[27] It services facilities where administrative detainees in both Palestine and the UK are held:

Brook House, Tinsley House, and Cedars (UK): G4S manages the two detention centers in Gatwick Airport, Brook House and Tinsley House, as well as a detention center for families, Cedars. Cedars is also jointly run by a children’s charity, which activists argue is used to sugarcoat the continued detention of children.[28] The UK government has been accused of using the privately operated nature of these centers to protect itself from liability in cases of unlawful detention and ill treatment in these facilities.[29]

Meggido Prison and Ofer Prison, Palestine: G4S provides services to Meggido and Ketziot Prisons, where many administrative detainees are held, and installed a central command room in Ofer Prison, where administrative detainees are also held and where their detention orders are issued. G4S also provides services to the Hasharon compound, as well as Al-Moskobiyeh and Al-Jalameh interrogation centers, [30] which are notorious for their use of torture. All of these facilities are also located in the 1948 Territories, in contravention of Article 76 of the Fourth Geneva Convention, which prohibits the transfer of prisoners from occupied territories. This transfer, coupled with the restrictive permit system used by Israel, also means that many detainees receive few, if any, family visits.[31]

AUSTRALIA

Australia uses administrative detention for refugees and asylum seekers. According to its ‘offshore detention’ policy, refugees and asylum seekers are held automatically, indefinitely and without judicial review in Nauru, Papua New Guinea, and a number of “Excised Offshore Places.” The latter are areas technically under Australian jurisdiction but outside of “Australia’s migration zone.” Detainees are held while their applications for refuge and asylum are considered, which can take anywhere from a few months to several years.

The United Nations High Commission for Refugees (UNHCR) has long criticized conditions in these detention centers, holding that “it is difficult, if not impossible, to meet international standards in remote parts of the Pacific.”[32] For instance, a 2013 report issued by the UNHCR on conditions in the Manus Island Detention Center in Papua New Guinea reported that whole families were being held in three by three meter shipping container-like buildings, and single men in canvas tents in nearly unbearable harsh, humid and damp weather.[33]

Legal Process

Detentions take place under the 1989 Migration Amendment Act, which provides for the administrative detention of all foreign nationals (except New Zealanders) who arrive without a valid visa. When the Australian government introduced the “Pacific Solution” in September 2001, the act was revised to ‘excise’ Ashmore Reef, Cartier Island, Christmas Island, and other territories, allowing the government to deny migrants held in those territories access to Australian legal protection.

In late 2007 and early 2008, the closure of offshore Nauru and Papua New Guinea Immigration Detention Centers was announced. During this period, the “Pacific Solution” ostensibly came to an end. However, as of the passing of the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011, the transportation of asylum seekers to remote Pacific islands was re-authorized. For instance, as of October 2012, there were approximately 2,000 asylum seekers in the Nauru detention center.[34]

AUSTRALIA & ISRAEL: INADEQUATE CARE FOR DISABLED DETAINEES

Zeinab and Rosa, Australia: These two young girls, 15 and 9 years old, respectively, were asylum seekers from Iran placed in administrative detention along with their mothers in 2012. They both suffer from cerebral palsy, and were denied adequate care while in detention. They were both given merely one session of physiotherapy a week, though they require and were receiving far more in Iran. Their conditions deteriorated rapidly after several months in detention as a result of this medical neglect.[35]

Loai Ashqar, Palestine: Loai suffers from paralysis in his left leg due to the brutal torture he endured at the hands of Israeli interrogators in 2005. Both after the initial injury – in which three of his vertebrae were broken – and during subsequent administrative detentions, Ashqar was denied proper medical care, as well as the use of a wheelchair.[36]

JORDAN

According to the Jordan National Centre for Human Rights, around 11,300 people were administratively detained in Jordan in 2012.[37] Human Rights Watch estimates that administrative detainees account for one in five inmates in Jordanian prisons.[38] Using this procedure, governors and other executive officials routinely detain people indefinitely and without judicial review, including personal enemies and people freed by the courts.

In a cell in Qafqafa prison visited by Human Rights Watch in 2009, 20 of the 24 prisoners were administratively detained after having been found innocent by a court, posted judicial bail, or served full sentences for crimes of which they had already been convicted.[39]

Victims of crimes have also been administratively detained, ostensibly for their own “protection,” including women threatened with family violence. Women found unaccompanied in the presence of an unrelated man are also often administratively detained under suspicion of “immoral behavior.”

Although administrative detainees have the right to petition the High Court of Justice, the vast majority are unable to do so financially, and so remain in custody according to the whims of executive officials.

Legal Process

Since the rule of martial law in Jordan ended in 1989, administrative detention has taken place under the powers of the 1954 Crime Prevention Law. The law allows unelected officials of the executive branch – governors and district administrators, who fall under the authority of the Ministry of Interior – to issue detention orders if they believe that the person is “a danger to the people.” They are not required to show that a crime has been committed. Though the majority of administrative detainees spend less than a year in detention, detention orders are unlimited.[40]

JORDAN & ISRAEL: MISTREATMENT OF HUNGER STRIKERS

Bani Fadl, Jordan: Fadl was placed in administrative detention pending his deportation to the West Bank, despite the fact that he has Jordanian citizenship. After four months in administrative detention, he went on hunger strike along with 18 other administrative detainees. Like all hunger strikers in Jordanian detention, he was placed in solitary confinement and denied water by prison authorities, who routinely force detainees into “dry” hunger strikes in order to shorten the duration of the strikes[41] in contravention of international standards.[42] There have also been reports of hunger strikers in administrative detention being force-fed in Jordan, which is also against international standards.[43]

Khader Adnan, Palestine: On 17 December 2011, the day he was arrested, administrative detainee Adnan began a 66-day hunger strike. He was placed in solitary confinement as punishment, was shackled during his eventual hospitalization, and was repeatedly threatened with force-feeding.[44] Force-feeding is classified as a form of torture in the International Convention Against Torture and has been condemned as such by the Israeli Medical Association.[45] Though Adnan was never force-fed, in February 2013, the Israeli Ministry of Health issued guidelines permitting the practice after 28 days of hunger strike.[46]

MYANMAR (BURMA)

Once known as one of the harshest military dictatorships in the world, Myanmar has been in the midst of a reform period since the military junta announced a new constitution as part of its ‘roadmap to democracy’ in 2008. In 2011, the junta was officially dissolved, although military influence in the government is still strong. The country has also been plagued by sectarian violence in the state of Rakhine, where ethnic conflict between Rakhine Buddhists and Rohingya Muslims has led to the mass targeting of Rohingya Muslims, a historically oppressed ethno-linguistic minority in Myanmar.

In 2010, Aung San Suu Kyi, Myanmar’s most renowned political prisoner, was released from house arrest, and is now the Chairperson of Myanmar’s opposition party, the National League for Democracy (NLD). Despite a number of mass prisoner amnesties as well as the repealing of many restrictive laws associated with the junta, administrative detention remains legal in the country and continues to be used to detain activists and ethnic minorities.

Legal Process

The 1975 State Protection Law, which remains on the books in Myanmar, allows for the indefinite detention without charge or trial of anyone who currently or may in the future threaten the sovereignty and security of the state or public order. Aung San Suu Kyi was detained for 15 years under the powers of this law.

Administrative detention is also still legal in Myanmar under the 1947 Emergency Provisions Act, which allows for foreigners to be detained for a maximum of two years under the order of the President if they are believed to have entered the country illegally or to have assisted someone entering illegally. The Act allows for arrest without warrant and places the burden of proof on the accused. The Act especially threatens Rohingyas, whose citizenships were revoked en masse through the Citizenship Act of 1982 and who are forbidden from travelling abroad without special permission for business or medical purposes.

MYANMAR & ISRAEL: ADMINISTRATIVE DETENTION OF RELEASED PRISONERS

May Win Myint, Myanmar: May Win Myint, who was elected as a Member of Parliament in 1990, served a seven-year prison sentence for organizing a meeting for the National League for Democracy. After she completed her sentence, she was detained without charge or trial for an additional two years.[47]

Mohammad Jamal Al-Natsheh: Also an elected official, Palestinian Legislative Council member Al-Natsheh was administratively detained a mere four months after completing an eight-and-a-half-year sentence in Israeli prison. As of January 2013, Al-Natsheh had spent 13 years of his life in prison, 4.5 of which were spent in administrative detention.[48]

CHINA

Administrative detention is used in China for reasons of ‘security’ and ‘public order’, as well as other minor infractions that, as a governmental official once put it, fall “somewhere between crime and error.”[49] In many cases, administrative detention is used to put away human rights activists, journalists, and religious and ethnic minorities. Most of these administrative detentions occur under China’s “Re-education Through Labor” (RTL) practice, first introduced during the Chinese Communist Party’s 1955 campaign against ‘counter-revolutionaries’. According to government statistics, approximately 160,000 Chinese people are held without trial in 350 RTL facilities at any given time.[50] Also according to the government, more than 3.5 million people were subject to RTL between 1955 and 2001.[51] Real figures are believed to be much higher.

Alleged prostitutes and their clients can also be administratively detained for six months to two years under the government’s ‘Custody and Education’ program. Alleged drug addicts are also subject to mandatory administrative detention from two to five years for ‘treatment’ that typically includes hard labor.

Complaints of torture, including sexual assault against women and children, are common amongst detainees. Detainees report having been suspended from doors or ceilings and beaten with truncheons and electric shock batons. Drug addicts are denied methadone therapy and HIV/AIDS treatment. A report by Human Rights Watch suggests that, in some cases, HIV testing is merely conducted so that guards know “which female inmates we could sleep with without using a condom.”[52] It also appears that guards allow inmates to use heroin during so-called ‘treatment’.[53]

Legal Process

RTL is authorized under the 1957 Resolution on Approving the Decision of the State Council on the Issue of the Reeducation through Labor by the National Peoples Congress (NPC) Standing Committee and the 1982 Notice of the State Council on Circulating the Trial Practices of the Ministry of Public Security on Re-education through Labor. Those punishable under RTL regulations include those who “oppose the CCP or Socialism” and those who “refuse to work” and “complain endlessly.”[54] RTL, though in theory under the purview of RTL management committees, is generally ordered by the Public Security Bureau. RTL has also been incorporated into local legislation. For instance, a Shanghai Province regulation allows for the punishment in RTL of adultery.[55] People can be sentenced to RTL for up to three years without trial, and sentences can be renewed for an additional year. Detainees are technically allowed to challenge their sentencing before a management committee, but appeals are almost always denied.

The government has been promising reforms to RTL since as early as 2006. On January 7, 2012, plans were announced to abolish RTL by the end of 2013. It is thought that RTL will be replaced by another administrative detention system under the Public Security Bureau that will allow for detention without trial, though potentially with access to legal counsel.[56]

Administrative detention can also take place in China under the 2005 Public Order Administration Punishment Law. Offenses punishable under this law include “spreading rumors,” “provoking quarrels,” and “instigating or plotting illegal gatherings, marches or demonstrations.”[57]

CHINA & ISRAEL: DETENTION OF HUMAN RIGHTS DEFENDERS

Yao Zhenxiang, China: Zhenxiang, a human rights activists and member of the Shanghai Human Rights Association, has been placed under administrative detention several times. Most recently, he was sentenced to two years of RTL after being arrested on his way to a dissident gathering in Xi’an. The detention order was ostensibly issued as a result of his having patronized prostitutes.[58] In 1995, the chairman of the Shanghai Human Rights Association, as well as founding member Yang Zhou and four other activists who work with the Association were also sentenced to three years of RTL.[59]

Walid Hanatsheh, Palestine: Hanatsheh has been in administrative detention for a total of over five years under three separate occasions. Each order was based on suggestions that Hanatsheh works with the Popular Front for the Liberation of Palestine (PFLP), though the Israeli prosecution never provided any evidence to substantiate this claim. Hanatsheh works as Finance and Administration Manager for the Health Work Committees (HWC), which provides healthcare to over 500,000 Palestinians. Addameer believes that Hanatsheh’s detention stems in part from HWC’s support for and mobilization around prisoner hunger strikes in September 2011, which was started by PFLP prisoners in Israeli custody.[60]

SAUDI ARABIA

Saudi Arabia has used administrative detention in order to cope with anti-government protests during the Arab Spring, detaining members of the Shi’a minority, reform activists and women’s rights activists indefinitely without charge or trial. The government has also used administrative detention to detain alleged ‘terrorists’ in the wake of a spate of attacks attributed to Al-Qaeda in the Arabian Peninsula (AQAP) against Western and Saudi governmental targets. These attacks, sparked in large part by the monarchy’s cooperation with US-led invasions of Iraq and Afghanistan, were exploited by the government in order to adopt aggressive ‘counter-terrorism’ initiatives used to stifle political dissent.

There have been several cases of detainees being held for over five or six years without charge or trial. [61] Detainees are often subject to religious re-education programs, which focus in large part on the supposed requirements in Islam to obey the ruler.

Legal Process

Administrative detention takes place outside of the judicial system, in prisons under the domestic intelligence agency, the General Directorate for Investigations (mabahith) and most often on the orders of the Ministry of the Interior. Administrative detention in Saudi Arabia is, technically speaking, against the law, specifically Article 34 of the country’s Law of Criminal Procedure, which mandates that detainees be brought to trail within 6 months of arrest. Human Rights Watch has documented at least one case of the mabahith being successfully sued for the release of detainees under Article 34, though the detainee in question reportedly continued to be detained in spite of the court’s order of release.[62]

Rehabilitation programs for administrative detainees take place under the authority of Consultation Committees in two special detention centers: one reserved for Saudi ex-Guantanamo detainees, and the other for thousands of other mabahith prisoners. In 2008, a group of mabahith detainees were selected for trial. Aside from this group, however, the only chance detainees have for release is to receive a positive post-rehabilitation assessment from the Consultation Committees, although some detainees who received recommendations from the committees have continued to be detained.

SAUDI ARABIA & ISRAEL: PUNISHING THE FAMILIES OF DETAINEES

Anonymous, Saudi Arabia: This man, a foreign national, was working in Saudi Arabia as a nurse. When a patient of his was arrested as a ‘terrorism’ suspect, he too was detained in a number of mabahith prisons. At the time of his arrest, he was preparing for a trip to his home country to visit his ailing mother. As is the case for other foreigners in Saudi detention, this man’s family was denied the opportunity to visit their relative in detention. His mother died during his fifth year in detention without charge or trial.[63]

Ahmad Qatamish, Palestine: During Qatamish’s arrest in 2011, his wife and 22-year old daughter, as well as two other female relatives, one of whom was 14 years old, were held hostage by thirty to forty Israeli soldiers in order to compel Qatamish, who was at his brother’s house at the time, to surrender himself. Qatamish, one of the longest-serving administrative detainees in Israeli custody, has repeatedly been promised release by prison authorities, only to have his detention order renewed at the very last minute. This has had a torturous effect both on him and his family. Reflecting on the impact of his 2011 arrest on their daughter, Ahmad’s wife, Suha, said: “She was three years old at that moment [when they arrested her father in 1992], and the marks are still there. When the soldiers told her that [they] arrested her father again, she almost collapsed.”[64]

MALAYSIA

Malaysia uses administrative detention primarily in its fight against ‘terrorism’. Campaigners against Malaysia’s administrative detention legislation accuse the government of using a highly politicized and broad definition of “security offenses” in its detention practices. In recent years, administrative detention has been used in large part to detain hundreds of members of Jemaah Islamiah, an Indonesia-based militant organization classified by the U.S. State Department as a foreign terrorist organization. Activists claim that so-called ‘terrorists’ are detained as scapegoats merely in order to please the US,[65] with whom Malaysia cooperates closely on security measures. Administrative detention is also used against suspected drug offenders.

Legal Process

In 2012, the Security Offenses (Special Measures) 2012 Act (SOSMA) replaced the much-hated 1960 Internal Security Act (ISA) in authorizing administrative detention. The ISA gave the Home Minister the authority to sentence ‘security suspects’ to detention without charge or trial for two-year periods, renewable indefinitely. SOSMA reduced the period of administrative detention to 28 days, after which the detainee must be charged or released. It also provides for immediate access to family members and legal counsel.

SOSMA has nevertheless come under fire by ISA critics for not going far enough in reforming administrative detention. Section 4 (1) of the Act still allows for detention based on secret evidence. Moreover, SOSMA allows for the indefinite detention of acquitted defendants in the event that the public prosecutor appeals the acquittal and requests imprisonment during the appeal process,[66] a request that can be made without the provision of further evidence.[67] According to Syed Ibrahim Syed Noh, Chairman of the Abolish ISA Movement in Malaysia, although SOSMA nominally takes away the Home Minister’s right to detain people, he can still do so through the public prosecutor, who falls directly under his command.[68]

Administrative detention also remains legal under the Dangerous Drugs (Special Preventive Measures) Act (DDA), which, like the repealed ISA, allows the Home Minister to sign two-year detention orders, renewable indefinitely. The decision cannot be challenged in court. During 2012, approximately 700 people were detained under DDA.[69]

MALAYSIA & ISRAEL: DENIAL OF LAWYER VISITS

Mohd Hilmi Hasim, Malaysia: Detained under the powers of SOSMA, Hasim was denied access to a lawyer during the first two weeks of detention, in contravention of a new rule that detainees must be given access to their lawyer within 48 hours of arrest.[70]

Linan Abu Ghulmeh: Linan was placed in administrative detention after having been released as part of the prisoner release deal concluded by Israel and Hamas in 2011. Linan was held incommunicado for 19 days during her initial interrogation and denied lawyer visits on the grounds that it might interfere with the investigation. During this time, she was subject to sleep deprivation and denied adequate meals, causing her to lose a significant amount of weight.[71] According to Israeli military law, a Palestinian detainee can be interrogated for a total period of 90 days, during which time he or she can be denied access to a lawyer for up to 60 days. This is a breach of international law.[72]

SINGAPORE

Singapore uses a cluster of legislation inherited from the colonial era and its 1963-1965 merger with Malaysia in order to justify administrative detention. Administrative detention is allegedly carried out for reasons of ‘security’, ‘public order’, and for the rehabilitation of drug addicts. In the early 1960s, suspected Marxists, trade unionists, students, lawyers, and journalists were rounded up for administrative detention. Members of the Barison Sosialis (Socialist Front), in particular, were targeted, including one of the world’s longest-serving prisoners, Chia Thye Poh, who was administratively detained for 26 years.[73] Administrative detention laws continue to allow the government to detain activists indefinitely without charge or trial. So-called “Islamic fundamentalists” and other ‘fanatics’ are also targeted for administrative detention.

Legal Process

Administrative or ‘preventive’ detention occurs through the Internal Security Act (ISA), the Criminal Law (Temporary Provisions) Act (CLTP), and the Misuse of Drugs Act (MDA). The ISA, inherited from the Malaysian merger, allows the executive to sign two-year detention orders, renewable indefinitely. The CTLP, derived from a British colonial ordinance, punishes the possession and making of “subversive documents,” certain kinds of strikes and lockouts, as well as a number of other broadly defined ‘public safety’-related offenses. The CTLP allows the Minister for Home Affairs to order detention for one-year periods, renewable indefinitely. Orders are referred to advisory committees within 28 days and are then subject to review by the President, who can confirm or cancel the order. Finally, the MDA allows for those suspected of drug use to be detained for purposes of rehabilitation for 6-month periods, renewable up to three years.[74]

SINGAPORE & ISRAEL: DETENTION OF HEALTH PROFESSIONALS

Dr. Lim Hock Siew, Singapore: Dr. Siew was administratively detained under the ISA for over 19 years. He was arrested in 1963 along with 110 other leftists in ‘Operation Coldstore’. A general practitioner, Dr. Siew was known for his generosity towards his patients, for whom he often covered costs if they could not afford treatment or transportation.[75]

Ayed Dudeen, Palestine: Dudeen has been administratively detained multiple times based on his alleged relationship to Hamas. During his administrative detention between October 2007 and June 2011, his detention order was renewed 30 times. He was placed in administrative detention again exactly one month after his release, on 9 August 2011. Dudeen is a nurse and ambulance driver, and has served as deputy director of the Hebron Palestinian Red Crescent Society’s emergency services since 1989.[76]

SYRIA

For nearly five decades, administrative detention took place in Syria under emergency rule established by the Military Committee of the Syrian Ba’ath Party when it successfully launched a coup d’état on 8 March 1963. The state of emergency was repeatedly extended based on conflicts with the Israeli military and threats by militant groups within Syria. In April 2011, dictator Bashar Al-Assad lifted the emergency law in response to the demands of protests sweeping the country, though little has changed in practice, and administrative detention continues to be legal. For instance, according to a 2012 report issued by Human Rights Watch (HRW), more than half of the former detainees interviewed by HRW between April 2011 and May 2012 were released without ever having received a charge or trial.[77]

Since the beginning of the 2011 uprising, the President has granted a number of prisoner amnesties, though the vast majority of detainees released under the amnesties in fact remained imprisoned.[78] As of January 2012, activists claimed that upwards of 25,000 people were detained in Syria.[79] Activists also estimate that at least 865 detainees died in detention in 2012.[80] It is unknown how many of these detainees received charge or trial, since, when trials do occur, they are often held in secret and without legal counsel present.

Many deaths in custody occur as a result of medical neglect and torture. Torture methods commonplace in detention centers include: rape, electric shocks to the genitalia and other parts of the body, beatings with batons and cables, burning (including with acid), and forced nudity. There have also been reports of detainees being forced to lick their own blood off the floor after torture sessions.[81] Prisons and detention centers also suffer from severe overcrowding, with upwards of 60 people being crammed into 3.5 by 3 meter cells.[82]

Legal Process

When Assad repealed Legislative Decree No. 51, which established the state of emergency and authorized administrative detention, he also issued a decree allowing detention without charge or trial for up to two months. Despite the two-month limit, many detained since 2011 reported having been held without charge or trial for over 60 days.[83]

In fact, administrative detention almost always takes place under Syria’s security and intelligence apparatus, which is technically immune to any legal system and enjoys unbound jurisdiction. The four main intelligence agencies run a network of detention and torture facilities. These agencies are: the Department of Military Intelligence, the Air Force Intelligence Directorate, the Political Security Directorate, and the General Intelligence Directorate.

SYRIA & ISRAEL: ADMINISTRATIVE DETENTION & TORTURE OF CHILDREN

Hossam: At the age of 13, Hossam was detained and tortured for three days in military security branch close to Tal Kalakh. He was repeatedly electrocuted and beaten. During his third torture session, his interrogators removed one of his toenails with pliers. Before returning him to his cell, they added: “Remember this saying, always keep it in mind: We take both kids and adults, and we kill them both.”[84]

Emad Al-Ashhab: At the age of 17, Al-Ashhab was arrested and detained for nearly a year on four successive administrative detention orders. On the day of his arrest, Israeli soldiers covered his face with a woolen bag, shackled his hands and feet, and beat him all over his body with a stick. They also burnt his hand with cigarettes.[85] In a survey of 50 cases of children prisoners conducted by Defense for Children International in 2000-2001, 100 percent of the children interviewed were subject to torture and 95 percent were beaten by soldiers during arrest. [86]

Other countries that practice administrative detention in some capacity include:

Brazil: Administrative detention in Brazil is only legal as a disciplinary measure within the military.[87]

Cambodia, Vietnam, and Lao PDR: Like China, these three countries administratively detain alleged drug addicts in labor camps. Individuals are detained without charge or trial for up to a year in Cambodia, up to fifteen months in Lao PDR, and up to five years in Vietnam. Several detainees have reported multiple detentions, spending decades in detention. None of these countries offer a process for appealing detention. Hard labor, as well as sexual abuse and other forms of torture – including against children – have been reported in all three countries.[88]

Canada: Administrative detention takes place in Canada under the powers of the Immigration and Refugee Protection Act of 2011, which allows the government to issue “security certificates” mandating the deportation and/or detention without charge or trial of foreign nationals based on secret files in cases of ‘national security’. In 2008, a Canadian court found this practice to be unconstitutional, and introduced several reforms to the practice,[89] one of which allowed the Minister of Justice to appoint a “special advocate” who could review and challenge secret evidence.[90] The “special advocate” is forbidden from discussing the evidence and court proceedings with the detainee without permission from a judge.[91]

Bosnia and Herzegovina: In 2008, under pressure from the US to crack down on former foreigner fighters with alleged links to groups classified by the US as ‘foreign terrorist organizations’, Bosnia and Herzegovina passed a law allowing for the indefinite detention of foreign terrorism suspects without charge or trial. As of 2012, two men were being detained under the powers of this law, while a number of others were deported from the country.[92]

Iraq: According to Amnesty International, in 2006, US and UK forces were holding 14,000 people for prolonged periods without charge or trial.[93] Most of these detainees were in US custody. Although, in July 2012, the last two detainees held by the US military were transferred to Iraqi custody[94], the Iraqi government has come under sustained pressure from the US government to continue the latter’s practice of indefinite detention without charge or trial.[95] Although Iraq’s Code of Criminal Procedure mandates that suspects be brought before a judge within 24 hours of arrest,[96] in July 2012, the Iraqi Chairman of the Supreme Judicial Council (SJC) reported that approximately 12,000 untried detainees were being held in facilities run by the Justice Ministry.[97] An additional unknown number of detainees were being held without charge or trial in detention centers run by the Ministries of Defense and Interior. According to the US State Department, many are taken into custody and held for ransom by security forces.[98] It is unclear how many untried detainees are merely in some form of judicially sanctioned but illegally prolonged ‘pre-trial detention’ and how many are being administratively detained. Human Rights Watch has documented some instances of activists being arrested en masse and held in ‘preventive detention’ in anticipation of protests.[99] The Kurdish Regional Government is also said to practice some forms of administrative detention.[100] Complaints of torture and sexual abuse in detention facilities run by the central government are widespread.[101]

Afghanistan: Like Iraq, Afghanistan has come under pressure by the US government to continue the American practice of indefinite detention without charge or trial, despite the fact that, in September 2012, a high Afghan court ruled that such detentions were against Afghan law.[102] For years, the US military has been holding ‘security suspects’ in administrative detention in a network of military detention centres. Some have been held at renowned Bagram detention centre for decades.[103] On March 2013, Afghan President Karzai announced that the final group of detainees at the Bagram detention center had been transferred from US to Afghan custody, in accordance with a 2012 Memorandum of Understanding (MoU) between the US and Afghan governments. According to the MoU, however, the US will retain exclusive and indefinite control over approximately 50 non-Afghan Bagram detainees, effectively allowing for their continued indefinite administrative detention. [104] Administrative detention is also practiced in Afghanistan by the National Directorate of Security (NDS), which has the authority to detain people without judicial review.[105]

Egypt: Administrative detention existed for decades in Egypt by virtue of the Emergency Law introduced in 1967. Although the law expired on 31 May 2011, legally ending the practice of administrative detention in Egypt, thousands remained in detention without charge or trial in 2011, despite court orders for their release.[106] Divisions between the executive and judicial branches of government also continue to be weak,[107] raising concerns about the extent to which detention by court order can be considered ‘non-administrative’.

Conclusion

Addameer strongly condemns the practice of administrative detention throughout the world, recognizing the negative impact it has on the detainees themselves, their families, and the political, ethnic, and religious communities of which they are a part. Like the Israeli authorities, many of the aforementioned governments employ administrative detention as a form of collective punishment, forcing members of the communities targeted by the practice to live in constant fear of detention without charge or trial. This is also in contravention of international law, which mandates that administrative detention take place on a limited and individual basis.

Not only is the legality of the practice itself questionable – especially in the countries that allow for indefinite administrative detention – administrative detainees typically undergo both psychological and physical torture, as well as medical neglect, all in contravention of international law and human rights. Addameer recognizes that, though the legal apparatuses that shape how administrative detention is implemented in the aforementioned countries vary significantly, the immense human suffering that the practice causes is essentially the same across borders. This suffering, in and of itself, is reason enough to immediately abolish the practice, from Palestine to China.