The policy of holding terrorism suspects without charge, also known as administrative detention, was dealt a significant blow this week when Defense Minister Israel Katz abolished its use against Israeli citizens in Judea and Samaria.
“In a reality where the Jewish settlement in Judea and Samaria is subject to serious Palestinian terror threats and unjustified international sanctions are taken against the settlers, it is not appropriate for the State of Israel to take such a severe measure against the people of the settlements,” Katz said in a recent statement.
“If there is suspicion of criminal acts, the perpetrators can be prosecuted, and if not, there are other preventive measures that can be taken other than administrative detention orders,” he added.
According to the defense minister’s office, Katz passed down the order to Shin Bet head Ronen Bar, telling him “to stop the use of administrative detention orders against Jewish settlers in Judea and Samaria, and asked him to put alternative tools in place.”
The defense minister made it clear that this policy shift was not an endorsement of settler attacks against Arabs but rather an attempt to liberalize Israel’s criminal code.
“I condemn any phenomenon of violence against Palestinians and taking the law into one’s own hands, and I also appeal to the settlement leadership to take a similar public position and express an unequivocal position on the issue,” Katz said.
Administrative detention is currently being applied to several thousand noncitizen Arabs, a small number of Israeli Arabs, and seven Jewish Israelis. The new policy coming out of the Ministry of Defense will not result in the immediate release of the seven Jewish Israelis, who will need to serve out the rest of their terms.
What is administrative detention?
“Administrative detention is a procedure that allows the Israeli military to hold prisoners indefinitely on secret information without charging them or allowing them to stand trial. Although administrative detention is used almost exclusively to detain Palestinians from the territories, which includes the West Bank, east Jerusalem and the Gaza Strip, Israeli citizens and foreign nationals can also be held as administrative detainees by Israel if they present a security risk,” Alan Baker, a former military prosecutor and senior legal adviser in the Israel Defense Forces, as well as a former Israeli ambassador to Canada, told JNS.
Administrative detention is without a criminal process, without presentation of evidence, cross-examination, etc. This is usually a result of the need to maintain secret sources of evidence that cannot be revealed. It is also used as a means of deterrence for others from planning acts of terror,” Baker said.
Martin Sherman, a former adviser to Agriculture Minister Rafael Eitan and a senior researcher at the Israel Defense and Security Forum, told JNS, “Israel faces an array of threats that no other country faces, whether it’s a conventional military threat or nonconventional tariff threats. Israel requires unique legal solutions to these problems.”
A person under administrative detention can be held for up to six months. These terms can be renewed indefinitely without presenting evidence or charges to the accused or his legal counsel. In Judea and Samaria, the application for administrative detention can be approved by IDF district commander and officers of higher rank. However, they are subject to appeal in the military court system.
Along with administrative detention, Israel uses several extrajudicial processes in Judea and Samaria against both citizens and non-citizens. Administrative restraining orders block individuals from entering certain areas or contacting specific people. Furthermore, watered-down versions of administrative detention have been used to place people under house arrest, to enforce curfews, to track individuals, or to block persons of interest from entering Judea and Samaria.
Baker explained that “Israel uses three different laws to hold people without trial.” Article 285 of Military Order 1651, which is part of the military legislation applying in Judea and Samaria, is the law directly impacted by the new policy from the Defense Ministry. In addition to this statute, Israel also uses the Internment of Unlawful Combatants Law (Unlawful Combatants Law) as well as the Emergency Powers (Detentions) Law, which apply to Gazans and Israeli citizens respectively.
“The legal process employed by Israel for administrative detention is provided for in two legal instruments,” Baker explained. The first provision is The Emergency Powers (Detention) Law, 1979, which applies in Israel but does not include Judea and Samaria or Gaza. The second one is The Administrative Detention Order (Temporary Provision), 1988, which covers administrative detention in Judea, Samaria and the Gaza Strip.
There has been a sharp rise in the use of administrative detention, but the practice goes back to British Mandate Palestine. The legal structure that is currently used is modeled on a British law known as the Defence (Emergency) Regulations, which was passed in 1945 and repealed immediately before the British withdrawal from Israel in 1948.
The First Knesset adopted variations on these laws following Israel’s 1948 Declaration of Independence. The use of administrative detention against Israeli citizens goes back as early as 1951, when members of the Charedi underground group Brit HaKanaim (“Covenant of the Zealots”) were detained without trial.
The application of administrative detention began in Judea and Samaria shortly following the Six-Day War and has been used there ever since.
In 2015, the Israeli government began the broad usage of administrative detention against Jews in Judea and Samaria, to rein in “price tag” attacks against Arabs. The vast majority of cases where administrative detention was used against Jews targeted members of the “hilltop youth” movement, which has been implicated in several attacks against Arab villages.
Since the beginning of Yoav Gallant’s tenure as defense minister in December 2022, the frequency of use for administrative detention against Jews in Judea and Samaria massively spiked. In his entire 22-month tenure, Gallant authorized 29 administrative detentions, including 16 since the start of 2024. In the 74 years preceding Gallant’s tenure, a total of 25 Israelis were held without charges, according to HaKol HaYehudi.
Response to the new policy
The new policy coming out of the Ministry of Defense has garnered a broad spectrum of reactions. National Security Minister Itamar Ben-Gvir vehemently supports the move.
“I commend my colleague, Minister Israel Katz, for this significant and important announcement. His decision to stop issuing administrative orders against settlers in the West Bank corrects years of injustice and honors those who love this land,” Ben-Gvir said.
Finance Minister Betzalel Smotrich added to this, saying, “With this decision, Minister Katz has ended years of discrimination against Judea and Samaria settlers and rectified a long-standing injustice. Settlers were treated as second-class citizens, subjected to draconian and undemocratic measures that trampled their rights—measures not applied to any other population in Israel except dangerous enemies and terrorists.”
Bar, on the other hand, has had a long history of opposing such restriction on the Shin Bet’s operational freedom in Judea and Samaria. In June, Bar said that such a move would deal a “serious harm to the security of Israel.”
Various opposition members have also spoken out against the new policy.
“Minister Katz’s capitulation to the extremist pressures of the settlers, to deny administrative detention as a means of preventing Jewish terror, will result in more casualties. The first to be harmed will be the settlers in Judea and Samaria, followed by all Israeli citizens,” Yesh Atid MK Elazar Stern said.
The U.S. has also pressured the government to retract the new policy. In a recent conversation, Katz assured Defense Secretary Loyd Austin that the change was “an internal step taken out of a commitment to democratic principles.”
In a recent press conference Matthew Miller, the spokesperson for the U.S. State Department, said that the new policy was “a rolling back of one of the limited tools that the Israeli government was effectively using to rein in this illegal activity.”
These recent developments have brought administrative detention as a broad institution into center stage. Some voices have called to continue the process that was started by Katz and ban the use of administrative detention against all Israeli citizens, including Israeli Arabs. Others say that it is an important tool in Israel’s defense apparatus that was simply misused in the case of Jewish residents of Judea and Samaria.
“I think it is important for it to be used but not against Israeli citizens, it’s to be used against enemies of the state. That being said, I think the dividing line should be the substantial intentions of the detainees. Whether or not they recognize and support the Jewish state as a Jewish state is the important question,” Sherman said.
