What is administrative detention and who are the Palestinian prisoners being released by Israel?

Israel’s release of dozens of Palestinian prisoners in exchange for some of the Israeli hostages kidnapped by Hamas on Oct. 7 has sparked intensive debates about everything from Israel’s detention policies to the risks posed by releasing suspected and convicted terrorists.

While many of the prisoners released or slated for release have been convicted or charged with violent crimes, pro-Palestinian activists argue that many of them have been wrongfully detained through a mechanism known as “administrative detention.”

Simultaneously, many media reports and statements by foreign officials appear to equate the hostages being released by Hamas to the prisoners being released by Israel. Some Israelis oppose the deal overall, expressing concerns about its possible impact on national security.

To understand the controversy around the issue, we need to first understand who exactly Israel is releasing.

Who is Israel releasing?

The prisoners slated for release are mostly women and teenagers from the West Bank and Gaza. A significant number of them hold Israeli ID cards, meaning they are either Israeli citizens or residents of East Jerusalem.

The various charges against them include violent acts such as stabbings, shootings, support of terrorism, incitement, threats, harm to security in the region, and interfering with the police. Many of the prisoners have multiple charges placed against them.

What is administrative detention?

Some of the released prisoners were still on trial, although many others were being held under the controversial practice of administrative detention.

Administrative detention allows the military and the defense minister to detain a suspect without the same protections offered in regular criminal trials. It can be used against both Israeli citizens and non-citizens, with non-citizen detention regulated by a military order and citizen detention regulated under civil law.

Suspects can be held in administrative detention without indictment or trial for up to six months, although this detention can be extended indefinitely by six-month periods.

Administrative detention for non-citizens can only be used in cases where there are “reasonable grounds to assume that the security of an area or public security requires that an individual be held in detention,” according to a military order on the matter.

Non-citizen detainees need to be brought before a military court to authorize the detention. However, in many cases, much of the evidence is considered classified and not provided to detainees and their attorneys, making it more difficult for them to defend themselves.

For Israeli citizens, the minister of defense issues an administrative detention order. Unlike non-citizen detainees, Israeli citizens held in administrative detention must be brought before a civil judge within 48 hours. The detention needs to be reviewed every three months and can be appealed at the Supreme Court.

As of early November, over 2,000 Palestinians were being held in administrative detention, according to the NGO HaMoked.

Administrative detention: A history of controversy

Administrative detention originated in 1945 under the British Mandate, as the British used the practice to suppress Arab and Jewish riots in the area. It was adopted into Israeli law after the founding of the State. 

In 1951, the Knesset discussed getting rid of the policy but failed to do so. During the discussions, then-opposition leader Menachem Begin railed against the practice, saying, “The law that you used is Nazi, it is tyrannical, it is immoral, and an immoral law is also an illegal law.”

“If these laws…remain in the State of Israel, the day will come when no group will remain unharmed by them,” stressed Begin at the time.

Despite Begin’s staunch opposition to administrative detention, when he became prime minister in 1977 he didn’t get rid of it. Why?

For one, administrative detention is one of the central tools available for preventing terrorist attacks.

During intensive waves of terrorism, including the Second Intifada, administrative detention has served as one of the main tools, and appears to have played a role in reducing these waves of violence to some extent.

Supreme Court Justice Yitzhak Zamir summarized the tension around the matter in one of his rulings, saying: “Administrative detention, even if it is obscene, is a necessity…the consideration of the sanctity of life outweighs the consideration of human freedom.”

(Zamir did, however, later express opposition to parts of the administrative detention process, such as the fact that often only one side has access to the evidence due to it being confidential.)

Due to the fact that administrative detention does seem to be the only option in certain cases to prevent terrorism, some analysts have suggested regulating it more strictly instead of entirely getting rid of it.

The Supreme Court has also stressed several times that security agencies need to ensure that they use administrative detention only as a last resort.

Several other countries — including Australia, the U.S., China, Egypt, India, Ireland, Japan, Jordan, Russia, and Syria — have similar administrative detention provisions, although the use of such provisions is more restricted in some of those countries. Administrative detention is used in many countries to detain illegal immigrants.

Why is the prisoner release so controversial in Israel?

The decision to release Palestinian prisoners in exchange for Israeli hostages faced staunch opposition from some Israelis, including several members of the government.

Supporters of the deal argue that every day the hostages’ lives are at risk. Many of the hostages are very young or elderly and have serious health conditions that require medical attention and medication that they haven’t received since being kidnapped.

Ministers from the Otzma Yehudit party, headed by National Security Minister Itamar Ben-Gvir, voted against the deal, saying that any deal must include all the hostages and that a ceasefire would endanger Israeli forces. The party also expressed concerns that it would be difficult for Israel to resume operations in Gaza after the ceasefire.

While Finance Minister Bezalel Smotrich’s Religious Zionist party initially opposed the deal, it voted in favor of it, after receiving reassurance that it would not affect the ongoing war effort.

The current deal has also been compared to the exchange of IDF soldier Gilad Shalit for over 1,000 Palestinian prisoners in 2011. The Palestinian prisoners released in that deal included current Hamas leader Yahya Sinwar, who orchestrated the Oct. 7 massacre.

Before Oct. 7, at least six Israelis had been killed in terrorist attacks conducted by terrorists who were released in the Shalit deal, and 80% of the released prisoners returned to terrorist activities.

Opponents of such deals argue that releasing terrorists creates a risk of further attacks by those same terrorists. Read more about the debate over the hostage deal.