When Palestinian fighter group Hamas attacked southern Israel on October 7 and took more than 200 civilians and soldiers as hostages, the group said it aimed to free thousands of Palestinians locked up inside Israeli jails in return.

As part of a week-long truce deal, Israel released 240 Palestinian women and children from its jails. More than half were detained without charge, according to Israel’s records.

Israeli authorities categorise all prisoners released as “terrorists”. However, most of them were never even charged with anything — while some were detained for “throwing stones” or “carrying knives” or “attempted murder”.

Hanan Barghouti, aged 59 and the oldest female prisoner to be freed, was one of the prisoners held indefinitely by Israeli authorities without facing any formal charges.

While Israel released these prisoners, it simultaneously arrested more than 260 Palestinians in the occupied West Bank, the Palestinian Prisoners Society said.

There are 19 prisons within Israel and one inside the occupied West Bank that hold Palestinian prisoners. According to the Fourth Geneva Convention, it’s illegal for an occupying force to move people from the occupied territory, but these prisons do exactly that.

A record number of Palestinians from the occupied West Bank are being held without charge or trial, said a statement by the UN Human Rights Office in the occupied Palestinian territories.

Within two months, six Palestinian men have died in Israeli custody, the highest number of cases in such a short period in decades.

But why are thousands of Palestinians behind Israeli bars in the first place? To understand this, we must explore the judicial and legal system that dictates what many call an ‘apartheid’ state.

Despite the Oslo Accords giving the Palestinian Authority (PA) the right to govern the West Bank, Israel maintains significant control in the region and allows illegal settlements on Palestinian lands.

While the PA has its legal framework, the three million Palestinians in occupied territories find themselves facing Israeli military courts if accused of actions perceived as threats to Israeli security.

Accusations often encompass “terrorist” activities, which encompass actions against Israeli soldiers or settlers, and “incitement,” involving influencing public opinion. Minor offences such as traffic violations or unauthorised work in Israel also lead Palestinians into the military justice system, which boasts a conviction rate of 99 per cent.

One in five Palestinians have faced arrest and charges under the 1,600 military orders regulating the lives of those under Israeli military occupation. This rate of incarceration doubles for Palestinian men, with 40 per cent having experienced arrest.

In contrast, in the United States, known for having the world’s largest prison population, only one in every 200 people is imprisoned.

Unlike Palestinians, Israeli settlers apprehended in the West Bank face trials in civilian courts within Israel since the late 1970s. This is based on the Emergency Regulations Law (West Bank and Gaza — Criminal Jurisdiction and Legal Assistance) 1967, extending Israeli civil law over Israeli citizens in the occupied Palestinian territories.

A similar military order applicable to the Gaza Strip was annulled with the “disengagement” plan in September 2005 but continues to be employed in the occupied West Bank.

This practice has effectively established dual legal systems, criticised by human rights groups as discriminatory and therefore, likened to a form of “apartheid.”

Apartheid in numbers

Even before October 7, 5,200 Palestinians, including 33 women and 170 children were behind Israeli bars, Al Jazeera reported. Just this year, the number of detainees without any charge went over 1,200 in the occupied West Bank, the highest in three decades prior to the Hamas attack, according to the Israeli human rights organisation HaMoked.

The number surged from 1,319 on October 1 to 2,070 by November 1, nearly constituting a third of the overall Palestinian prisoner population.

The number of arrests after October went over 3,365, mostly in the West Bank, reported the Palestinian Prisoners Society, making the total Palestinian prison population held by Israel reach around a staggering 7,000, AFP reported.

No charge

Detainees, 99 per cent of whom are Palestinians, the majority appear to be held in administrative detention — a form of imprisonment lacking formal charges or trial that authorities have the power to extend indefinitely.

It is done based on secret security grounds that the defendant and their lawyer cannot review, preventing due process and depriving the defendant of their freedom under international law.

While not prohibited under international humanitarian law, administrative detention is considered lawful only when used for compelling security purposes.

Israel’s frequent and deeply discriminatory use of administrative detention renders it arbitrary, breaching both international human rights and humanitarian law, evidenced by the fact that, as of the end of September 2023, 1,310 Palestinians were in administrative detention in Israel.

Amnesty International found that Israel consistently employs administrative detention as a method to oppress Palestinians, rather than employing it as an exceptional and judiciously applied precautionary measure.

“Administrative detention is one of the key tools through which Israel has enforced its system of apartheid against Palestinians,” Heba Morayef, Amnesty International’s regional director for the Middle East and North Africa, said in a statement.

“Administrative detainees are held based on temporary orders lasting up to six months, issued by a military commander under Chapter I, Article B of Military Order 1651. These orders are given if there are “reasonable grounds” to believe an individual poses a risk to the “security of the area” or “public security.”

“The terms used are not explicitly defined, leaving interpretation to military commanders’ discretion. These detention orders can be extended for another six months repeatedly, without limit, effectively allowing indefinite detention,” stated Amnesty International in another report.

A million prisoners

Since occupying East Jerusalem, the West Bank and the Gaza Strip in 1967, Israel has arrested around one million Palestinians, revealed a UN report last year.

On October 31, Israeli authorities prolonged the “state of emergency in prisons” by an additional month which gives the national security minister extensive authority to restrict sentenced prisoners’ access to visits from both lawyers and family members, to confine detainees in overcrowded cells, to prevent outdoor exercise, and to enforce severe collective penalties, including prolonged water and electricity cuts.

These measures effectively lead to heightened cruel and inhumane treatment of detainees, violating the prohibition of torture and other forms of ill-treatment.

Children in jails

Israeli legislation allows for the imprisonment of children as young as 12 for a maximum of six months. These minors are placed in military prisons alongside adults.

The Israel Prison Service detained 146 Palestinian children on security-related grounds as of September, reported Israeli human rights group B’Tselem.

Since the outbreak of the second Intifada in 2000, over 12,000 Palestinian children have been detained by Israeli forces.

Most Palestinian children are arrested on suspicion, without arrest warrants, noted Defense for Children International.

“In an overwhelming majority of the cases Israeli authorities systematically fail to invoke any legal basis justifying the deprivation of liberty of Palestinian children arrested from the occupied West Bank which constitutes arbitrary detention in violation of international law,” the human rights group concluded in June this year.

Many of the children are held for stone throwing, it said, an offence that carries a maximum penalty of 20 years in prison under Israeli law.

Around 500 to 1,000 children are detained in Israeli military custody annually, a Save the Children report released earlier this year indicated.

According to rights groups Addameer and Defense for Children International — Palestine (DCIP), every year, some 700 Palestinian children under the age of 18 from the occupied West Bank are prosecuted through Israeli military courts, which boast a conviction rate of 99.7 per cent.

Upon arrest, 42 per cent of these children sustained injuries, such as gunshot wounds and broken bones. Additionally, 65 per cent of arrests occurred during the night, mostly between midnight and dawn. Half of these detentions happened in the children’s own homes.

Palestinian children are “the only children in the world who are systematically prosecuted in military courts” and an estimated 10,000 have been held in the Israeli military detention system over the past 20 years, according to Save the Children earlier this year.

Laws against Palestinian adults and children

Israeli authorities used the “Unlawful Combatants” Law, a classification not recognised under international law, to indefinitely detain, without charge or trial, at least 105 Palestinians from Gaza who entered Israel during the October 7 attack led by Hamas.

The introduction of the Internment of Unlawful Combatants Law in 2002 aimed to facilitate the administrative detention of foreign nationals. However, over time, it has also been utilised to detain individuals from Gaza, found Amnesty International.

The Military Order 1651, which replaced various earlier orders including Military Order 378, theoretically applies to all in the occupied West Bank, including Palestinian residents, Israeli citizens (Jewish settlers and Palestinian citizens of Israel in the West Bank), and foreigners.

However, Amnesty International hasn’t recorded cases where clauses 284 to 294 of Military Order 1651, allowing for administrative detention, were employed against Jewish citizens of Israel.

Laws like Military Order 1726 allow the detention of children without charge for a maximum of 15 days, extendable up to 10 days, and this extension can be repeated up to 40 times (almost 1 year 8 months).

Meanwhile, Military Order 1745 mandates the audiovisual recording of interrogations involving children, with the exception being those arrested under security justifications, primarily Palestinian children.

In the past, Military Order 132 subjected Palestinian children aged 16 and above to trial in Israeli military courts as adults.

These orders delineate a legal framework that significantly impacts the treatment and legal status of Palestinian children within the Israeli military justice system.

“The power to incarcerate people who have not been convicted or even charged with anything for lengthy periods of time, based on secret ‘evidence’ that they cannot challenge, is an extreme power,” pointed out B’Tselem.

“Israel uses it continuously and extensively, routinely holding hundreds of Palestinians at any given moment.”

Header image: Israeli army soldiers detain a Palestinian during their clash with Palestinians in Hebron, the Israeli-occupied West Bank, Palestine, August 26, 2022. — Reuters