Maher Akhras and the struggle against administrative detention
For a moment it looked as if Maher’s life was saved. Supreme Court Justice Menachem Mazuz was relentless. Again and again, he asked the state representative to cite the legal basis for denying Maher his wish to be transferred to a hospital in the Palestinian Occupied Territories, where his children would be able to visit him while recovering; for at the moment, only his wife is permitted to enter Israel and sit at his bedside. After all, Maher al-Akhras’ arrest warrant had been suspended, he is no longer detained, so what is the legal tool enabling a “restraining order” which prevents him from choosing where he’d be hospitalized? And then there’s the further question, Mazuz insisted, about the point of all this: “I just do not understand the logic behind the State of Israel suspending his detention while continuing to bear the responsibility for his fate”, he noted.
Wise words. To understand them, we need to start at the beginning. Maher al-Akhras, a 49-year-old father of six from the Palestinian village of Silat ad-Dhahr in the occupied West Bank, was arrested on 28 July 2020. This was his fifth arrest. He was first arrested by the Israeli occupying army in 1989, when he was 18, and then again in 2004. In 2009, al-Akhras was administratively detained for 16 months, and again in 2018 for a period of 11 months. Just a few months after his last release, he was rearrested, and an administrative detention warrant for four months was again issued against him. On the day of his arrest, 27th July, Maher declared he was going on an open hunger strike, until his release. He hasn’t eaten anything since, and has only consumed water. As his health condition has worsened, al-Akhras was transferred from the prison infirmary to the Kaplan Medical Center inside Israel; and following a further deterioration of his health, the Israeli High Court of Justice decided to suspend his arrest until he recovers, once he resumes a normal diet. However, despite the detention order’s suspension, the Israeli authorities refused his request to be transferred to a hospital in the OPT. For Maher, this “suspension” is only a semantical trick, then: he is still captured in the hands of the Israeli security authorities. Hence the appeal which was heard at the HCJ.
Both the state representatives and Justices Noam Solberg and Yael Vilner claimed that it is up to al-Akhras to decide whether he lives or dies: “the keys to his health are in his hands”, they kept saying. But Maher, who is on the verge of dying, does not at all wish to die. He is not committing suicide. He protests, with the only tool left for him: his body, his organs, his life. All he asks is that his essential human freedom would be respected, even under the unacceptable political conditions he is subjected to. Maher’s obvious wish is to live as a free citizen in his own country – but that is not what he currently fights for. His understandable wish is that the laws he obeys would not be those of a military regime which regards his very existence as a security threat. But even that is not what he currently fights for. He does not presently challenge the authority of the Israeli military law or that of the military commander determining which political organization or verbal expression would be deemed “legal” and which would not. His only wish at present is that under the military regime which has been governing his country for decades with no end in sight, he would know what he is blamed for, what the evidence for the allegations are and for how long is his imprisonment going to last. Yet these basic demands are denied under the administrative detention order. Thus, the keys he is holding lead only to two options: death or a dehumanizing, unjust imprisonment.
Israel has employed the administrative detention measure for dozens of years. While, in 2001-2, it had more than 1,000 Palestinians detained at the same time under the administrative order, in recent years the average per month is around 500. Currently, there are 350 administrative detainees in Israeli prisons. All of them Palestinians. Administrative detainees are never put to trial. The reasons leading to their arrest are based on classified evidence and are never exposed to them or their lawyers, hence they cannot defend themselves in court. Moreover, administrative detainees never know when they will be released, as the regional military commander can extend their detention order indefinitely. In many cases the detention period reaches 2 years; in the worst cases – even 5 and 6 years. No indictment, no trial, no chance for self-defense, no hope of an imminent release.
In Maher al-Akhras’ case, the only vague and unsubstantiated accusation which the Shin-Bet agrees to disclose is that he is a “prominent operative in Islamic Jihad”, active in “incitement”. Al-Akhras denies this allegation forcefully. But, again, this whole discourse is unsubstantiated, as there is no genuine court procedure.
Now we may go back to the HCJ hearing. After discussing the matter with both sides and meeting the Shin-Bet representatives behind closed doors, the three Justices decided unanimously (yes, Mazuz included) to reject Maher al-Akhras’ appeal and deny his request to be transferred to a Palestinian hospital. They did repeat a suggestion refused by Maher several days earlier: that if he stops his hunger-strike, the administrative detention order will not be renewed on 26th November, when the present one expires. The reasoning is as follows: if Maher recovers at home, or in a Palestinian hospital, the Israeli authorities will not be able to monitor his health condition and decide whether he resumes his status as a “security threat” whose detention order should be revived. It is this bizarre argument whose legal basis and motivation was questioned by Justice Mazuz. And rightly so. For, even ignoring the legal context, the evil of administrative detention and the staggering fact that it is a man’s life that is at stake here, we may still ask: when exactly is Maher supposed to be a “threat”, given his present catastrophic health condition on the one hand, and the promise to release him on 26th November, on the other? Or should we assume – as experience advises us to do – that the intention is to arrest Maher again once he’s healthy enough?
Maher’s life wasn’t saved in the High Court. The Justices could not see that it is an individual person, a man on the brink of dying, who was appealing. They could not let go of their “security” clichés and the Shin-Bet manipulations. Or maybe they did, and didn’t really care. After all, we cannot ignore the fact that the Court has been gradually captured by the hard right (Solberg and Vilner included) and the extent to which a ruling like this one, essentially abdicating the court's role, tracks with the refusal of the courts to address the legality of the occupation, and makes a huge hole in the fiction of rule of law and democracy in Israel.
Maher’s case is only an extreme and painful example of the arbitrariness, inhumanity and illegality of the whole procedure of administrative detention, which stems from the automatic classification of all Palestinians as threats, not worthy of a just procedure, and from a refusal to acknowledge them as individuals whose lives matter and as political agents whose aspirations are legitimate. This case should also serve as a reminder that Israeli courts are far from being the independent and credible institution people around the world expect them to be.
Here, both in the particular case and the general one, is where the international community is required to intervene: it should urgently demand that Maher al-Akhras be promptly released; it must clarify to Israel that its oft used tool of arbitrary administrative detention cannot be accepted, being undemocratic, illegal, and primarily inhumane; and it should acknowledge the thoroughly undemocratic character of Israel, which continues – for dozens of years, and probably indefinitely – to sustain an illegal occupation and oppress the Palestinian people.