Sitting before a half-empty hall on Monday morning, the Israeli High Court of Justice heard an emergency petition to release Maher al-Akhras, a Palestinian administrative detainee who has been on a hunger strike for the past 78 days.
At the end of the hearing, the three-justice panel — made up of Yael Willner, Noam Solberg, and Menachem Mazuz — doubled down on their previous proposal that al-Akhras cease his hunger strike and be released from administrative detention on Nov. 26, the day his administrative order expires. Al-Akhras rejected the proposal.
Israel’s coronavirus restrictions, it seems, were only part of the reason for the small showing in the courtroom, which comprised three members of the Joint List (Ahmad Tibi, Osama Saadi, and Yousef Jabareen) and several solidarity activists. Apart from myself, not a single journalist was there to cover the hearing.
Al-Akhras, 49, a father of six from the village of Silat al-Dahr in the occupied West Bank, was arrested on July 28. On Aug. 7, he was placed under administrative detention for four months after Israeli authorities claimed he was a “prominent operative in Islamic Jihad,” a claim al-Akhras denies outright.
He began his hunger strike on the day of his arrest and has been hospitalized at Kaplan Medical Center in Rehovot since Sept. 6, following a severe deterioration in his health. His condition caused the High Court to temporarily freeze his detention, but al-Akhras has continued his hunger strike, demanding that his detention be revoked entirely. He has repeatedly refused medical treatment.
As an administrative detainee, al-Akhras is not told what crimes he is being accused of, nor has he been shown the evidence against him or been given the opportunity to defend himself in court. The total lack of media coverage of his hunger strike is a reminder that his fate does not interest the Israeli public.
On Oct. 1, al-Akhras’ attorney, Ahlam Haddad, filed an emergency petition with the High Court, hoping it would bring about his release. The court rejected the petition based on a claim made by the Shin Bet that al-Akhras had published a video from his hospital bed the day after his detention was frozen, in which he allegedly boasted of belonging to Islamic Jihad. However, as Hagar Shezaf wrote in Haaretz, after al-Akhras’ words were transcribed and translated, it became clear that the Shin Bet’s allegations were false. But by then it was too late.
Since Monday morning’s hearing is the third in al-Akhras’ case in a relatively short period, Justice Solberg asked aloud what has changed that merits another hearing. “After all, a few days ago you [Haddad, al-Akhras’ attorney] appeared with exactly the same facts before another panel.”
This sentence alone is enough to reveal the gap between the court and Haddad. Because the legal facts have not altered since the last hearing, Solberg views no change in the situation. But as far as Haddad is concerned, the situation has shifted dramatically, since al-Akhras has entered the 78th day of his strike and is fast approaching death.
Haddad began with a rundown from the medical literature on a person’s condition after such prolonged starvation (“He’s in danger of sudden death that could come at any moment now”), before reminding the court of precisely why al-Akhras refuses to eat: “He is on hunger strike against administrative detention, in which the prisoner and his lawyer lose all tools to protect him. We have no access to confidential information, no possibility of cross-examining the source of that information.”
She continued: “The man has not been given a trial. He says he is innocent and has nothing to do with [the charges]. ‘Show me one piece of evidence that I have broken the law and then you will judge me,’ he said. I am asking you to find a solution for him. No one among us wants him to die. He’s already sustained enough irreversible damage.”
Haddad then spoke about the so-called “confidential” video — which later turned out to have been circulated on social media — upon which the court’s original decision was based.
“Once the court realized this material was open for all to see, it should have informed the defense,” Haddad said. “Between the time of the hearing and the transcription of the video, the court had already issued a verdict that indicated serious and incorrect [crimes]. There is a gap between what was said in the verdict and the transcript. The transcript shows a statement routinely given by hunger strikers. There is neither any incitement nor organizational affiliation in his comments. Had the transcript had been presented to the court, it is possible that the decision would have been different.”
The state representative in the hearing laconically responded to Haddad: “This is the third petition regarding the same arrest warrant. The court has already ruled that a hunger strike in itself does not constitute grounds for release.”
Justice Mazuz then intervened. “I did not see an order regarding restrictions that apply to [al-Akhras], because as soon as he ceased being an administrative detainee this became irrelevant, the arrest was suspended,” he said. “The argument is against the restriction that prevents him from going home. What anchors this restriction [in law] and what purpose does it serve? I know of an arrest warrant, I know of a restraining order — there are a lot of orders. I do not know of such a thing that is only implied and not explicitly written anywhere.”
When the state representative stressed that the arrest warrant against al-Akhras had been “suspended” and not revoked, Mazuz remarked: “This means that it is currently invalid, so as long as the detention order comes to an end he can be returned to detention. But what about while the detention order is suspended — what are the restrictions?”
“We read things differently,” the representative replied. “The suspended detention order has not disappeared, in the sense that its operative provisions have been suspended, yet [al-Akhras] is still subject to the provisions of the [High Court] ruling. The provisions of the ruling state that he will stay in the hospital and can receive treatment, feeding, if he wishes. The keys to his health are in his hands.”
This sentence, “The keys to his health are in his hands,” is later repeated by Justices Solberg and Willner. In other words, the State of Israel reserves the right to detain a person and hold him until the end of time without trial and without giving him the ability to defend himself, while the detainee reserves the right to starve himself to death in protest, if he so chooses.
Mazuz continued to make life difficult for the state representative: “The ruling does not create a new legal tool… You say there is no detention, but there is a restraining order. I have not seen in any ruling a legal anchor for this construction, according to which there is no detention order yet there is an order to prevent a person from going out to certain places. After all, no restriction order has been issued.”
And then, in just one question, Mazuz summed up the absurdity taking place in the courtroom: “What interest does the state have in this provision?” he asked the state representatives. “Suppose there was an order — there is also discretion. Once the arrest warrant has been suspended, what interest is served by the decision to [keep al-Akhras] at Kaplan rather than at home or in a hospital in Ramallah?”
When the state attorney repeated that the fate of al-Akhras was in his own hands, Mazuz replied: “If something happens to him, the responsibility falls on the State of Israel and all the chatter won’t do any good. If he goes home, it is his and his family’s responsibility. I just do not understand the logic behind the State of Israel suspending his detention while continuing to bear the responsibility for his fate.”
Here the state representative made an equally astonishing argument: “We did not initiate the suspension in the first place and are trying to comply with it. Suspending the order does not invalidate the order itself and allows the military commander to renew it as long as any risk exists. This suspension [allows the state] to resume detention as soon as his condition improves, and the need to send [Israeli security forces] into Ramallah to re-arrest him is a crucial consideration. For us, there has been no change that requires judicial intervention from a few days ago.”
In other words, the state representative not only admitted that the length of the administrative order is largely arbitrary, as there is a possibility that al-Akhras will either be re-arrested or have his administrative detention order extended. Furthermore, he made clear that the desire not to send occupation forces into the West Bank to detain al-Akhras again justifies keeping him in custody, even as he teeters on the edge of death.
The state representative later noted that more “confidential material” had reached the Israeli authorities, and said that the Legal Advisor to the Region of Judea and Samaria had approached the petitioner about ending the hunger strike should security officials agree not to extend the administrative order beyond Nov. 26. Al-Akhras refused the offer.
Haddad responded: “What is this new confidential material? More videos? He said out loud that he was not responsible for what [Palestinian organizations] are claiming in his name, he is not responsible for what they were talking about and is not affiliated with any organization. He just wants to get out and not die in Kaplan.”
At this point, the state representatives presented the “confidential material” to the justices, a common practice when it comes to the fate of Palestinians. And so, with Haddad’s consent, everyone left the courtroom so as not to disturb the internal Jewish Israeli discussion between the justices and the state about a Palestinian man who could die without so much as seeing a judge.
The State of Israel is not interested in taking responsibility for the death of a detainee who has never been indicted. Yet at the same time, it has difficulty backtracking. What kind of danger does a dying man pose that prevents his immediate release? That question remained unanswered.
This article was originally published in Hebrew on Local Call. Read it here.