By Ivana Kottasová, Barbara Arvanitidis, Nima Elbagir, Abeer Salman and Alex Platt, CNN
(CNN) — The release of Palestinian prisoners by Israel, as part of a deal with Hamas to free hostages held in Gaza, has put a spotlight on a controversial practice that allows Palestinians to be detained for indefinite periods without trial or charge.
As of Wednesday, Israel had released 180 Palestinian prisoners and detainees and Hamas had released 81 hostages.
The majority of Palestinians released so far – 128 of the 180, according to information published online by the Israeli Ministry of Justice – were detained and hadn’t been charged, put on trial or given an opportunity to defend themselves. Some say they weren’t even told why they were being detained.
The Israel Prison Service told CNN that the prisoners who were released as part of the deal “were serving time for serious crimes, such as attempted murder, assault, and throwing explosives.” But information provided by the Israeli authorities reveals that most hadn’t been charged or convicted.
Israel has been operating two distinct justice systems in the West Bank since it captured the area in 1967. Palestinians living there fall under the jurisdiction of Israel’s military court system, where judges and prosecutors are uniformed Israeli soldiers. Meanwhile, Jewish settlers there are subject to civilian courts.
A legal adviser at the Israel Defense Forces’ International Law Department told CNN on Wednesday that the different systems were in place because under international law, Israel is not allowed to “export” its own legal system to the West Bank.
B’Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, a non-governmental organization, says the courts “serve as one of the central systems maintaining Israel’s control over the Palestinian people.”
Fatima Shahin, a 33-year-old from the West Bank city of Bethlehem, was one of the 39 Palestinians released on Friday. Authorities accused her of attempted murder of an Israeli in the occupied West Bank, which she denies.
At the time of her release, she says she was unaware that a formal indictment had been drawn up in her case.
Shahin said that while in detention, she was denied access to a lawyer and was barred from speaking to her family, as she recovered from life-changing injuries that she suffered during her arrest.
“They accused me of carrying out a stabbing. It’s not true. They opened fire (at) me. I was hit in the spine with two bullets… I have partial paralysis. I cannot feel my legs or stand up,” she told CNN.
Before the truce came into effect last week, the Israeli Ministry of Justice published online a list of 300 Palestinian prisoners and detainees eligible for release under the exchange agreement. The document listed the crime of which the individuals were accused and information on whether they were sentenced or charged.
According to the list, a majority hadn’t been charged or sentenced for any crime.
Instead, according to the document, some were either detained or held under administrative detention, a controversial procedure that allows Israeli authorities to hold people indefinitely on security grounds without trial or charge, sometimes based on evidence that isn’t made public. Shahin was listed in the document as “detained.” The document is no longer online.
The practice is also used by Israel as a preventative measure: people are detained not for what they have done, but for future offenses they allegedly planned to commit.
Many of the detainees held under the policy have no idea why they are being imprisoned, because evidence against them is classified.
“This leaves the detainees helpless – facing unknown allegations with no way to disprove them, not knowing when they will be released, and without being charged, tried or convicted,” according to B’Tselem.
Under Israeli law, people can be held in administrative detention for up to six months, but the term can be renewed indefinitely.
According to data obtained from the Israel Prison Service (IPS) by B’Tselem, of the more than 1,300 Palestinians that were held in administrative detention as of September, about half had been detained for more than six months.
The IDF legal adviser said that the administrative detention law is in line with international law frameworks and complies with the Geneva Convention. However, asked by CNN about the widespread international criticism of the way Israel uses the administrative detention law, the official, who was speaking in general terms and is not involved with the implementation of the law, admitted it was possible that in some cases it was used in a “heavy-handed” way.
Israel has been widely criticized for its use of the policy. When prominent Palestinian activist and former Islamic Jihad spokesperson Khader Adnan died in Israeli prison after an 87-day hunger strike in May, UN experts called on Israel to end the practice, calling it “cruel” and “inhumane.”
Adnan became a symbol of Palestinian resistance to Israeli detention policies after spending a total of eight years in Israeli jails, mostly under administrative detention. He was never sentenced.
Despite the criticism, the number of administrative detainees held in Israeli facilities has been rising steadily.
As of September, the number was at its highest in more than three decades, surpassing the previous record set at the height of the Second Palestinian Intifada (uprising) in 2003, according to data obtained by B’Tselem and HaMoked, an Israeli NGO that focuses on human rights law and provides free legal aid to Palestinians.
Children in detention
The events of recent days have also put the spotlight on another issue that Israel has been criticized for: the detention of children aged 18 or younger.
According to B’Tselem, the Israel Prison Service was holding 146 Palestinian minors on what it defined as security grounds as of September.
Under Israeli law, children as young as 12 can be imprisoned for up to six months. Minors are sent to military prisons alongside adults.
A majority of those released so far through the exchange deal are teenagers between the ages of 16 and 18, but Israel’s list of people eligible for release also includes five 14-year-olds and seven 15-year-olds.
Malak Salman was 16 when she was arrested in 2016 for an alleged attempted stabbing of an Israeli police officer in Jerusalem. Israeli authorities said no one was injured, but she was convicted of attempted murder and sentenced to 10 years in a military prison. After an appeal, the sentence was reduced to nine years.
Salman was one of the prisoners released on Friday, after serving almost eight of those nine years. She was finally reunited with her family in Jerusalem, but her family wasn’t allowed to celebrate.
“The Israeli authorities were with us from 2 p.m. They surrounded the house and ripped down the decorations of any display of celebration. They stole the joy of my daughter’s release,” Fatima Salman, Malak’s mother, told CNN.
Israeli authorities have banned celebrations surrounding the releases of the Palestinian prisoners after Israeli National Security Minister Itamar Ben Gvir said that “expressions of joy are a support for terrorism” and that “celebrations of victory give strength to those same human scum.” Ben Gvir was previously convicted of inciting racism against Arabs and supporting a terrorist organization.
Since the deadly October 7 terror attacks by Hamas on Israel, Israel Police have used the Counter Terrorism Law to widen a crackdown on Palestinians.
Article 24 of this legislation states that anyone who does anything to “empathize with a terror group” whether that is by “publishing praises, support or encouraging, waving a flag, showing or publishing a symbol” can be arrested and jailed for up to three years.
After the Hamas attacks last month, Palestinians have been arrested after expressing solidarity with civilians in Gaza and sharing verses from Quran on social media, among other reasons.
Responding to a question from CNN on the increase in arrests over social media posts, Israel Police said last month that while it “firmly upholds the fundamental right to freedom of speech, it is imperative to address those who exploit this right to perilously incite violence.”
Referring to celebrations by the families of freed detainees, Ben Gvir said on Thursday that “the policy here is very, very, very clear – not to allow these expressions of joy, and resolutely strive to make contact and stop any support for these Nazis.”
Like the rest of the Palestinians held by Israel, children are put through the Israeli military court system, which means their rights are limited and not in line with international juvenile justice system standards.
According to a report by Save the Children earlier this year, between an estimated 500 and 1,000 children are held in Israeli military detention each year.
Many of the children are held for stone throwing, it said, an offense that carries a maximum penalty of 20 years in prison under Israeli law.
Earlier this year, the organization said that its survey of Palestinian children detained by the Israeli military showed that 86% reported being beaten, 70% said they were threatened with harm and 69% reported being strip searched during interrogation.
CORRECTION: An earlier version of this story stated that Fatima Shahin was held without charge, based on information supplied by the Israeli Ministry of Justice. That information was incorrect. The story has been updated to note that Shahin was indicted, a fact she says she was unaware of at the time of her release.
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