Is Israel even allowed to detain Palestinians in the occupied territories under international law?

Tazeen Hasan reflects on this question and explores Canada's complicity in Israeli war crimes.

While working on cases of Palestinian children detained under Israeli military detention since 2022, I have often encountered heartbreaking stories of injustice and resilience. Today, a colleague from the JFA Media Monitoring Cell asked me an intriguing question: "Is Israel even allowed to detain Palestinians in the occupied territories under international law?"

This question lingered with me, prompting deeper reflection. The answer is complex. Yes, international law allows an occupying power to detain individuals under certain conditions. However, Israel’s practices go far beyond what the law permits, resulting in systematic violations. The following points are the outcome of that brainstorming session and further research, shedding light on the ways Israel contravenes international law in its detention policies.

International law does permit Israel, as an occupying power, to detain individuals in the occupied Palestinian territories, but only under strict legal safeguards and due process. Yet, Israel’s detention practices consistently flout these legal protections, resulting in widespread violations of international law.

This issue is particularly alarming when we consider the human cost. From the arbitrary use of administrative detention to the forcible transfer of detainees and the inhumane treatment of minors, Israel's policies not only disregard international legal standards but also strip individuals of their basic dignity and rights. This article delves into the ways these practices undermine the very principles of justice and fairness that international law seeks to uphold.

1. Administrative Detention: Detention Without Charge or Trial

Under international law, administrative detention is allowed only in exceptional circumstances, such as when public security is at immediate risk. However, Israel uses this measure extensively, holding Palestinians, including minors, for months or years without charges or trial. This practice violates Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits arbitrary detention.

2. Lack of Transparency

Many administrative detentions are based on secret evidence that detainees and their lawyers cannot access. This denial of transparency violates Article 14 of the ICCPR, which guarantees the right to a fair defense.

3. Violation of Due Process

International law mandates that detainees are entitled to due process, including the right to know the charges against them, access to legal representation, and a fair trial. Israel’s detention practices systematically deny these rights, breaching Articles 9 and 14 of the ICCPR.

4. Transferring Detainees to Israel

Article 76 of the Fourth Geneva Convention prohibits transferring detainees from occupied territories to the territory of the occupying power. Israel routinely moves Palestinian prisoners to facilities within its borders, separating them from their families and violating this key provision of international humanitarian law.

5. Lack of Fair Trials in Military Courts

Palestinians in the occupied territories are tried in military courts with extremely high conviction rates, often exceeding 99%. These courts lack impartiality and fail to meet the standards of fair trial procedures, violating fundamental rights protected under international law.

6. Imprisonment of Minors Under Military Detention

Israel is the only country in the world that systematically prosecutes children in military courts. Palestinian minors are often arrested during night raids, interrogated without the presence of a lawyer or guardian, and subjected to intimidation. This contravenes international conventions, including the Convention on the Rights of the Child. Israel’s use of administrative detention against Palestinian minors violates the CRC, which emphasizes that detention should only be a last resort and for the shortest appropriate period. Subjecting children to such detention without charge contravenes their rights to protection and rehabilitation.

7. Torture and Inhumane Treatment of Minors

Reports from human rights organizations have documented cases of physical and psychological abuse of detained Palestinian minors, including beatings, threats, and solitary confinement. Such treatment violates the Convention Against Torture and other international human rights treaties.

8. Mass Arbitrary Detentions

Israel’s policy of mass arrests, particularly during periods of heightened tensions, often targets civilians, activists, and children indiscriminately. These widespread and arbitrary detentions violate the prohibition on collective punishment under the Fourth Geneva Convention.


9. Practice of Apartheid

One of the most striking aspects of Israel’s detention system is the stark disparity in how Palestinians and Israeli settlers are treated under the law. Palestinian civilians, including minors, are prosecuted in Israeli military courts, which lack basic guarantees of fairness and impartiality.

In contrast, Israeli settlers—who are living in illegal settlements on Palestinian land—are prosecuted under Israel’s civil legal system, which offers greater protections and rights. This dual legal system amounts to a practice of legal apartheid, where one group is afforded rights and protections under civil law, while another group is subjected to military law, with fewer safeguards and a lack of basic judicial protections.

This discriminatory legal framework is not only an injustice but also a violation of international law. The United Nations, the European Union, and various human rights organizations, including Amnesty International, have recognized Israel’s policies as a form of apartheid, as defined under the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973). This convention defines apartheid as an inhuman act committed to maintaining the domination of one racial group over another and systematically oppressing them, which is precisely what Israel’s treatment of Palestinians amounts to.

While international law permits Israel to detain individuals under strict conditions, its practices overwhelmingly violate these legal standards. From administrative detention and lack of transparency to the mistreatment of minors and the transfer of detainees, Israel’s detention policies amount to systematic violations of international law.

In conclusion, Israel’s practices of administrative detention, transferring detainees outside occupied territories, and the treatment of minors flagrantly violate several international legal norms. These include the Fourth Geneva Convention (Articles 49 and 76), the International Covenant on Civil and Political Rights (Articles 9 and 14), the Convention on the Rights of the Child (Article 37), the Convention Against Torture (Articles 1 and 16), and customary international humanitarian law. Such violations not only undermine the principles of justice but also perpetuate the suffering of vulnerable populations. Furthermore, the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) also come into play when considering Israel’s dual legal system, where Palestinians are prosecuted under military courts, while Israeli settlers are tried under civilian law.

These grave breaches demand urgent international attention and accountability. It is imperative for the global community to ensure that international law is upheld and to advocate for the rights, safety, and dignity of those living under occupation.

As Canadians, we must confront the uncomfortable truth that our government is complicit in Israel’s systematic violations of international law. By maintaining strong diplomatic ties with a state that perpetrates these breaches, engaging in trade relations, and supplying and purchasing arms and ammunition, Canada lends tacit approval to these actions. Moreover, by licensing charities that funnel donations to support and expand illegal settlements in the West Bank and East Jerusalem—and by granting these charities tax-exempt status for decades—our government has effectively subsidized these illegal activities with taxpayer money.
When far-right Israeli politicians like Naftali Bennett—a figure whose actions could constitute war crimes under the Rome Statute—are permitted to enter Canada and speak at events such as Israel at 75, our government disregards its own legal and moral obligations. Despite urgent calls from human rights advocates demanding the enforcement of Canadian laws that bar war criminals from entering our borders, these appeals fall on deaf ears.

Even more troubling is the fact that Canadian taxpayer dollars are indirectly complicit. Through programs like RCMP training for Palestinian Authority forces, our resources are used to bolster oppressive structures aimed at suppressing Palestinian resistance in the West Bank. This makes Canadian citizens, albeit inadvertently, co-participants in the perpetuation of these injustices.

We must recognize that silence and inaction make us complicit. It is imperative that we hold our government accountable, demanding an unwavering commitment to international law, human rights, and ethical governance. To remain indifferent is to betray the very principles of justice and equality that Canada claims to uphold.

Tazeen Hasan is a seasoned human rights policy analyst and Advocacy Manager for Western Canada at Justice For All Canada. With extensive journalism experience spanning the Middle East, South Asia, and North America, she has also contributed chapters to two books published in Canada. In 2020, she was honored with the Harvard Spotlight Award for her groundbreaking research on the Uyghur genocide. A frequent speaker at United Nations forums in Geneva and New York, Tazeen reported from Jenin, Palestine, amidst the ongoing Gaza genocide in December 2023.