Ideas Imprisoned - Part III: International Legal Norms

Ideas Imprisoned - Part III: International Legal Norms

J. David Thompson

SWJ Note - This is a multipart series exploring administrative detention in Israel and the occupied Palestinian territory.

Ideas Imprisoned: Administrative Detention in the Occupied Palestinian Territory, Conditions of Imprisonment, and the Role of the International Community (Introduction to 5 Parts)

Ideas Imprisoned - Part I: Administrative Detention

Ideas Imprisoned - Part II: Conditions of Imprisonment

Administrative detention is permitted under international humanitarian law and human rights law; however, there are severe restrictions for its use.[i] Humanitarian law and human rights law form the standard for application of administrative detention during war and armed conflict.[ii] The Special Rapporteur on the situation of human rights in the Palestinian territory noted that the Government of Israel fails to adhere to this narrow set of circumstances.[iii] Deprivation of liberty must not be arbitrary.[iv] In criminal charges, everyone is entitled to a fair and public hearing by an independent, impartial tribunal.[v] Administrative detention is often used against persons that the State may deem a threat to the State’s cause; however, everyone has the right to freedom of opinion and expression[vi] along with the right to assemble.[vii] Many rights overlap between humanitarian law and human rights law. Humanitarian law applies during times of war, and human rights law applies continuously. Both humanitarian law and human rights law have a place in international criminal law.

Human Rights Treaties

With some variance of language and wording, the major human rights treaties[viii] all state that the deprivation of liberty must be carried out in accordance with the law.

International Covenant on Civil and Political Rights. The Government of Israel signed the International Covenant on Civil and Political Rights (ICCPR) in 1966 then ratified it in 1991.[ix] The applicable articles from the ICCPR include: Articles 4, 9, and 14. The ICCPR protects individuals against arbitrary arrest and detention.[x] The Government of Israel made a reservation; however, the reservation is not relevant to administrative detention.[xi] Arbitrariness is broader than simply being “against the law.” It expounds to include “inappropriateness, injustice, lack of predictability and due process of law.”[xii] The European Court of Human Rights held that the information should satisfy an objective observer; however, what is reasonable may vary based on circumstances.[xiii] The “reasonableness” standard should provide a safeguard from arbitrariness.[xiv]

The Committee took special steps to signify that the ICCPR applies to all forms of incarceration and detention.[xv] “[T]he Committee points out that paragraph 1 is applicable to all deprivations of liberty.”[xvi] Furthermore, the Committee specifically speaks to preventative detention for security matters in the General Comments of the Sixteenth Session. The same provisions of traditional incarceration apply to administrative detention in that it must not be arbitrary, reasons for detention must be provided, court control of detention, and there must be compensation for a breach.[xvii] While Article 9(3) only requires that detaining authorities promptly bring persons before a judge, the Committee notes that it should not exceed a few days.[xviii] If not well outside the “few days” standard, the eight-day requirement[xix] is at least on the upper limits.

As the occupying power, the Government of Israel must ensure that all peoples subject to its jurisdiction receive the rights guaranteed in the ICCPR.[xx] The Government of Israel, though, maintains a position of in-applicability of the requirements under the ICCPR to the occupied Palestinian territory (oPt).[xxi] It further claims a state of emergency, which it has since 1948, for the occupied territory.[xxii] The ICCPR requires that even in a state of emergency, State parties only implement measures “to the extent strictly required” and that “measures are not inconsistent with . . . obligations under international law,” which prohibit discriminating solely on account of “race, colour, sex, language, religion or social origin.”[xxiii] A state of emergency allows State parties to suspend certain rights. State parties cannot suspend non-derogable rights[xxiv] even during a state of emergency.[xxv] Emergency is, and has been, the norm as a means to circumventing obligations under international law.

The ICCPR provides standards for criminal proceedings.[xxvi] The requirements under Article 14 of the ICCPR for criminal proceedings include a fair and public hearing, public availability of results, presumption of innocence, the right to be informed of charges, adequate time and facilities to prepare a defense, legal assistance, right to examine or to have examined the witnesses against him, and the right to review.[xxvii] The Government of Israel could make the counter-argument that the proceedings are administrative, not criminal; however, as noted, there is strong reason to believe that the Government of Israel uses administrative detention to circumvent the requirements under criminal law. As outlined in the process above, there are serious shortcomings between what is required and what happens. Hearings are closed. The standards to overturn make a presumption of innocence null. The Government withholds accusations and evidence against the accused. There is no opportunity to confront witnesses.

Israeli Security Forces use what is supposed to be limited for the extreme as the standard application. Abuses to the right to freedom of opinion and expression[xxviii] along with the right to assemble[xxix] become paramount. Unfavorable opinions and assemblies, which are both basic human rights, become grounds for administrative detention.

Convention on Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. The Government of Israel signed the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1986, and the Government of Israel ratified the convention in 1991.[xxx] Israeli Security Forces hold administrative detainees with the general prison population in those prisons. Therefore, while this section addresses detainees as a whole, there is no reason to suspect that administrative detainees are free of some of the conditions of other detainees. The Government of Israel, in contravention to international law and Article 2 of this very treaty, refuses to apply the CAT to the occupied territory.[xxxi]

The CAT expressed concern about the resort to administrative detention in its 1998 report.[xxxii] The Government of Israel stated that it uses “physical pressure” against detainees[xxxiii] to include “hooding, shackling in painful positions, sleep deprivation, and shaking of detainees.”[xxxiv] The High Court of Justice of Israel limited the use of torture in 1999.[xxxv] Although, the Government of Israel failed to legally define and criminalize torture in accordance with Article 1.[xxxvi] As shown above, force-feeding constitutes cruel, inhuman and degrading treatment and may amount to torture. Generally, UN treaties do not specifically mention force-feeding; however, the pain, anguish, and disrespect for individual autonomy violates Article 2(2) of the CAT.[xxxvii]

While administrative detainees receive medical attention, the medical officer works for the Israeli Prison Services instead of the patient.[xxxviii] This compromises the medical official’s independence, and it creates problems of dual loyalty.[xxxix] The Committee expressed concern that the Government of Israel holds administrative detainees indefinitely without learning of the charges against him or her.[xl] The Government of Israel continues this practice, though.

Convention on the Rights of the Child. The Government of Israel ratified the Convention on the Rights of the Child (CRC) in 1991 without any reservations.[xli] The International Court of Justice (ICJ) determined that the CRC applies to the oPt;[xlii] however, the Government of Israel refuses to comply with this legal ruling.[xliii] The CRC defines a child as someone below the age of eighteen (18),[xliv] and the Committee noted that the Government of Israel applied this legal norm in September 2011.[xlv] In courts of law, the best interest of the child shall be the primary concern.[xlvi] This is of particular recent relevance because the Government of Israel charged a sixteen (16) year-old Palestinian activist with multiple charges that could equate to eleven (11) years in prison.[xlvii] Also, the IPS holds several children in solitary confinement.[xlviii]

Humanitarian Law

Humanitarian law regulates, amongst other things, the conduct of the occupying power and how the occupying power must treat people in occupied territories. In addition to human rights law, it forms the baseline for how parties must act during times of conflict. Humanitarian law provides specificity on obligations regarding due process procedure, family contact, conditions of imprisonment, special rules for women and children, and more.

Fourth Geneva Conventions (1949). The Fourth Geneva Conventions applies to total or partial occupation of a territory even if one State does not recognize the war.[xlix] Even if the armed conflict is not of an international character, Article 3 provides certain minimum standards of conduct.[l] Further, Article 27 states that in all circumstances people are afforded certain rights and respects.[li] The United Nations Security Council and the International Court of Justice confirmed the applicability of the Fourth Geneva Conventions to the oPt numerous times.[lii] The applicability of the Fourth Geneva Conventions is almost unanimously accepted.

Articles 42 and 78 permit administrative detention in certain situations. Article 42 permits administrative detention only when “absolutely necessary.”[liii] Article 78 permits administrative detention when “necessary, for imperative reasons of security.” Article 78 requires a right of appeal subject to periodic review (recommended at six months).[liv]

The tension comes at “absolute necessity” and “necessary, for imperative reasons of security.” Given the sheer amount of Palestinian administrative detainees, the Government of Israel may have trouble justifying the practice. It seems likely that the Government of Israel uses administrative detention to circumvent criminal prosecution or as a means of silencing dissenters.

The Government of Israel ratified the Fourth Geneva Conventions in 1951 with no relevant reservations.[lv] 

Additional Protocols to the Geneva Conventions (1977). The Government of Israel did not ratify the Additional Protocols to the Geneva Conventions (1977).[lvi] Article 1(4) gives protection for people “fighting against colonial domination and alien occupation” in the exercise of the “right of self-determination.”[lvii] Article 75, which many recognize as customary international law, places severe limitations on administrative detention. Section 3 of Article 75 states that any person arrested or detained should be informed of the reasons for arrest.[lviii] Relevant parts of Article 75(4) require being informed of charges,[lix] prohibit collective punishment,[lx] and the right to confront witnesses.[lxi]

End Notes