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.
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 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]
[i] Office of the High Commissioner for Human Rights. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (2003). Pg. 175, http://www.ohchr.org/Documents/Publications/training9Titleen.pdf.
[ii] Supra Administrative Detention Analysis Report, 2016.
[iii] Supra UN Special Rapporteur on OPT calls on Israel to comply with international law on detention.
[iv] Universal Declaration of Human Rights. Article 9. “No one shall be subjected to arbitrary arrest, detention or exile.”
[v] Id at Article 10. “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
[vi] Id at Article 19. “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”
[vii] Id at Article 20(1). “Everyone has the right to freedom of peaceful assembly and association.”
[viii] Four major ones include: International Covenant on Civil and Political Rights, African Charter on Human and Peoples’ Rights, American Convention on Human Rights, and the European Convention on Human Rights. This paper mostly will focus on the United Nations treaties, though, because of the geographic nature of the others.
[x] International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171. Article 9(1): “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”
[xiii] Fox, Campbell and Hartley v. The United Kingdom, Appl. No. 12244/86; 12245/86; 12383/86), Council of Europe: European Court of Human Rights, para. 32, 30 August 1990, http://www.refworld.org/cases,ECHR,3ae6b6f90.html (accessed 28 January 2018).
[xv] General Comment No. 8: Article 9 (Right to Liberty and Security of Persons). Sixteenth Session (1982).
[xvi] Id. at para. 1.
[xvii] Id. at para. 4.
[xviii] Id. at para. 2.
[xix] Order Regarding Security Provisions. Article 287(A).
[xx] International Covenant on Civil and Political Rights at Article 2(1).
[xxi] International Covenant on Civil and Political Rights, Concluding Observations, (Nov. 21, 2014), para. C, http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsjE8R4c4NRTnrnvejYEy%2fQ%2fTfsNhC%2fVcCyV6AaesRq4RWflg0Oz033dIQseGF57fWmil1potdJupmspjFKEg7x4Qa1y8YjI8hYsH0DDwpVxN.
[xxiii] International Covenant on Civil and Political Rights Article 4.
[xxiv] Non-derogable rights include: right to life, rights to freedom from arbitrary deprivation of liberty, freedom of slavery, and freedom from torture or ill-treatment. (Article 6, 7, 8 (para. 1 and 2), 11, 15, 16, and 18).
[xxvi] International Covenant on Civil and Political Rights Article 14.
[xxviii] Declaration on Human Rights at Article 19.
[xxix] Id at Article 20(1).
[xxxi] Supra Committee Against Torture, Concluding Observations for the Fifth Periodic Review of Israel.
[xxxii] Supra Committee Against Torture, Report Committee Against Torture, A/53/44, Para. 238.
[xxxiii] Id at Para 239(a).
[xxxiv] Id at Para 239(b).
[xxxv] HCJ 5100/94 Pub. Comm. Against Torture in Isr. v. Israel  IsrSC 53(4) 817.
[xxxvi] Supra Committee Against Torture, Concluding Observations 2016, para. 12.
[xxxvii] The United Nations Special Rapporteurs on Health and Torture urged the Government of Israel to halt the legalization of the Force Feeding bill, http://www.ohchr.org/RU/NewsEvents/Pages/DisplayNews.aspx?NewsID=16269&LangID=E. Quoting: “We are expressing grave concern at the allegations that the draft Bill amendment would allow the force-feeding and medical treatment of detainees and prisoners on hunger strike against their will. We are also concerned that the draft Bill may oblige doctors to act contrary to their code of medical ethics. In the context of the draft amendment to the Prisons Act to engage to force-feeding detainees, we would like to recall that acts or threats of forced feeding or other types of physical or psychological coercion against individuals who have opted for the extreme recourse of a hunger strike may constitute a cruel, inhuman or degrading treatment or even torture.”
[xxxviii] Supra Committee Against Torture Concluding Observations 2016 at para. 20.
[xxxix] Supra Right to Health in the Occupied Palestinian Territory and for Prisoners and Detainees in the Israeli Prison System, at para. 2.4.4.
[xl] Supra Concluding Observations 2016 at para. 22.
[xlii] International Court of Justice, Advisor Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, para. 113.
[xliii] Convention on Rights of the Child, Concluding Observations 2013, para. 3. http://www2.ohchr.org/english/bodies/crc/docs/co/CRC-C-ISR-CO-2-4.pdf.
[xliv] Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.
Article 1: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”
[xlv] Supra Convention on Rights of the Child, Concluding Observations 2013. para. 19.
[xlvi] Id at Article 3. “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”
[xlvii] Amnesty International, Israel: Release Teenage Palestinian Activist Ahed Tamimi (Jan. 15, 2018), https://www.amnesty.org/en/latest/news/2018/01/israel-release-teenage-palestinian-activist-ahed-tamimi/.
[xlviii] Supra Politics of Punishment, at pg. 17.
[xlix] Fourth Geneva Conventions (1949). Article 2, https://ihl-databases.icrc.org/ihl/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5.
[l] Fourth Geneva Conventions. Article 3, “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions . . . .” https://ihl-databases.icrc.org/ihl/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5.
[li] Id at Article 27. “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”
[lii] Supra Administrative Detention in the Occupied Palestinian Territory, Fourth Edition.
[liii] Fourth Geneva Conventions at Article 42. “The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.”
[liv] Fourth Geneva Conventions at Article 78. “If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.”
[lv] International Committee for the Red Cross, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=35D52356F487FC85C1256402003F9563 (last visited Feb. 2018).
[lvi] International Committee for the Red Cross, Treaties, State Parties, and Commentaries, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=470.
[lvii] International Committee for the Red Cross. Article 1(4). “The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations,” https://ihl-databases.icrc.org/ihl/INTRO/470.
[lviii] Id at Article 75(3). “Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.“
[lix] Id at Article 75(4)(a).
[lx] Id at Article 75(4)(b).
[lxi] Id at Article 75(4)(g).