Israel’s policy on administrative detention, described in the first part of this article, is not only grossly immoral, but it also leads to the violation of numerous principles and binding obligations of international law.

The position of administrative detention in international law

International law explicitly prohibits arbitrary arrest or detention and mandates that “… anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”.15 According to Adalah, Israel has sought to justify its policy of administrative detention by the remarkable claim that it has been under a “state of emergency since 1948” and is therefore justified in suspending or “derogating” from certain rights, including the right not to be arbitrarily detained.16

This position is not supported in international law. Derogations are only permissible under very strict conditions, namely a “public emergency threatening the life of the nation”. And even in situations of public emergency, a state is not permitted to violate certain “core human rights”, including the right to life and prohibition of torture and other cruel, inhuman or degrading treatment or punishments. This last prohibition is often violated in the context of administrative detention.

Israel’s policy of administrative detention furthermore does not respect the safeguards required by international humanitarian law, which aims to protect civilians in occupied territories, in particular articles 43 and 78 of the Fourth Geneva Convention.17 These two important articles were introduced in order to prevent the use of detention as an arbitrary means of controlling a population. It is only to be used as an exceptional measure. Israel’s use of administrative detention has, in fact, been an almost routine measure used against political activists as much. if not possibly more so, than those suspected of serious crimes.

Article 3 of the Fourth Geneva Convention states that “… persons taking no active part in the hostilities … shall in all circumstances be treated humanely”. Finally, Article 72 of the Additional Protocol to the Geneva Convention states that all persons detained have recourse to human rights in the event of an “international armed conflict”.18

Regardless of the precise legal nature of the ‘conflict’, which international lawyers continue to argue over, we accept the useful conclusion of the International Court of Justice in its 2004 Advisory Opinion that, this notwithstanding, the Geneva Convention “is applicable in the Palestinian territories” on the basis of earlier conflicts between Israel and neighbouring countries. We also accept the Court’s conclusion that “the protection offered by human rights conventions does not cease in case of armed conflict”, with the exception of certain lawful derogations, as discussed earlier.19

Essentially, the safeguards provided by international humanitarian and human rights law were designed to protect against the use of administrative detention beyond simply an exceptional measure. They are further reinforced by long-standing guidelines on the treatment of persons in detention.20

Jelena Pejic, a legal advisor to the International Committee of the Red Cross (ICRC), which is considered the most important international body monitoring the implementation of international humanitarian law, stresses that depriving a person of their liberty for reasons of public security should only be considered as “an exceptional measure of control”.

So, what is meant by an “exceptional measure”? Pejic cites the example of “administrative detention for the sole purpose of intelligence gathering”, which she insists “cannot be justified”.

The basis for considering administrative detention as an exceptional measure she explains is twofold: firstly, that “personal liberty is the rule” rather than the exception and secondly, there is a well-established assumption that a country’s criminal justice system should be “able to deal with persons suspected of representing a danger to State security”. 21

In other words, administrative detention is a measure that should be taken only after various other alternatives have been considered. In view of the foregoing, it would seem that the detention of activists, simply on the basis of their political views (for example those campaigning for elections) would clearly also “not be justified”.

Pejic writes that principles and safeguards for the application of administrative detention are essential. The guidelines she refers to include that administrative detention be exercised on a case-by-case basis, without discrimination of any kind and that indefinite detention is not permissible. Furthermore, certain procedural safeguards must be in place concerning access to information about the reasons for being administratively detained, providing detainees the right to challenge the lawfulness of administrative detention by an impartial body and access to legal assistance, periodical review, contact with family, access to medical care and access to the detainees by (amongst others) the ICRC. Detention at a secret location would also not be permitted.

Israel does not respect these safeguards

It would appear that the only guideline Israel comes even remotely close to respecting is the right of periodical review. However, without any of the other safeguards, and in particular without providing reasons for holding someone in administrative detention, the ability to challenge such an order is effectively meaningless. As one Israeli lawyer who has defended countless Palestinians being held under administrative detention orders has put it, “the law is almost a dead letter”.

Both Hamoked and B’Tselem also observe that the Israeli authorities apply administrative detention in violation of these essential safeguards provided by international law. They cite widespread misuse of the powers granted to the military. Both Amnesty International and Human Rights Watch too have condemned Israel’s policy on administrative detention.

B’Tselem cites the following examples. “The authorities use administrative detention as a quick and efficient alternative to criminal trial, primarily when they do not have sufficient evidence to charge the individual, or when they do not want to reveal their evidence… Israel administratively detains Palestinians for their political opinions and non-violent political activity. In this way, the authorities expand the meaning of danger to ‘security of the area’ by violating freedom of expression and opinion.”22

By refusing to ensure even basic, minimum standards for the exercise of administrative detention and abusing its power by using this “exceptional measure” in a routine manner and against civilians, Israel creates a situation where these essential safeguards and especially articles 3, 43 and 78 of the Fourth Geneva Convention are routinely violated. Further, other principles embodied in international human rights instruments are also violated, as explained below.

Torture

Israel’s policy on administrative detention also creates a situation where grave violations of international law take place, including international prohibitions against torture.

In 1986 Israel signed the UN Convention Against Torture, which they ratified in 1991. Despite a 1999 Supreme Court Case that forbade torture and only allowed certain forms of “moderate pressure” in very exceptional circumstances, torture of Palestinian detainees is still quite widespread, based on reports from Israeli, Palestinian and foreign NGOs as well as UN organisations.

The Supreme Court ruled that various methods of torture by the General Security Service (GSS) used such as violent shaking, covering the head with a sack, tying the detainee to a small tilted chair (known as position abuse), sleep deprivation and painful shackling were, when applied cumulatively, illegal.

The Court, however, left the circumstances under which “moderate pressure” might be applied largely unaddressed. As such, the Israeli courts effectively legalised certain forms of “moderate physical and psychological pressure”, while leaving the decision up to the government as to when it might be exercised during the interrogation of Palestinian detainees.

In his latest report to the 60th session of the UN Commission on Human Rights, the Special Rapporteur on Palestinian territories occupied by Israel states that (despite this Court ruling), “… allegations of torture and inhuman treatment of detainees and prisoners continue. Such treatment includes beatings, shackling in painful positions, kicking, prolonged blindfolding, denial of access to medical care, exposure to extreme temperatures and inadequate provision of food and water.”23

In short, administrative detention, as practised by Israel leads to just the sort of violations contemplated by the International Court of Justice when it condemned not only Israel’s construction of a Wall, but also its “associated regime”.24

Extending the use of administrative detention - tightening the screws

Despite international pressure, there is little sign that Israel has any intention of softening its policy on administrative detention. Indeed, it seems very intent on extending its use to more people, with even fewer rights and to even use administrative detention in order to interfere with the PA elections that are set to take place in January 2006.

In recent weeks, there have been several confirmed reports that hundreds of people have been administratively detained, though it is virtually impossible to determine the exact number. According to the Palestinian Central Committee for Local Elections, the latest round of administrative detention appears to be aimed at candidates who simply have either belonged to Hamas or have previously been administratively detained.25

Another development reported in the press is that Israel has been offering “voluntary deportation” instead of administrative detention to Palestinian detainees who have spent more than two years in detention camps in the Negev. 26

The latest measures being introduced by the government of Israel include incommunicado detention without trial for up to 50 days (extendable) and “… empowers the General Security Service to delay bringing persons suspected of committing security offenses before a judge for a period of ninety-six hours”, drastically extending the period currently provided for. As B’Tselem report, “If enacted, the law will severely breach the fundamental rights of suspects in criminal proceedings, and increase the risk of maltreatment during interrogation.” 27

This latest measure in particular, if passed by the Israeli Knesset, would extend an already brutal policy and place administrative detainees even further at the mercy of their interrogators.

International action needed

Nigerian human rights advocate, Wole Soyinka, also wrote of his experiences as an administrative detainee: “It is wrong. The question is not whether I can bear it or not. The issue is should I have to bear it.”

The international community should not remain silent and be bystanders as violations of human rights and humanitarian law are perpetrated against the Palestinian people.

While the ICRC seeks to ensure that minimum standards are followed in the exercise of administrative detention, the experiences of administrative detention in Israel and indeed in many other countries (such as South Africa) show that a state willing to use such an “exceptional measure” is rarely guided by human rights or concern for humanity. These experiences demonstrate that the risks of abuse and grave human rights violations far outweigh any security considerations gained by its use.

Administrative detention is used by Israel in a highly arbitrary manner without even basic safeguards in place. It also leads to other, grave human rights violations, such as inhuman and degrading treatment and torture.

Human rights advocates should raise their voices anew against the gross injustices caused by the use of administrative detention.

The use of administrative detention is immoral, its consequences illegal. Governments should be pressured to hold Israel accountable and end the practice of detaining people for years in harsh conditions without charges or trial.

Jeff Handmaker is a human rights lawyer in The Hague and part-time Ph.D. researcher at the Netherlands Institute of Human Rights (SIM), Utrecht University. Adri Nieuwhof is a psychologist and human rights advocate in the Netherlands.

Endnotes

[1] Administrative Detention, B’Tselem.

[2] See Administrative Detention, Addameer.

[3] See Administrative Detention, Amnesty International, last updated 10 November 2005.

[4] B’Tselem

[5] Statistics at the end of 2004, Addameer.

[6] Reuters journalist freed : Reporters Without Borders demands release of three others, Reporters Without Border (11 October 2002).

[7] Israel and the Occupied Territories - Annual report 2003, Reporters Without Borders.

[8] Presentation Tamar Peleg Sryck, London, December 2004.

[9] Ibid, Tamar Peleg Sryck.

[10] Saed Bannoura, Ansar al-Sajeen demands Israel probe the death of a detainee, IMEMC & Agencies (29 July 2005)

[11] Annual Report, 1998, Amnesty International.

[12] Presentation Jaber Wishah, Palestinian Ex-prisoners Association, December 2004.

[13] Ibid.

[14] Civil and Political Rights, Including the Questions of Torture and Detention, Report of the Special Rapporteur, Theo van Boven, E/CN.4/2005/62/Add.1.

[15] The UN International Convention on Civil and Political Rights, Article 9(5). The UN has established a special Working Group on Arbitrary Detention.

[16] Submission to the UN Human Rights Committee (PDF) Adalah (22 July 2003).

[17] International Committee of the Red Cross (ICRC).

[18] Jelena Pejic, Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence (PDF) ICRC (June 2005).

[19] Advisory Opinion on the Legal Consequences of the construction of a wall in the occupied Palestinian territory, International Court of Justice, 9 July 2004, respectively, paragraphs 101 and 106.

[20] UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Adopted by General Assembly resolution 43/173 of 9 December 1988.

[21] Jelena Pejic, Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence (PDF) ICRC (June 2005).

[22] Administrative detention in the Occupied Territories, B’Tselem.

[23] Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem (PDF) Report of the Special Rapporteur John Dugard, A/60/271 (18 August 2005).

[24] Beyond the Advisory Opinion: Possible Future Strategies, Jeff Handmaker, The Electronic Intifada (20 September 2004).

[25] Source: Palestinian Central Committee for Local Elections.

[26] Saed Bannoura, Israel offers “voluntary deportation” instead of administrative detention, IMEMC & Agencies (5 October 2005).

[27] Bill enabling prolonged incommunicado detention passed its first reading in the Knesset plenum, B’Tselem (3 November 2005)

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