Administrative detention in perspective of International and humanitarian law
By : Mutasem Awad , Editing and Translation from Arabic to English by : Hiyam Noir
February 21, 2012
The Israeli occupation forces arrested late last year Khader, Adnan, 34, from Arrabeh village near Jenin. The arrest was transformed to administrative detention, and following this decision, the detainee Khader begin a hunger strike in protest against the manner of his arrest and the interrogation. As a result, of the hunger strike his health condition deteriorated, and he was admitted to a hospital where he still is staying, with an increased danger day by day for his life.
The phenomena of administrative detention in the occupied Palestinian territory, has increased in year 2011, where the occupying power during that year converted the arrest of more than 88 Palestinian detainees to administrative detention, which is based on the administrative order only, without the intervention of the judiciary power and without indictment and trial.
It is true that International Humanitarian law did not absolutely prohibits administrative detention; however stringent requirements were put for the application of such detention in order to avoid arbitrary detention and not to misuse and violate the human rights to a fair trial. According to international law, administrative detention can be attested only - in very exceptional cases, as a last resort to avoid real danger that cannot be thwarted by less harmful means.
Art. 42 of the fourth Geneva Convention of 1949 stated that "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".
In addition Art. 78 of the convention stated that "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 ".
The way in which administrative detention is used in the Palestine territory occupied by the Israeli occupying power contradicts the restrictions on the application of this kind of detention. This is evident through the expansion of its scope of application; The Israelis has used these measures over the years, against thousands of Palestinians as a means of pressure to extract confessions, or as a form of revenge to a family, or as a kind of political retaliation as happened with members of the Palestinian legislative council, or as a bargaining chip used on some Lebanese detainees in Israeli prisons, as a pressure to restore the prisons and the bodies of Israeli soldiers.
The second indicator which demonstrates a contradiction of the Israeli use of administrative detention is the use of such detention as an easy alternative to normal judiciary procedures, especially when there is no evidence of accusation.
Administrative detention against Palestinian detainees is employed under the heavy veil of secrecy that prevents detainees from establishing a proper defense in court. It is used without a judicial ruling, without indictment, and without a trial. Moreover, the administrative detainee’s lawyers are not given access to the evidence which is in full breach of the most basic human rights including the prohibition of arbitrary detention, ensuring a fair trial, the right to freedom and to fair legal procedures, the right to defend one’s self and the right to be declared innocent.
Art 9 of the International Covenant on Civil and Political Rights (1966) stipulates that everyone has the right to liberty and security of person and that no one shall be subjected to arbitrary arrest or detention.
Art 9 also ensures the right to a fair trial.
International Humanitarian Law also prohibits arbitrary detention and stressed on the principle of fair trial. The study of the International Committee of the Red Cross, on customary International Humanitarian Law, affirmed the aforementioned principles. Customary rule no. 99 of the study prohibited the arbitrary deprivation of liberty. In addition customary rule no.100 of the study ensured that no one may be convicted or sentenced without a fair trial that affords all essential judicial guarantees.
The fourth Geneva Convention of 1949 relative to the protection of civilian persons in time of war also underlines the importance of ensuring a fair trial. Art. 71. Of the convention stresses that accused persons who are prosecuted by the Occupying Power shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them, and shall be brought to trial as rapidly as possible. The notification shall include the following particulars:
A. description of the accused;
B. Place of residence or detention;
C. Specification of the charge or charges (with mention of the penal provisions under which it is brought);
D. Designation of the court which will hear the case;
E. Place and date of the first hearing.
In addition, Art. 72 of the convention stipulates that accused persons shall have the right to present evidence necessary to their defense and may, in particular, call witnesses. They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defense.
Moreover, Art.73 of the convention stresses that a convicted person shall have the right of appeal provided for by the laws applied by the court. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.
Thus the misuse of the administrative detention by the Israeli occupying power makes it arbitrary as it violates customary International humanitarian law the aforementioned conventions.
The Israeli occupying power bears civil and criminal responsibilities for what is happening or might happen to the detainee, Khader Adnan. It is required now more than ever, to apply the Fourth Geneva Convention of 1949 to the occupied Palestinian territory and to stop arbitrary administrative detention and all other actions that violate International humanitarian law and International human rights law.
I also call upon the international community represented by the ICRC, UNSC, UNGA and all States Parties to the Geneva Conventions (1949) to bear their legal responsibilities through actions and to take all necessary measures to protect civilians in the oPt and to stop all kinds of violations committed by the Israeli occupying power against them.