The legal basis for administrative detention

Humanitarian law

Israel's use of administrative detention in the Occupied Territories is also subject to international humanitarian law, specifically the Fourth Geneva Convention, to which it is party. Israel consistently maintains that its use of administrative detention constitutes a legitimate exercise of its legal rights under article 78 of the Fourth Geneva Convention, which states 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." According to the commentary of Dr. Jean Pictet, a leading authority on the Geneva Convention, "such measures can only be ordered for real and imperative reasons of security."

Furthermore, it is questionable whether article 78 currently applies in the Occupied Territories. Article 6 of the Convention stipulates that article 78 is among those articles the application of which "shall cease one year after the general close of military operations." According to Pictet, "as hostilities have ceased, stringent measures against the civilian population will no longer be justified.... The provisions which concern situations connected with military operations ... will no longer apply. The same applies to the clauses relating to internment." This article cannot, therefore, be a basis for Israel's administrative detentions today.

Article 49 of the Fourth Geneva Convention forbids "individual or mass forcible transfers, as well as deportations of protected persons from the occupied territory to the territory of the Occupying Power." Israel, which holds administrative detainees in the Occupied Territories, thus violates the Convention.