The basis for administrative detention in international law

International human-rights law

The right to liberty is one of the pillars of human rights, and prolonged arbitrary detention constitutes a breach of international customary law.

Article 9 of the International Covenant on Civil and Political Rights states:

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 procedures as are established by law.
   
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
   
3. […]
   
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. The provisions of the Covenant are not absolute. Under article 4.1 of the Covenant, “[i]n time of public emergency which threatens the life of the nation”, the state may infringe, to a restricted extent, the rights enshrined in some of the articles, including the article addressing the right to liberty. Even then, the state is restricted and may only take vital measures, and only “to the extent strictly required by the exigencies of the situation.”

The provisions of the Covenant are not absolute. Under article 4.1 of the Covenant, “[i]n time of public emergency which threatens the life of the nation”, the state may infringe, to a restricted extent, the rights enshrined in some of the articles, including the article addressing the right to liberty. Even then, the state is restricted and may only take vital measures, and only “to the extent strictly required by the exigencies of the situation.”

Article 4.3 requires states availing themselves of the right of derogation to give advance notice of their intention to the Secretary-General of the United Nations. Indeed, at the time of ratification, Israel declared that, from the time of its founding, it has been in a state of emergency, and to the extent that the detention and incarceration measures it takes as a result of this situation “do not comport with article 9 of the Covenant, the State of Israel derogates from its obligations under this provision.” Along with other justifications, Israel relies on this declaration to justify its use of administrative detention.

The UN Human Rights Committee, which was established under the Covenant and is responsible for examining the State-Parties’ implementation of the Covenant, related to this declaration and questioned whether it could justify the use of administrative detention in the Covenant’s framework. In 2003, in response to Israel’s claim that the Ministry of Justice was making a comprehensive examination whether the declaration of “state of emergency” was still justified, the Committee held that the examination should be made as soon as possible. Regarding Israel’s use of administrative detention, the Committee held:

[T]he Committee is concerned about the frequent use of various forms of administrative detention, particularly for Palestinians from the Occupied Territories, entailing restrictions on access to counsel and to the disclose [sic] of full reasons of the detention. These features limit the effectiveness of judicial review, thus… derogating from article 9 more extensively than what in the Committee's view is permissible pursuant to article 4.

International humanitarian law

Administrative detention is the most extreme measure that international humanitarian law allows the occupying power to take against residents of the occupied territory. For this reason, its use is subject to stringent conditions.

Under Article 78 of the Fourth Geneva Convention:

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.

In its commentary on this article, the International Committee of the Red Cross states that the internment of protected persons for security reasons is the utmost exception, and states may not use it in a sweeping manner:

[A]rticle 78 speaks of imperative reasons of security; there can be no question of taking collective measures: each case must be decided separately…in any case, such measures can only be ordered for real and imperative reasons of security; their exceptional character must be preserved.

Under this article, administrative detention can never serve as a substitute for a criminal proceeding. Therefore, the desire to protect privileged evidence or the claim that sufficient proof is lacking to prosecute a person cannot justify administrative detention.

Supreme Court justices have agreed in principle that administrative detention of Palestinians must accord with these principles. Thus, they held that article 78 allows detention “that looks to the future,” for deterrent purposes, and not as punishment under any circumstance. The justices emphasized that administrative detention is allowed only when the danger is posed by the person himself, and only when the action aids in removing the danger. Therefore, it is forbidden to use the exception in international humanitarian law as a general deterrent or against a person who no longer poses a threat. The Supreme Court also held that administrative detention, like every other means, is subject to the principle of proportionality. Consequently, it may only be used when no possibility exists to prevent the said danger by a criminal proceeding or by an administrative measure that causes lesser harm to human rights.

According to the ICRC’s commentary, article 78 allows internment only “within the frontiers of the occupied country itself,” and not in the territory of the occupying state. This statement is made in light of article 49 of the Fourth Geneva Convention, which prohibits, among other things, the transfer of protected persons from occupied territory, a rule that forbids the holding of protected persons as internees or prisoners inside the territory of the occupying state.