Practice Relating to Rule 118. Provision of Basic Necessities to Persons Deprived of Their Liberty
Israel’s Manual on the Laws of War (1998) provides:
Prisoners must be administered proper medical care, at the expense of the detaining State, and a monthly follow-up examination must be made of each detainee’s state of health. It is incumbent on the detaining State to provide the prisoners with sufficient food, drink and clothing.
The manual also states:
One of the most important provisions in the Geneva Convention are the rules concerning the right of prisoners … to receive packages from [their families] containing food, clothes, medications, ritual articles, literature and means of study.
Israel’s Manual on the Rules of Warfare (2006) states:
The country imprisoning them must provide prisoners-of-war with suitable medical care and must subject each prisoner-of-war to a monthly health examination. It is the duty of the country imprisoning them to provide prisoners-of-war with food, drink and clothing in adequate amounts.
The manual further states:
Prisoners-of-war must be allowed to exchange letters with their relatives and receive parcels of food, clothing, medicine, religious artefacts, literature and study requisites. The imprisoning country is permitted to censor the prisoners’ post as long as this is not used as an excuse for withholding their post from them.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s Internment of Unlawful Combatants Law (2002), as amended in 2008, states: “An internee shall be held under proper conditions that do not harm his health or dignity.”
In its judgment in Center for the Defense of the Individual v. the Commander of IDF Forces in the West Bank in 2002, Israel’s High Court of Justice stated:
22. The detention conditions in the area are primarily laid down by the Imprisonment Facility Operation (West Bank) Order 29-1967 [hereinafter, the Imprisonment Order]. This order provides directives regarding the conditions of imprisonment in the area. Most of its provisions, save the following three, have no bearing on the matter at hand. First, the order specifies that “prisoners shall be provided with appropriate nourishment that will guarantee the preservation of their health,” Imprisonment Order, § 4, that “prisoners shall be provided with necessary medical treatment,” Imprisonment Order § 5(a), and that “prisoners shall receive a receipt when their family identification and personal ID cards are taken,” Imprisonment Order § 7.
23. These specific provisions are subject to the general principles of customary international law. They are also subject to the directives regarding detention conditions set out in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949 [hereinafter, the Fourth Geneva Convention]. As is well-known, Israel considers itself bound by the humanitarian directives of this Convention. The respondent reiterated this commitment while in his response to the petition before us. The directives of the Geneva Convention regarding detention conditions are clearly of a humanitarian nature; therefore they should be adhered to. The question of whether or not the Basic Law: Human Dignity and Liberty applies to detention conditions in the area need not be answered here. The general principles of administrative law, which apply to Israeli soldiers in the area, are sufficient for this matter. See HCJ 393/82 Jamait Askan v. IDF Commander in Judea and Samaria, IsrSC 37(4) 785. According to these principles, the army must act, inter alia, reasonably and proportionately, while striking a proper balance between the liberty of the individual and the needs of the public. One may learn about the proper standards of reasonableness and proportionality from the Standard Minimum Rules for Treatment of Prisoners. These standards were adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955, and were ratified by the United Nations in 1957 and in 1977. See HCJ 221/80 Darvish v. The Prison Service, IsrSC 35(1) 536, 539-40, [hereinafter Darvish]; HCJ 540-546/86 Yosef v. Administrator of the Central Prison in Judea and Samaria, IsrSC 40(1) 567, 573, [hereinafter Yosef]; HCJ 253/88 Sajadia v. The Minister of Defense, IsrSC 42(3) 801, 832, [hereinafter Sajadia]. These standards apply to all imprisoned persons, including detainees. Needless to say, these general standards must always be adjusted to the specific circumstances, with regard to time and place, while ensuring adherence to at least the bare minimum. Justice Bach has noted:
One should not infer from this that all of the directives of the convention regarding the detention conditions of administrative detainees must be followed blindly. Each and every directive should be examined with regard to its significance, its indispensability, and its adjustment to the special circumstances of the detention facility which is the subject of our proceeding.
Sajadia, at 832. Furthermore, we do not deal here with the imprisonment conditions of prisoners held in prisons. We are dealing with the detention conditions of those being held in detention facilities in the area. These detainees were detained during warfare in the area. According to the security forces, the circumstances of the detentions are such that there is fear that the detainees endanger or are liable to endanger the security of the area, the security of IDF forces, or national security. See Order 1500 (the definition of “detainee.”)
24. The basic point of departure for our discussion is the balancing point between the liberty of the individual and the security of the public. On the one hand are the rights of the individual who enjoys the presumption of innocence and desires to live as he wishes. On the other hand lies society’s need to defend itself against those who rise up against it. Detention laws in general, and, more specifically, detention conditions, reflect this balance. Here we find the position that detainees should be treated humanely and in recognition of their human dignity. This is expressed in article 10 of the 1966 International Covenant on Civil and Political Rights. Israel is a member of this covenant. Article 10 of this covenant is generally recognized as reflecting customary international law. See N. S. Rodley, The Treatment of Prisoners Under International Law 27 (2nd ed. 1999). The article states:
All persons deprived of their liberty shall be treated with human dignity and with respect for the inherent dignity of the human person.
See also the first principle of the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N. GAOR, 43d Sess., Supp. No. 49, U.N. Doc. A/43/49 (1988). Israel acts according to this principle with regard to all prisoners and detainees. See CApp 7440/97 State of Israel v. Golan, IsrSC 52(1) 1; HCJL.A. 6561/97 The State of Israel v. Mendelson, IsrSC 52(5) 849; HCJL.A. 823/96 Wanunu v. The Prison Service, IsrSC 51(2) 873). Vice President H. Cohen expressed this principle in Darvish:
Any person in Israel, who has been sentenced to imprisonment, or lawfully detained, is entitled to be held under humane and civilized conditions. It is not significant that this right has yet to be explicitly stated in legislation: this is one of the fundamental human rights, and in a law-abiding democratic state it is so self-evident that it needs not be written or legislated.
Darvish, at 538. Indeed, the nature of detention necessitates the denial of liberty. Even so, this does not justify the violation of human dignity. It is possible to detain persons in a manner which preserves their human dignity, even as national security and public safety are protected. Compare Yosef, at 573. Prisoners should not be crammed like animals into inadequate spaces. Even those suspected of terrorist activity of the worst kind are entitled to conditions of detention which satisfy minimal standards of humane treatment and ensure basic human necessities. How could we consider ourselves civilized if we did not guarantee civilized standards to those in our custody? Such is the duty of the commander of the area under international law, and such is his duty under our administrative law. Such is the duty of the Israeli government, in accord with its fundamental character: Jewish, democratic and humane. Compare Yosef, at 573.
25. In addition to these principles, we must consider the principles and regulations set forth in the Fourth Geneva Convention. Article 27 of the Fourth Geneva Convention sets out the point of departure for the convention:
Protected persons are entitled, in all circumstances, to respect for their persons, their honor, 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 against and against insults and public curiosity….
However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.
Alongside this general directive, the Fourth Geneva Convention includes a number of directives which refer to specific conditions of detention. We shall examine those directives which are relevant to the petition before us, and which reflect the proper balance between the right of detainees and the security needs of the area. These directives apply to persons in “internment,” meaning administrative detention. Apparently, these directives do not apply directly to detentions for the purpose of interrogation, though, indirectly, they do bear heavily on such situations. Thus, there is no reason not to refer to these directives in regard to the detention conditions before us. Some of the detainees being held at Ofer Camp, who are in the last stages of their detention, remain there on the authority of an administrative detention order. The aforementioned directives directly apply to those detainees. The Geneva Convention specifies that detention conditions must preserve the health and personal hygiene of the detainees, while protecting them from weather conditions. The detention facility should be properly lit and heated, especially in the late afternoon and until curfew; the sleeping areas should be sufficiently spacious and ventilated; and, in providing bedding, the weather conditions, as well as the age, gender and health conditions of the detainees, should be taken into account. Detainees should be provided with clean and hygienically maintained bathrooms. The detainees should receive a sufficient supply of soap and water for laundry and daily bathing; they should be provided with the necessary equipment to this end. Detainees shall have access to showers, as well as sufficient time for bathing. See Fourth Geneva Convention, art. 85. Detainees shall receive daily nourishment which is satisfactory in its quantity, quality and variety, such that it preserves their health and prevents the development of illnesses which originate in malnutrition; detainees shall be allowed to prepare their own food; they shall be provided with a sufficient supply of drinking water. Fourth Geneva Convention, art. 89. Detainees shall be provided with sufficient changes of clothing, appropriate for the weather conditions. Fourth Geneva Convention, art. 90. An infirmary supervised by doctors shall be located in each detention area; detainees shall have unlimited access to medical authorities. Fourth Geneva Convention, art. 91. Detainees shall undergo medical inspections at least once a month. Fourth Geneva Convention, art. 92. The authorities will encourage learning and educational activities. They will also encourage the detainees to engage in sports and games. Sufficient space will be allotted for sporting activities. Fourth Geneva Convention, art. 94. Any items taken from the detainee at the time of his detention shall be returned to him upon his release. Family identification and personal ID cards shall not be seized without providing the detainee with a receipt. Detainees shall never remain without identification. Fourth Geneva Convention, art. 97. The disciplinary order in the detention facility must conform to the principles of humanity. The body and spirit of the detainees shall not be harmed. Fourth Geneva Convention, art. 100. The minimal standards of treating prisoners, which apply to all forms of detention, do not add significant provisions on the matters relevant to this petition. It is sufficient to note the following requirements: detainees require minimal space for sleeping, lighting and heating. Fourth Geneva Convention, reg. 10. Each detainee shall have his own bed. Fourth Geneva Convention, art. reg. 19. At least one hour of physical activity shall be allowed. Fourth Geneva Convention, art. 21. A doctor from the detention facility shall inspect the conditions of sanitation.
From the General to the Specific
26. In order to implement these specific principles and rules in this case, we must distinguish between the two stages of detention the detainees went through. First, we shall deal with the detention in the temporary facilities. This occurred during the first days of detention. The detainees were held at brigade headquarters, which was not adequately prepared for so many detainees. These special circumstances should be taken into account when examining whether the respondent maintained the necessary detention conditions. In referring to the issue of overcrowding in Sajadia, President Shamgar correctly stated:
The existence of extreme crowding at the beginning of the wave of detentions may be explained by the security need for the simultaneous imprisonment of many people.
Sajadia, at 823. Nevertheless, even in such a situation, everything must be done to preserve the minimal standards of detention conditions. These standards were not observed during the initial stages of detentions at the temporary facilities, and this conduct violated the detention order, the international laws which apply to the area and the fundamental principles of Israeli administrative law. It will suffice to note several blatant breaches of these standards: detainees’ hands were handcuffed in a rough manner, which resulted in fierce pains and bruise marks; some of the detainees were kept outside for hours, as many as forty-eight, not sheltered from weather conditions and without sufficient access to bathrooms; their possessions were taken from them without being documented. These conditions of detention can not be justified, nor can other deviations from minimal standards be excused by the need to accommodate so many detainees in such a short period of time. The necessity was known in advance. It was expected. Operation Defensive wall was planned in advance. One of its goals was to arrest as many suspected terrorists as possible. As such, the need for minimal detention conditions was a natural result of the goals of the operation. There was no surprise in the matter. There was the possibility of preparing appropriate divisions with suitable detention conditions. What was done a number of days after the beginning of the operation should have been done several days before it began. Indeed, security needs – which must always be taken into account – did not justify the inadequacies in the conditions of detention in the temporary facilities.
27. During the second phase, the detainees relocated to Ofer Camp. During the first days in which the detainees were received in Ofer Camp, some of the minimal requirements regarding detention conditions were not fulfilled. As we have seen, at the beginning of Operation Defensive Wall, Ofer Camp’s capacity was 450 detainees, with the option of expanding to 700. In fact, a much larger number of detainees were brought to the facility. The overcrowding was unbearable. A substantial number of detainees remained unsheltered, exposed to the rigors of weather conditions. Not all of the detainees received a sufficient supply of blankets. These circumstances did not satisfy minimal standards of detention conditions, and had no security justification.
28. Shortly after, Ofer Camp’s entered a period of routine operation, during which minimal requirements were satisfied. This was the situation when the respondent first submitted his statement on 24.04.2002, and at the time of the first hearing. Since then, additional improvements have been made. The current conditions essentially satisfy the minimal required conditions, and in some cases, the conditions in Ofer Camp even exceed such minimal requirements. Such a state of affairs is appropriate: “minimal conditions” guarantee, as their name suggests, only the necessary minimum. Israel, as a Jewish and democratic state, should aim to more than the minimum, and the respondent acted admirably in ensuring that, regarding certain matters, the conditions exceed minimum requirements. Even so, two matters still demand improvement. First
, the army should reconsider the issue of supplying tables at which the detainees may eat. The explanation offered for the absence of such tables – that the detainees will dismantle the tables, and use them in such a way as will disturb security – is unconvincing. The detainees have not used the wooden beds in this manner, and there is no reason to believe they will do so with tables. Additionally, concrete tables may be deeply embedded in the ground, thus preventing the detainees from dismantling them. For those accustomed to eat at tables, the need for such tables is part of their human dignity. Detainees are not animals and they should not be forced to eat on the ground. See Yoseph
, at 575. It is of course possible that there is not enough space for tables, whether in or around the tents. This may require the expansion of the detention camp. The weight and position of this argument has not been explored before us, and we ask that the matter be reconsidered. Second
, the respondent must ensure that books, newspapers and games be provided to the detainees. Minimal standards demand this, and the matter should not be left to the Red Cross. It is the respondent’s duty, and fulfilling it does not interfere with security. Naturally, if the Red Cross has already supplied the detainees with these items, the respondent is no longer obligated to do so.
In its judgment in the Yassin case in 2002, Israel’s High Court of Justice stated:
9. An important legal source with regard to detention conditions is the Emergency Powers (Detention) Law-1979. The Detention Regulations were set out pursuant to the grant of authority contained in this law. These regulations set forth the standards that govern the detention conditions of those who are administratively detained in Israel. They also apply to whoever is detained in the area pursuant to security legislation. This is established in regulation 6(b) of the Emergency Regulations (Offences Committed in Israeli-Held Areas – Jurisdiction and Legal Assistance)-1967, which states:
Where an arrest warrant or detention order has been issued against any person in the area, pursuant to the proclamation or the order of a commander, such a warrant or order may be executed in Israel in the same manner that arrest warrants and detention orders are executed in Israel; and that person may be transferred, for detention, to the area where the crime was committed.
In Sajadia the court held, based on this regulation, that Kziot Camp must heed the Detention Regulations as well. See also HCJ 1622/96 Abad Al Rahman Al Ahmed v. The General Defense Service. Regulation 5(a) of these regulations states that “a detainee in a detention facility shall receive the same meal portion provided to the jailers in that detention location.” The regulations do not specify that there must be an operative canteen in the facility. However, they do specify that “in a detention facility which has a canteen, the commanding officer may permit the detainees to purchase goods there.” The regulations also state that “a detainee is entitled to receive medical treatment and medical equipment, as is demanded by his health condition.” See Regulation 6(b). Regulation 6(a) specifies that “a detainee shall be examined monthly by a doctor designated by the commander, and at any time where it becomes necessary to do so.” The Detention Regulations also state that “a detainee is entitled … to receive bathing and cleaning materials as necessary,” regulation 8(a), as is he entitled “to receive newspapers and books for reading, as has been decided by the commander” regulation 8(c).
12. The Geneva Convention Relative to the Protection of Civilian Persons in Time of War [hereinafter The Fourth Geneva Convention] provides an additional legal source for examination of the detention conditions in Kziot Camp. This convention sets forth comprehensive arrangements concerning conditions of detention. The validity of the convention with regard to the detention conditions at Kziot is not a subject of dispute before us, as Israel sees itself as bound by the humanitarian provisions of the convention. We have reviewed the details of these provisions in The Center for the Protection of the Individual, at par. 23.
13. Israeli common law provides an additional legal source concerning this matter. Our common law includes a long list of judgments concerning the conditions of detention in Israel. These judgments are founded on the need to strike a proper balance between the liberty of the individual and the security needs of the public. Justice M. Elon explained the guiding principle of this balance:
It is an important principle that every civil right to which a person is entitled is preserved even when he is imprisoned or detained. Imprisonment does not deprive anyone of any right, unless such deprivation is an inherent part of detention – such as taking away one’s freedom of movement – or where an explicit statute refers to this matter.
HCJ 337/84 Hokma v. The Minister of the Interior, at 832. In the same spirit Justice Matza wrote:
It is a firmly established precept that, even between prison walls, a person’s fundamental rights “survive.” Such rights belong to the prisoner (as well as the detainee) even within his prison cell. The only exceptions to this rule are the prisoner’s right to freedom of movement and other limitations which are inherent to depriving him of his personal liberty, or which are based on explicit legal instructions.
CA 4463/94 Golan v. The Prison Services, at 152-53. Justice Matza continued, at 155:
We do not allow the deprivation of basic human rights, which the prisoners require. These rights consists not only of the prisoner’s right to eat, drink and sleep, but also the right to have these needs supplied in a civilized manner.
These decisions and others like them, whether directly or indirectly, provide standards by which we can examine the detention conditions in Kziot. See, e.g., HCJLA 6561/97 The State of Israel v. Mendelson; HCJL.A. 823/96 Vanunu v. The Prison Service. Furthermore, Israeli administrative law applies to the actions of every government authority in Israel. Thus, these principles apply to the actions of respondents, including the establishment and maintenance of detention conditions. As such, the detention conditions must be reasonable and proportional. See Center for the Defense of the Individual. One may learn about the standards of reasonableness and proportionality from the Standard Minimum Rules for Treatment of Prisoners, which were adopted by the United Nations in 1955. See Droish, at 539; Sajadia, at 832. These standards apply to all forms of imprisonment, including detention. We reviewed the details of these instructions in Center for the Defense of the Individual, at par. 23.
17. Article 85 of the Fourth Geneva Convention concerns living conditions. It states that the detaining authority must ensure that the detainees:
[B]e accommodated in buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection against the rigors of the climate and the effects of war.
In Pictet’s explanation of this rule, he asks:
Could the term “buildings or quarters which afford every possible safeguard as regard hygiene and health, and provide efficient protection against the rigors of the climate and the effects of war” be taken to mean camps made up of tents? This practice is allowed in the case of prisoners of war where the Detaining Powers follow the same procedure for their own troops. During the Second World War it proved satisfactory in certain climates when some essential improvements had been carried out (cement floors, brick walls, stone paths and access roads). The same latitude, however could hardly be granted with regard to civilian internees and it seems clear that “buildings or quarters” must be taken to mean structures of a permanent character.
J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 386 (1958). I doubt that Pictet’s interpretation is correct. It seems that a better approach would vary according to the time and place. It depends upon the nature of the tents on the one hand, and the conditions of the location on the other. Additionally, a significant factor is whether the detention is short-term or long-term, whether it lasts months or even years. Ultimately, the test is one of reasonableness and proportionality. Thus, we call for this matter to be investigated.