Practice Relating to Rule 87
With reference to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states that as a general policy, all individuals falling in the power of a party to a conflict should, at a minimum, be treated in accordance with the principles of humanity.
Israel’s Manual on the Rules of Warfare (2006) states: “Even in wartime, the IDF [Israel Defense Forces] shall act humanely, as part of Israel’s heritage as a Jewish and democratic state and a member of the family of civilized nations.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
According to the Report on the Practice of Israel, the protection of persons who are hors de combat
is a basic tenet of the Israel Defense Forces.
In its judgment in the Ala’una case in 2003, Israel’s High Court of Justice stated:
Counsel for the petitioners argued before us that the soldiers at the checkpoints do not properly follow the binding rules, but we are unable to consider a mere, general claim of this kind. We can only recommend to the respondent that the persons in charge of the checkpoints continue to instruct the soldiers at the checkpoints that they conduct themselves with the requisite patience and humaneness and without creating hardship for residents of the villages to an extent that is greater than necessary.
In its judgment in the Physicians for Human Rights v Commander of IDF Forces in the Gaza Strip case in 2004, Israel’s High Court of Justice stated:
10. The military operations of the IDF [Israel Defense Forces] in Rafah, to the extent that they affect civilians, are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907 (hereafter – the Hague Convention) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War – 1949 (hereafter – the Fourth Geneva Convention). In addition, they are also governed by the principles of Israeli administrative law. See HCJ 393/82 Almasualiah v. Commander of the IDF Forces in the West Bank; HCJ 358/88 Association for Civil Rights in Israel v. GOC Central Command. According to these principles, the IDF must act with integrity (both substantive and procedural), with reasonableness and proportionality, and appropriately balance individual liberty and the public interest. See HCJ 3278/02 The Center for the Defense of the Individual v. The Commander of the IDF Forces in the West Bank.
11. For our purposes, the central injunction of international humanitarian law applicable in times of combat is that civilian persons are “entitled, in all circumstances, to respect for their persons, their honour, 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.” Fourth Geneva Convention, § 27. See also the Hague Convention, § 46. This normative framework was formulated by Gasser:
Civilians who do not take part in hostilities shall be respected and protected. They are entitled to respect for their persons, their honour, their family rights, their religious convictions, and their manners and customs. Their property is also protected. (See Hans Peter Gasser, Protection of the Civilian Population, in The Handbook of Humanitarian Law in Armed Conflicts 211 (D. Fleck, ed., 1995).)
The basic assumption of this injunction is the recognition of the importance of man, the sanctity of his life, and the value of his liberty. Compare The Basic Law: Human Dignity and Liberty, § 1; J.S. Pictet, Commentary: Fourth Geneva Convention 199 (1958). His life may not be harmed, and his dignity must be protected. This basic duty, however, is not absolute. It is subject to “such measures of control and security in regard to protected persons as may be necessary as a result of the war.” See Fourth Geneva Convention, § 27. These measures may not “affect the fundamental rights of the persons concerned.” See Pictet, at 207. These measures must be proportionate. See Fleck, at 220. The military operations are directed against terrorists and hostile combatants. They are not directed against civilians. See Fleck, at 212. When civilians, as often happens, enter a zone of combat – and especially when terrorists turn civilians into “human shields” – everything must be done in order to protect the dignity of the local civilian population. The duty of the military commander is double. First, he must refrain from operations that may cause harm to the civilian population. This duty is formulated in the negative. Second, he must take all measures required to ensure the safety of civilians. This latter duty calls for positive action. See Fleck, at 212. Both these duties – which are not always easily distinguishable – should be reasonably and proportionately implemented given considerations of time and place.
12. Together with this central injunction regarding civilians’ human dignity during times of combat, international humanitarian law imposes several specific obligations. These obligations do not exhaust the fundamental principle. They only constitute specific expressions of that principle.
In its judgment in the Zaharan Yunis Muhammad Mara’abe case in 2005, the Supreme Court of Israel stated:
[T]he legality of the Israeli settlement activity in the area does not affect the military commander’s duty – as the long arm of the State of Israel – to ensure the life, dignity and honor, and liberty of every person present in the area under belligerent occupation (see Y. Shany “Capacities and Inadequacies: a Look at the Two Separation Barrier Cases” 38 Isr. L. Rev. 230, 243 (2005)). Even if the military commander acted in a manner that conflicted the law of belligerent occupation at the time he agreed to the establishment of this or that settlement – and that issue is not before us, and we shall express no opinion on it – that does not release him from his duty according to the law of belligerent occupation itself, to preserve the lives, safety, and dignity of every one of the Israeli settlers. The ensuring of the safety of Israelis present in the area is cast upon the shoulders of the military commander (compare § 3 of The Fourth Geneva Convention). Professor Kretzmer discussed this:
“[A] theory that posits that the fact that civilians are living in an illegal settlement should prevent a party to the conflict from taking any measures to protect them would seem to contradict fundamental notions of international humanitarian law. After all, the measures may be needed to protect civilians (rather than the settlements in which they live) against a serious violation of IHL” (Kretzmer, at p. 93).
In its judgment in Physicians for Human Rights v. Prime Minister of Israel in 2009, concerning the humanitarian situation in the Gaza Strip consequent to the start of Israeli military operations (“Cast Lead”) there in December 2008, Israel’s High Court of Justice stated:
The fundamental provision of international humanitarian law that applies while conducting hostilities (both in a territory subject to a belligerent occupation and in the territory of the parties to the conflict) is enshrined in art. 27 of the  Fourth Geneva Convention, which provides that protected civilians – whether they are located in a territory that is subject to a belligerent occupation or a territory that is under the sovereignty of the parties to the conflict – are entitled in all circumstances, inter alia, to be humanely treated and to be protected against all acts of violence or threats thereof (see also art. 46 of the  Hague Regulations).
In July 2010, in a second update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated: “The IDF [Israel Defense Forces] operational orders emphasize the duty to protect the dignity of civilians in the course of an armed conflict”.
In its judgment in Physicians for Human Rights v. Commander of the IDF Forces in the West Bank in 2002, Israel’s High Court of Justice stated:
Though we are unable to express a position regarding the specific events mentioned in the petition … we see fit to emphasize that our combat forces are required to abide by the rules of humanitarian law regarding the care of the wounded, the ill and bodies of the deceased.
With reference to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states that all individuals falling under the power of a party to a conflict should, at a minimum, be treated in accordance with the principles of humanity.
Israel’s Manual on the Rules of Warfare (2006) states: “The disciplinary and punishment rules applicable in the army of the imprisoning country will also apply to the prisoners-of-war … [I]mprisonment under inhumane conditions [is] absolutely forbidden.
The manual further states: “Even in wartime, the IDF [Israel Defense Forces] shall act humanely, as part of Israel’s heritage as a Jewish and democratic state and a member of the family of civilized nations.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
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:
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 … 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 CA pp 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. … 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.
In its judgment in the Yassin case in 2002, Israel’s High Court of Justice stated:
7. It is appropriate to open this discussion with the normative framework of this case, as was done by Justice Shamgar in Sajadia. This is in response to the possible claim that, since the detainees being held in Kziot Camp are terrorists who have harmed innocent people, we should not consider their detention conditions. This argument is fundamentally incorrect. Those being detained in the Kziot Camp have not been tried; needless to say, they have not been convicted. They still enjoy the presumption of innocence. Justice Shamgar expressed this notion in Sajadia:
An administrative detainee has not been convicted, nor is he carrying out a sentence. He is detained in accordance with a decision made by an administrative-military authority, as an exceptional emergency means due to security reasons … The aim of the detention is to prevent security hazards, which arise from actions that the detainee is liable to commit, where there is no reasonable possibility of preventing such hazards through standard legal action, such as criminal proceedings, or by taking administrative steps with milder consequences … The difference between a convicted prisoner and a detainee being held in order to prevent security hazards, is manifest in the status of the administrative detainee and his detention conditions.
Sajadia, at 821. In the same spirit Justice Bach noted:
With all due respect for security considerations, we must not forget that we are talking about detainees deprived of liberty without their having been convicted of any crime in standard criminal proceedings. We must not be satisfied with a situation in which the detention conditions of these detainees are poorer than the conditions of prisoners who have been sentenced to imprisonment after being convicted.
Sajadia, at 831. In a different context, Justice Zamir indicated that:
Administrative detention deprives an individual of his liberty in the most severe fashion. Liberty is denied, not by the court, but rather by an administrative authority; not by a judicial proceeding, but rather by an administrative decision.
Not only should we not allow the detention conditions of administrative detainees to fall short of those of convicted prisoners, we should also strive to ensure that the conditions of detainees surpass those provided to prisoners. These detainees continue to enjoy the presumption of innocence. See HCJ 8259/96 The Association for the Protection of the Rights of Jewish Civilians in Israel v. Commander of the IDF Forces in the West Bank (unreported case). This approach was established by the Emergency Powers Regulations (Detention) (Holding Conditions in Administrative Detention)-1981 [hereinafter the Detention Regulations]. The security considerations that led to the detention of these people do not justify holding them under unsatisfactory conditions.
8. The detainees were lawfully deprived of their liberty. They were not, however, stripped of their humanity. In an affair that occurred more than twenty years ago, prior to the legislation of the Basic Law: Human Dignity and Liberty, I remarked:
Every person in Israel enjoys the basic right to bodily integrity and the protection of his dignity as a human being … Convicts and detainees are also entitled to the protection of their bodily integrity and human dignity. Prison walls do not come between the detainee and his human dignity.
HCJ 355/79 Catlan v. The Prison Service. This is especially true after the enactment of the Basic Law: Human Dignity and Liberty, “which does not focus on the proclamation of the existence of fundamental rights, but rather on their essence, their extent and their practical realization.” CA 5942/92 John Doe v. John Doe. (Shamgar, P.) Therefore, the army must ensure that the detainees be treated humanely, and in recognition of their human dignity. See The Center for the Defense of the Individual, at par. 22. The detention conditions must guarantee civilized and humane life. HCJ 221/80 Darvish v. The Prison Service. Human dignity, which constitutes the foundation of the Basic Law: Human Dignity and Liberty, together with the values of Israel as a Jewish and democratic state, forms the normative lens through which we examine the dentition [sic] conditions of detainees. This framework is not one-sided. Human liberty is not its sole consideration. Nor is national security its sole consideration. The framework attempts to achieve a balance – at times delicate – between the need to guarantee conditions of detention as humane as possible and the need to guarantee national security.
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).
10. Aside from these regulations, which concern the conditions of administrative detention, comprehensive rules concerning the conditions of “regular” detention may be found in other legislation and regulations. Section 9(a) of the Criminal Procedure (Jurisdiction and Enforcement – Detentions) Law-1996 states that “a detainee shall be held under suitable conditions, which shall not harm his health or dignity.” Detailed instructions may be found in the Criminal Procedure Regulations (Jurisdiction and Enforcement—Detentions) (Holding Conditions in Detention)-1997.
We shall now turn to the provisions of international law regarding detention conditions.
11. Israel is not an isolated island. She a member of an international system, which has set out standards concerning conditions of detention. The most significant of these may be found in article 10(1) of the International Covenant on Civil and Political Rights (1966), which states:
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
This rule, which has the force of customary international law, see The Center for the Defense of the Individual, at par. 23, is in harmony with the Basic Law: Human Dignity and Liberty, which protects the dignity of all persons, including detainees. Another important source of international law is the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. These principles were endorsed by the United Nations General Assembly in 1988. They establish principles for all forms of detention, including administrative detention. These principles, even if they are not directly binding in internal Israeli law, set forth standards by which any reasonable government authority should act. In this matter we must also refer to article 11(1) of the Guidelines of the Council of Europe Committee of Ministers on Human Rights and Fight Against Terrorism, which asserts that:
A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity.
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 consist 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.
In its judgment in the Public Committee against Torture in Israel case
in 2006, the Supreme Court of Israel stated: “[C]omprehensive legal rules deal with the status of prisoners of war. Thus, for example, prisoners of war … are to be ‘humanely treated’ (The Third Geneva Convention
, art. 13).”
In July 2010, in a second update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated: “The IDF [Israel Defense Forces] operational orders emphasize the duty to protect the dignity of civilians in the course of an armed conflict and to provide detainees with humane treatment”.
The ministry further stated: “The MAG [Military Advocate General] has directly referred for criminal investigation all allegations that … detainees were mistreated while in IDF custody.”