Practice Relating to Rule 87. Humane Treatment
Section D. Persons deprived of their liberty
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.”