Report – Administrative Detention

i Table of Contents Advisory Committee v Acknowledgements vi Disclaimer vi Executive Summary vii Recommendations viii PART I Introduction 12 1. Factual Context 13 2. Domestic Legal Basis 17 3. Administrative Detention in the West Bank in Practice 20 4. Dispersal and Categorization 23 PART II International Humanitarian Law 27 1. Applicability 28 2. The Hague Regulations of 1907 29 3. The Fourth Geneva Convention 31 4. Additional Protocol I 38 5. Administrative Detention in the Occupied Territory 41 6. Control Measures and Respect for Fundamental Rights 42 7. Grounds for Administrative Detention 43 8. Procedural Rights 45 9. The Immediacy of Release upon cessation of Administrative Detention 50 10. Obligation of Humane Treatment 50 11. Conditions of Detention 52 ii 12. Prohibition against Unlawful Deportation and Forcible Transfer 54 PART III International Human Rights Law 59 1. Applicability 60 2. The Relationship between International Human Rights and International Humanitarian Law 62 3. Extraterritorial Application of International Human Rights Law 67 4. The International Covenant on Civil and Political Rights 69 5. The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 92 6. The situation of Israel and the Occupied Territory 98 7. The International Convention on the Elimination of All Forms of Racial Discrimination 104 8. The Convention on the Elimination of All Forms of Discrimination against Women 108 9. The Convention on the Rights of the Child and the Optional Protocol thereto on the involvement of children in armed conflict 112 PART IV The Compliance of the Israeli State practice of administrative detention with International Humanitarian Law and International Human Rights Law: The Main Findings 125 1. International Humanitarian Law 126 2. International Human Rights Law 129 PART V International Criminal Law 138 1. Introduction: Palestine as a State Party to the Rome Statute 139 of the International Criminal Court iii 2. The status of a preliminary examination 140 3. The Opening of an Investigation by the ICC Prosecutor under the Rome Statute 141 4. The Applicable Crimes Under Article 5 of the Rome Statute 150 5. The Specific Crimes Against Humanity 157 6. Article 8 of the Rome Statute: War Crimes 171 7. Specific War Crimes 172 iv Advisory Committee Valentina Azarova (International Law Centre, University of Manchester & Global Legal Action Network (GLAN)); Sahar Francis (Addameer); Ivan Karakashian (formerly Defence for Children International, now Norwegian Refugee Council); Mariagiulia Giuffrè (Edge Hill University); Chantal Meloni (University of Milan & ECCHR); Brad Parker (Defence for Children International); Nery Ramati (Gaby Lasky and Partners); Yael Stein (B’Tselem). v Acknowledgments The authors wish to express their gratitude to Edge Hill University, and, in particular, the members of the REF Committee, who provided the generous funding which enabled the research project to benefit from research assistance to complete the Report. They also wish to thank the members of the Advisory Committee for their support and very helpful feedback. The authors are grateful to Mariagiulia Giuffrè for her significant contribution to all research activities related to this project on administrative detention against Palestinians. They also wish to acknowledge the assistance of Luigi Daniele in the organisation of the dissemination events of the Report, and they are grateful to Donatella Manganaro and Marcantonio Pinizzotto for the creation and design of the cover page for the Report. Liverpool, September 2019 Disclaimer The legal analysis and recommendations of this Report represent the legal interpretation of the authors and their consideration of the suggestions of the Advisory Committee. The legal interpretation expressed herein represents that of the authors and does not necessarily reflect the position of the members of the Advisory Committee nor of Edge Hill University. vi Executive Summary The Report engages in a critical legal analysis of the Israeli State practice of administrative detention in the Occupied Palestinian Territory (OPT). Administrative detention consists of deprivation of liberty, without charge or trial, based, in the main, on secret evidence, which can be renewed indefinitely. It entails significant limitations on the fundamental rights of detainees, at the stages of arrest, interrogation, imposition and renewal of an administrative detention order, and the treatment in, and conditions of, detention. The Report commences with an overview of the legal character of Israel’s regime of administrative detention, which is a central element in the wider military governance of the Palestinian population in the OPT. It then subjects Israel’s use of administrative detention to a two-stage critical analysis. The first stage is based upon the extraterritorial application to the OPT of the norms of international humanitarian law and international human rights law. It reveals that the use of administrative detention against Palestinian civilians causes a number of grave breaches of both international humanitarian law and serious violations of international human rights law. The second stage considers the potential liability, under the Rome Statute of the International Criminal Court (ICC), for international crimes resulting from the Israeli State practice of administrative detention. This potential liability arises from the preliminary examination launched by the Prosecutor of the ICC, after Palestine became a State Party to the Rome Statute of the ICC in January 2015. The Report examines whether Israel’s use of administrative detention could amount to crimes against humanity and/or war crimes under the Rome Statute. The Report also provides recommendations to Israel, the European Union, UN Bodies and the Prosecutor of the International Criminal Court. vii Recommendations Israel The following recommendations reflect both the significant length of the military occupation of the OPT and the continuing requirement to demonstrate that this is a temporary, transitional phenomenon; End the unlawful practice of administrative detention used by Israel in the OTP, through enshrining the prohibition in law; Ensure that all existing administrative detainees are promptly released or charged with a substantive criminal offence compatible with international law; Reform the pre-trial and trial procedures of the military court system; On this basis, ensure that the following rights and freedoms of all individuals in the OPT are respected: a) All decisions to arrest civilians in the OPT must be based upon the reasonable suspicion of the individual’s commission of a criminal offence; b) Upon arrest, the individual must be informed, in a language which s/he understands of the reason(s) for the arrest and receive a copy of the arrest warrant; c) Every person arrested should be given a copy of the arrest warrant and no person should be held incommunicado; d) Ensure that the period of questioning, and any further requests for extension, are the same as those under the Israeli criminal code; e) The further questioning/interrogation of the individual detainee must (i) not involve torture or other forms of ill-treatment (ii) be video and audio recorded (iii) be held in the presence of the individual’s legal representative, (iv) and in the case of a child, also be in the presence of a parent or independent adult other than a legal representative; f) Ensure that arrested persons have access to their legal representative and family visits in the same way as any person detained, in Israel, under the Israeli criminal code; g) Ensure that the criminal offence(s) with which the individual is charged complies or comply with the requirements of international law and, as such, only criminalize or criminalizes serious harm; h) The evidence upon which the prosecution case is based must not be secret. The ISA’s evidence as a whole must be disclosed to the defendant and her/his legal representative prior to the trial; viii i) Palestinian lawyers should receive access to the entirety of the ISA’s evidence and be enabled to challenge its admissibility and probative value; j) Palestinian lawyers should have the possibility to submit their own evidence and bring their defence witness(es) to the hearing; k) A conviction will result in a non-renewable, determinate sentence, and the defendant must have the right of appeal; Ensure that forms of detention of Palestinians are subject to effective monitoring by an independent body; Adopt legislative measures establishing a non-derogable prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment; Adopt legislative measures and institutional practices which, in contrast to the present position, ensure prompt investigation and effective remedies for any person raising a claim of torture or other forms of cruel, inhuman or degrading treatment or punishment; Grant access to Israel and the Occupied Palestinian Territory for international human rights bodies and non-governmental organizations tasked to investigate alleged violations of fundamental rights of Palestinian detainees; Take all urgent and appropriate measures for the prompt ratification of the following international treaties: a) Fourth Hague Convention of 1907 and the annexed Hague Regulations; b) Additional Protocol I to the Geneva Conventions; c) Optional Protocol to the International Covenant on Civil and Political Rights; d) Optional Protocol to the UN Convention Against Torture,

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