Prisoners: International Law
Administrative detention, also known as internment, is the imprisonment of individuals without charge or trial by administrative rather than judicial procedure. The nature of administrative detention under international law should be clarified from the outset. Both article 9 of the Universal Declaration of Human Rights and article 9 (1) of the International Covenant on Civil and Political Rights state that "no one shall be subjected to arbitrary arrest or detention" and that "no one shall be deprived of his liberty except on such grounds and in ccordance with such procedures as are established by law". The term "arbitrary" does not just mean "against the law". It should be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. On the right to due process, article 10 of the Universal Declaration of Human Rights states that "everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him".
Pursuant to the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, it may not be used as a means of punishment and must only serve as an exceptional measure taken for "imperative reasons of security". However, it is highly questionable whether "imperative reasons of security" demand that hundreds of persons be detained without charge, trial, or the right to have their imprisonment reviewed by an impartial body. It has been emphasized that administrative detention has an exceptional nature. However, with these numbers of Palestinians having been administratively detained, it reflects actual practice in Palestine. According to humanitarian principles governing administrative detention, those detained without charge or trial are to receive greater privileges than ordinary detainees.
According to Principle 11 of the United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, provides that: "a person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial [officer] or other authority". These principles are considered applicable at all times and in all circumstances, including states of emergency.
The international community has demonstrated its commitment to an international legal standard prohibiting torture and cruel, inhuman or degrading treatment or punishment. A large body of international legal authority has evolved that unequivocally forbids the use of torture and other ill-treatment both during times of peace and of armed conflict. Thus, the prohibition of torture and other ill-treatment has come to be considered a principle of customary international law, to which all nations are bound under all circumstances.
The prohibition is embodied in the Universal Declaration of Human Rights, which states in Article 5: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". That right is affirmed verbatim in Article 7 of the International Covenant on Civil and Political Rights (ICCPR). Pursuant to Article 4(2) of the ICCPR, a state party may not take measures derogating from its obligations under Article 7, even "[I]n time of public emergency which threatens the life of the nation".
In addition, provisions of humanitarian law treaties, such as Article 3 of the 1949 Geneva Conventions, prohibit the subjection of protected persons to, inter alia, "cruel treatment and torture", both in the context of international and non-international armed conflict. Torture is considered a "grave breach" of the Fourth Geneva Convention (Article 147).
The Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the U.N. on December 9, 1975, stated in Article 2 that "[T]orture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment", while stressing in Article 3 that no state may permit or tolerate any of the above under any circumstances. The 1984 U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture in Article 1 as:
"[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent or incidental to, lawful sanctions".6
Human rights instruments stress the need for effective means to prevent and to provide remedies for acts of torture. The Convention against Torture requires in Article 2 that "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction". The Convention also obliges states parties to review interrogation rules and practices to prevent torture (Article 10); to investigate impartially allegations of torture (Article 11); and to ensure that any statement found to have been obtained through torture shall not be used as evidence in judicial proceedings, except against the person accused of torture (Article 15).
The Fourth Geneva Convention also requires states to act forcefully to prevent acts of torture. Article 146 calls on High Contracting Parties to search for and bring to trial all persons alleged to have committed, or to have ordered to be committed, grave breaches of the Convention, including acts of torture or inhuman treatment.