Administrative detention has been a contentious topic for international lawyers since its invocation by governments claiming that it is a principal tool in the often-lawless global ‘War on Terror’. Despite the popularity that this mechanism has earned amongst a growing number of states, principally those participating in the ‘War on Terror’, it has been neglected that the use of preemptive detention is illegal when used arbitrarily and disproportionately in a manner that does not allow for any remedy at all to be sought against this egregious violation of the fundamental human right not to be subjected to arbitrary deprivation of liberty.
Israel’s extensive and systematic use of the mechanism of administrative detention very clearly violates international law. Israel has been holding hundreds of Palestinians for months and years under administrative orders, without bringing their case before the prosecutor due to lack of evidence. By doing so, it denies them rights to which ordinary detainees in criminal proceedings are entitled: they do not know why they are detained, when they will go be released and what evidence exists against them, thereby being deprived of their right to a fair trial.
The extensiveness of this practice – namely, the fact that today there are 335 men, women and children being deprived of their liberties through this mechanism – violates the exception criterion that is imperative to the use of this inherently draconian measure of limitation available in international human rights law. By upholding a declaration of a never-ending “state of emergency”, Israel has been detaining hundreds of Palestinians under renewable administrative orders without an end in sight (See the recently published report by two NGOs, Btselem and HaMoked).
The Israeli Unlawful Combatants Law 2002 (amended in 2008), also discussed by this recently published report, establishes another form of administrative detention – one that is more permissive and less demanding in terms of the procedures required of the state. It enables the state to carry out arrests of a larger scale, for unlimited periods of time and without any judicial review. The provisions of the law follow the “membership approach” in the sense that they permit the detention even of a person who is a “member of a force carrying out hostilities against the State of Israel”, and not only someone who is proved to present a personal and direct danger to the security of the state. Practice shows that many detentions are exercised as punishment for a past act, instead of serving a preventative purpose that is based on clear, convincing, updated and sufficient administrative evidence. Interestingly, the report also details how the Israeli Supreme Court has rejected the legal challenges that have been made to the legality of this law’s provisions (See, for a discussion of the monumental Unlawful Combatants judgment, here and here).
Scholars have covered the topic of administrative detention extensively, both as a mechanism in the ‘War on Terror’, thereby also examining the applicability of traditional international humanitarian law (IHL) to these situations. An IHL analysis of the use of preventative detention is very different to that under the rules of international human rights law, namely as a derogation to Article 4 of the ICCPR, such a derogation being only possible “in time of public emergency which threatens the life of the nation” and “to the extent strictly required by the exigencies of the situation” (See, e.g., de Zayas’ article in the IRRC; amongst many others). The two sets of rules are applicable to different factual situations – one in time of ongoing armed conflict and intense hostilities, namely Article 78 of the Fourth Geneva Convention and the other in times of peace or arguably also in the ‘War on Terror’ – and therefore unquestionably present different positions on the legality of the use of preemptive detention.
A principled question that is not uncontroversial is still at stake, namely, whether the indefinite detention of civilians is permitted in time of armed conflict? (See Goodman’s article on the detention of civilians in armed conflict for a near comprehensive discussion). And, secondly, what is the appropriate threshold of ‘dangerousness’ that should be delimited in order to justify the exercise of such means in order for them to comply with the “extent strictly required by the exigencies of the situation”? Notably, even in those cases concerning the most dangerous individuals, the enjoyment of the procedural right to a fair trial must be strictly ensured.
This subject matter also reminds us of more general questions on the relevance of traditional IHL rules in the ‘War on Terror’ as the whole; legal queries that were born in the wake of the attacks of 11 September 2001 and have arguably lost much of their momentum since (See, on the relevance question, Belz’s article). Still, despite there being a number of unresolved legal questions in this regard, governments continue to use draconian measures in their self-professed ‘wars on terror’, and are afforded a very unexpected and unacceptable leniency in the derogation from fundamental norms of international law by the international community. Over the last eight years, this has unquestionably contributed to the distortion of even some of the most solid and uncontested international laws. The United States has unquestionably been at the lead of advocating for the legality of this practice by continuing to use illegal detentions, thereby curbing the limitations on the acceptability of such practices and legitimising their use by nations worldwide.
Detention cannot be a substitute for a fair process and punishment, and it cannot be systematised to become the rule and not the exception, which is what international law prescribes. Whether the fundamental legality of the mechanism of preemptive administrative detention will ever be decisively revoked by the international community is still a contentious issue. Nevertheless, the illegality of the arbitrary and lawless deprivation of liberty from those who are not afforded even the basic right to a fair trial is still a basic pillar of international human rights law and an unequivocal customary norm.