Minimum humanitarian standards, which must apply even under Article 5 of the Fourth Geneva Convention, require that "no sentence may be passed . . . except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure." Article 75 of Protocol I, "Fundamental Guarantees," provides authoritative guidance as to the due process guarantees that cannot be derogated under international humanitarian law. Section 4 of Article 75, concerning the prosecution of penal offenses related to the armed conflict, requires respect for the following generally recognized principles of judicial procedure:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
. . . .
(f) no one shall be compelled to testify against himself or to confess guilt;
(g) anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
. . . .
(i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly. . . .
The requirements that defendants not be forced to testify against themselves and that they have the right to cross-examine witnesses against them are regularly breached by Israel's trials of non-Palestinian Arab detainees transferred to Israel from Lebanon as well as by the administrative detention regime.
The Lebanese detainees have been held under administrative detention orders under Israel's Emergency Powers (Detention) Law of 1979. This regulates the use of this form of detention, and provides for renewable detention orders of up to six months. Only the Minister of Defense can issue such orders, and the law requires the presiding judge of the local District Court to review the order within forty-eight hours of the arrest.22
The 1979 law requires all proceedings under it to be in camera, whereby hearings in which detention orders are considered, handed down, or reviewed are secret. This provision has meant in the first instance that the hearings themselves are closed to outside observers. Furthermore, the injunction prevented Zvi Rish, the lawyer currently defending eighteen of the administrative detainees who are the subject of this report, from providing Human Rights Watch with the details of court sessions or with copies of the court orders in those cases.23
Closed hearings and non-disclosure of the basis for detention
Those held in administrative detention are usually detained on the basis of information which is disclosed only to the presiding judge. The usual justification for withholding the evidence is to protect intelligence sources that would be revealed if the case were prosecuted in a court where regular rules of evidence obtain. The law regulating administrative detention itself states that in judicial hearings to review the legality of the detention order, "it shall be lawful to deviate from the rules of evidence if the President of the District Court is satisfied that this will be conducive to the discovery of the truth." It explicitly permits the President of the District Court, who is the authority entrusted by law with reviewing the legality of the detention orders, to:
. accept evidence without the detainee or his representative being present and without disclosing the evidence to them if, after studying the evidence or hearing submissions, even in their absence, he is satisfied that disclosure of the evidence to either of them may impair state security or public security.24
The effect on due process of the requirement that all administrative detention proceedings be in camera has been exacerbated by the Israeli government's refusal to supply specific information regarding the basis for each detention, while preventing anyone involved in administrative proceedings-including defense counsel-from revealing even those limited statements that may find expression in a closed hearing.
The blackout on information concerning these cases is more extreme than the general practice concerning Palestinian administrative detainees from the Occupied Territories-in whose cases Israeli authorities occasionally release "fact sheets" setting out in general terms the detainees' supposed political affiliations and activities upon which the detention is based.
Administrative detention and international standards
In all circumstances, minimum humanitarian standards require that all persons detained or interned in connection with an international armed conflict "shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the . . . detention or internment have ceased to exist."25
Israel's practice of routine extensions of administrative detention, particularly in those cases in which detainees have been held for many years after the completion of prison sentences, also appears to violate the terms of the Fourth Geneva Convention's provision by which this measure is to be strictly exceptional. Article 78 of the convention permits the occupying power to order the detention of an individual "for imperative reasons of security" (emphasis added). The ICRC's Commentary to Article 78 stresses that "such measures can only be ordered for real and imperative reasons of security; their exceptional character must be preserved." Even if detained under the terms of Article 5 of the Fourth Geneva Convention-which the ICRC has condemned as a "regrettable concession to State expediency"-the government's practices have violated the requirement that administrative detention be a measure that is strictly exceptional. Rather, the routine extension of detention in these cases appears to obey strictly political imperatives. Consideration of the merits of the cases of individual detainees appears to have been subordinated to larger reasons of state in disregard to the norms of humanitarian law.
Release "with the minimum delay possible"
In all circumstances, minimum humanitarian standards require that all persons detained or interned in connection with an international armed conflict, with the exception of cases of arrest or detention for penal offenses, "shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist."26 The requirement that all administrative detention proceedings be in camera, as well as the Israeli government's refusal to divulge the substance of these hearings, in themselves reflect the lack of safeguards against the arbitrary application of Israel's system of administrative detention. More strikingly, the very existence of cases of administrative detainees who, having served prison terms, remain in detention nine years after their sentences ended without ever having been the object of a fair and public hearing, illustrates the arbitrary nature of these measures.
The right to counsel
The right to be afforded "all necessary rights and means of defence," includes the right to counsel of one's choosing.27
Under Israeli law, non-security detainees have a right to access to a lawyer "without delay" under normal circumstances.28 However, for detainees facing certain kinds of charges including those under the Defence(Emergency) Regulations of 1945 (DER),29 a judge may deny access to a lawyer for fifteen days. This exception is relevant to the Lebanese detainees in Israel, as many of these persons are charged under provisions of the DER relating to membership in "unlawful associations"30 and "unauthorized [military] drilling."31
Lebanese administrative detainees may be represented only by those attorneys who have received top security clearance. Under Article 8(b) of the Emergency Powers (Detention) Law of 1979, which is the statute regulating the use of administrative detention in Israel, the minister of justice is empowered to limit the right to representation, and until 1988 only lawyers with top security clearance could represent administrative detainees.32 Most Jewish Israeli lawyers who apply are given this level of clearance; however, some of the lawyers most active in the representation of Palestinian and Arab security detainees, such as Tamar Pelleg-Sryck, Andre Rosenthal, and Lea Tsemel, were refused it. For Palestinian lawyers with Israeli citizenship, obtaining this clearance is the exception rather than the rule. Thus, this legal hurdle prevents many of the Israeli lawyers who would be inclined to defend Arab administrative detainees, as well as the great majority of lawyers who share a common language with these detainees, from representing them. In 1988, the Israeli government narrowed the scope of the requirement so that it applied only to administrative detainees who are not residents of Israel or the West Bank and Gaza Strip.33
By comparison, administrative detainees in the Occupied Territories may be represented by any lawyer admitted to practice locally or in Israel.34
The requirement that counsel have high-level security clearance has interfered with the right of the detainees to be represented by counsel of their own choosing. This was made clear in 1991, when a number prisoners whose sentences had expired, including Hasan al-Hijazi, Kamal Riziq, and Husein Daqduq, appealed to the Israeli High Court of Justice to secure the implementation of their deportation orders. At the date of the hearing, the Israeliauthorities announced the replacement of the deportation orders with administrative detention orders. Their lawyers in the case, Lea Tsemel and Jawad Boulos, were then prevented from representing their clients in the appeals against the new orders because the lawyers did not have the required level of security clearance.35
The requirement that court sessions in administrative detention cases be held in camera prohibits lawyers from publicizing the details of the cases, and shields the proceedings from public scrutiny.36 As noted above, Zvi Rish, the lawyer who represents eighteen of the Lebanese administrative detainees in court, declined to provide Human Rights Watch with any details regarding the case. Rish was able, however, to comment on his inability to share the details of the case with others as a means of galvanizing support for his clients. "I have my own interest in publicizing this information. What is happening in this case should not be happening in a civilized society."37
Israel claims that Sheikh Abd al-Karim Obeid or Mustafa al-Dirani have legal representation (see Appendix B), but the secrecy concerning their cases has made this impossible to verify. Concerned about al-Dirani's continuing incommunicado detention and his medical condition, his family agreed in August 1996 that the assistance of an Israeli human rights lawyer should be sought in pursuing the case with Israeli authorities. Human Rights Watch then contacted Avigdor Feldman, a leading Israeli human rights lawyer. Feldman requested from the office of the Israeli military prosecutor permission to represent al-Dirani. Yaron Herman, a military prosecutor, subsequently responded that al-Dirani had refused Feldman's offer of representation and had stated that he did not wish to be represented by any lawyer. Feldman, who had no way to ascertain the veracity of this response, wrote to Herman requesting an Arabic-language refusal handwritten or signed by al-Dirani.38
Feldman subsequently received an Arabic-language letter from al-Dirani stating that, while not interested in legal representation, he was prepared to meet with Feldman.39 A meeting occurred on July 31, which was arranged on condition that Feldman not speak to the press about it. In addition, Feldman declined to inform Human Rights Watch about any of the details of the meeting, including the location of the encounter, in the absence of instructions from the Military Advocate General's office regarding what information could and could not be discussed. According to Feldman, several days later, a representative from that office told Feldman that he could say nothing about the meeting, except to say that it had occurred. In a further illustration of the secrecy surrounding the detainees who are the subject of this report, Feldman could not confirm or deny whether he formally served as al-Dirani's legal counsel. The representative even reprimanded Feldman for sharing with Human Rights Watch his general assessment of al-Dirani's state of health.40
22 In contrast, administrative detention orders in the West Bank and Gaza Strip, which are regulated not by domestic Israeli law but by local military orders, are issued by military officers; are not subject to automatic review; and are appealed to a military, as opposed to a civil, judge.
23 Human Rights Watch/Middle East telephone interview with Zvi Rish, December 22, 1996.
24 See Emergency Powers (Detention) Law, art. 6.
28 In May 1997, a new law came into force that requires a common criminal defendant to be allowed to meet with a lawyer "without delay." A police officer may prevent a meeting for up to forty-eight hours, but may exercise this power only to save lives or to prevent the commission of a crime. Criminal Procedure Law (Enforcement and Detention Powers) 1996.
29 The DER were imposed on Palestine by the British Mandate. Many of its provisions restrict many basic human rights such as the freedom of association, freedom from arbitrary detention, freedom of expression, freedom from arbitrary search and seizure. Many of the provisions of the DER remain in force in Israel, although in recent years they have been used relatively infrequently to prosecute Israeli citizens.
30 Article 85(1)(a). Hizballah's military wing, the Islamic Resistance, is engaged in armed resistance to Israel's occupation in Lebanon as well as attacks, often indiscriminate, inside Israel itself. According to Israel's security services, "Hizballah's stated objectives include eliminating the State of Israel." See Appendix B.
31 According to Article 62 of the DER,
No person shall
(a) train or drill any other person to the use of arms or the practice of military exercises, movements or evolutions, or
(b) receive any such training or drilling, or
(c) be present at any such training or drilling.
32 Articles 316-18 of the Law of Military Judgments 1955 regulate the right to represent defendants in military courts, and authorize a special committee to grant attorneys two levels of security clearance. A High Court Justice, two attorneys chosen by the Israeli Bar Association, the Director of the Ministry of Justice, and the Military Attorney General sit on this special committee. Unlike the highest-level security clearance, which allows representation in any trial, a mid-level clearance does not allow an attorney to represent a detainee tried in camera. Since by law administrative detention proceedings are held in camera, only attorneys with the highest-level clearance may participate in those proceedings.
33 Order Concerning Emergency Powers (Detention) (Restrictions on the Right to Representation) 1988, art. 1.
34 Al-Haq, A Nation Under Siege (Ramallah: Al-Haq, 1990), p. 296; Human Rights Watch/Middle East telephone interview with Eliahu Abram, HaMoked, Jerusalem, April 16, 1997.
35 "Nazareth's HRA says Israel keeping Arabs in prison beyond sentence to trade them later," Al-Fajr, July 1, 1991, p. 9.
36 Article 9 of the Emergency Powers (Detention) Law requires that "[h]earings in proceedings under this Law shall be held in camera." In some cases, judges have permitted disclosure of a few details of administrative detention cases. For example, in the case of a petition by this group of eighteen against the conditions of their detention, the Israeli High Court permitted disclosure of the filing of the appeal, though not of the contents of the appeal nor of the prisoners' identity or place of detention. "Lebanese Prisoners Demand Better Conditions," Agence France-Presse, January 23, 1997.
37 Human Rights Watch/Middle East telephone interview with Zvi Rish, December 22, 1996.
38 Human Rights Watch/Middle East telephone interview with Avigdor Feldman, Tel Aviv, March 10, 1997.
39 Letter from Avigdor Feldman to Human Rights Watch/Middle East, July 30, 1997.
40 Human Rights Watch/Middle East telephone interviews, July 31, 1997; August 4, 1997; August 21, 1997.