Report of the Working Group on Arbitrary Detention – CHR – SecGen report

CIVIL AND POLITICAL RIGHTS, INCLUDING QUESTIONS OF:

TORTURE AND DETENTION

Report of the Working Group on Arbitrary Detention

Executive summary

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The Working Group on Arbitrary Detention was established by resolution 1991/42 of the Commission on Human Rights, and entrusted with the investigation of instances of alleged arbitrary deprivation of liberty. The mandate of the Group was clarified and extended by Commission resolution 1997/50 to cover the issue of administrative custody of asylum-seekers and immigrants.

During the reporting period, the Working Group adopted 36 Opinions concerning 24 countries and 115 individuals. In 27 Opinions, it considered the deprivation of liberty to be arbitrary. In the same period, the Working Group registered and transmitted to Governments 30 communications.

Also during the reporting period, the Working Group transmitted a total of 101 urgent actions to 36 Governments and the Palestinian Authority, concerning a total of 579 individuals. Fifty-six of these urgent appeals were joint actions with other thematic or country mandates of the Commission on Human Rights. In 33 cases, the Governments concerned, or the sources of the allegations, informed the Working Group that they had taken measures to remedy the situation of the victims. During its twenty-sixth session, the Group also adopted a legal opinion in respect of the examination of communications and handling of urgent appeals concerning detention at the prison of Al-Khiam in southern Lebanon.

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I. ACTIVITIES OF THE WORKING GROUP

2.   The present report covers the period January to December 1999, during which the Working Group held its twenty-fourth, twenty-fifth and twenty-sixth sessions.

A. Handling of communications addressed to the Working Group

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3.   Handling of communications concerning detention at the Al-Khiam prison (southern Lebanon)

11.   The Working Group has already given its views on the arbitrary nature (category III – Opinion No. 9/1998) of the deprivation of liberty of persons held at Al-Khiam. The question of whether this situation should be attributed to the Government of Lebanon, to the Government of Israel or to the South Lebanon Army (SLA) must be decided, however, for the Group to be able to deal effectively with the communications and urgent appeals before it. In the light of the documents and replies from Governments addressed to the Group on this matter, the respective positions may be summarized as follows:

(a)   Lebanon: the Government of Lebanon, for its part, and especially insofar as the Al-Khiam prison is concerned, feels that it cannot be held accountable since it is incontrovertibly not able to exercise any control over this institution;

(b)   Israel: in its replies, the Government does not contest the existence of the Al-Khiam detention centre – which it describes as a “prison” – but has declined all responsibility on many occasions in these terms: “Khiam has always been and remains solely under the control of the South Lebanon Army (SLA). All inquiries regarding Khiam should therefore be addressed to them.” Recently, when replying to an urgent appeal, the Government maintained its position and added that the Working Group should henceforth refer directly to General Lahad, the commander of the SLA, and not to the mission of Israel;

(c)   SLA: as this is not a State entity, the Working Group feels that it cannot be regarded as a valid interlocutor, within the framework of the Group’s mandate, unless it has exercised the prerogatives of a State autonomously; in view of the developments outlined below, however, this appears not to be the case.

12.   It thus remains to be determined whether or not Israel exercises a form of authority over the territory including the Al-Khiam detention centre that would entitle the Group to address the said communications and urgent appeals to the Government of Israel. It should be recalled that the part of Lebanese territory concerned, which is said to be an “occupied zone”, was unilaterally defined by Israel as a “security zone” on its northern border after the war of 1982. The question is whether the Israeli Defense Forces (IDF) are still exercising permanent control over this zone, thereby making it possible for the SLA to be considered as acting on behalf of the IDF, and therefore of Israel, which would then bear responsibility in respect of Al-Khiam.

13.   In reaching an opinion, the Group referred to the following documents:

(a)   The Hague Convention concerning Laws and Customs of War on Land, of 18 October 1907, and more specifically the Regulations annexed to that Convention;

(b)   The relevant provisions of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949;

(c)   The judgement of the International Court of Justice in the Nicaragua case and the recent sentencing judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (Prosecutor v. Dusko Tadic case).

As well as an affidavit from Brigadier-General Dan Halutz, former chief of IDF operations and responsible, in that capacity, for the activities pursued in the southern Lebanon security zone. This document is all the more important because it expressly indicates that the statement was made “on behalf of and with the consent of the respondent Minister of Defense” (affidavit, para. 1).

14.   In the light of these texts, the Working Group examined the applicable criteria, under present international law, whereby a State may be held to be legally imputable for acts committed by individuals or groups of individuals who, while not officials of the State, are de facto acting on its behalf. Far from being rigid, these criteria are evolving, as attested since the beginning of the century by the following four decisive dates:

(a)  First stage

1907: adoption on 1 October of The Hague Convention and the Regulations annexed thereto, whose scope is limited on account of being circumscribed, at the time, to the front zone (J.P. Pictet, Commentary IV to the Geneva Convention, ed. ICRC, 1956, p. 7). Nevertheless, the following criteria had already been adopted. According to article 42 of the Regulations:

“Territory is considered occupied when it is actually placed under the authority of the hostile army”;

“The occupation extends only to the territory where such authority has been established and can be exercised”;

It therefore follows that the occupation is assimilated to a de facto situation, since the Regulations cite the hypothetical situation in which a hostile army occupies a foreign territory and can exercise the authority it has established therein.

The Government does not deny that The Hague Convention and Regulations are directly applicable under Israeli law (affidavit, para. 14), but it believes that one of the essential conditions has not been fulfilled, since no Israeli authority has been or is being established in the zone. Is this restrictive interpretation still appropriate given the developments in international law which took place with the entry into force of the “law of Geneva”?

(b)  Second stage 

  1949: adoption on 12 August of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, which elaborates upon and clarifies the principles set forth in 1907. According to this instrument, the status of persons deprived of liberty in conditions such as those obtaining at Al-Khiam is governed more especially by the provisions of articles 78 to 135, which limit the right of the occupying Power to take preventive security measures, in the form of detention, against protected persons not being prosecuted in the courts, and which define in detail the conditions of detention. Israel, it should be noted, is a party to the Fourth Geneva Convention.

(c)   Third stage

  1987: judgement of the International Court of Justice in the Nicaragua case: the issue was whether a foreign State, in this case the United States (on the grounds that it had been financing, organizing, equipping, training and helping to plan the operations of military or paramilitary groups called “ Contras”), was responsible for acts contrary to human rights and humanitarian law committed by the “Contras”. The Court refused to take the view that responsibility was necessarily to be imputed to the United States for all the acts committed by the “Contras”, but found that it was responsible for its own conduct in relation to those acts (financing, control, guidance, etc.).

(d)  Fourth stage

  July 1999: judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia. The issue was whether, for purposes of characterizing the conflict as being of an international or a non-international nature, the Bosnian Serb Forces had been dependent upon and under the control of the Army of the Federal Republic of Yugoslavia. The Tribunal, moving further in the direction taken since 1907, relaxed the requirement that specific instructions must be given, considering that it was enough to show “that this Army (FRY) exercised overall control over the Bosnian Serb Forces […]. Such control manifested itself not only in financial, logistical and other assistance and support, but also, and more importantly, in terms of participation in the general direction, coordination and supervision of the activities and operations of the [Bosnian Serb Forces].”

15.   These, finally, are the criteria endorsed by international law in the matter. Does the status of Al-Khiam fall within these criteria? In other words, while it is not and cannot be denied that the Al-Khiam centre is administered by the SLA (affidavit, para. 48), it must nevertheless be decided, in the light of the above criteria, whether the SLA, as administrator, is acting on behalf of the IDF and hence of Israel.

16.   The Government’s argument rests on a restrictive interpretation of article 42 of the 1907 Convention: in the terms of this article, according to the Government, a territory is considered to be under belligerent occupation when it is actually under military authority. Two conditions must be fulfilled: first, that the authority of a military government has been established (affidavit, para. 15-a) and, second, that the said authority can be implemented (affidavit, para. 15-b). These two requirements mean that the territory must be “practically subject to the absolute control of the foreign army” (affidavit, para. 15 fine ). The Government contends that while this was indeed the case between 1982 and 1985 during the war in Lebanon, it is no longer so today. In 1985, the Government decided to withdraw its troops gradually and redeploy the IDF to the north, along the Israeli-Lebanese border (affidavit, paras. 17-18). Accordingly, the nature of Israel’s presence in the zone is “ completely different [from that] maintained up to 1995 in Judea, Samaria or Gaza, … as part of implementing effective control of the territory” (affidavit, para. 23).

17.   The question to be asked now is whether, in view of the information that has just been analysed, the criteria endorsed by international law at its most recent stage of development are applicable here. This appears to be the case, in the light of the following information extracted from the above-mentioned affidavit:

(a)   Financial assistance : “The State of Israel assists the SLA, among other ways, through financing weapons and maintenance” (affidavit, para. 40). “It was decided to cease the direct payment of salaries to members of the SLA who serve in Al-Khiam, and that will be done starting from the next salary” (affidavit, para. 54);

(b)  Logistical assistance:

(c)   Other assistance and support:

(d)   Cooperation : “In the framework of the cooperation between the State of Israel and the SLA […], at Israel's request, [SLA] stopped the Red Cross visits and family visits at the facility during the period in which Hizbollah held the body of Itamar lliya (RIP)” (affidavit, para. 45).

(e)  Coordination:

18.   In the light of the foregoing, the Working Group considers that it is justified in addressing the communications and urgent appeals concerning detention at Al-Khiam to the Israeli Government, inasmuch as it has been sufficiently demonstrated that the SLA is acting on behalf of the IDF.

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