The court has confirmed the constitutionality of the Incarceration of Unlawful Combatants Law (“the Law,”) rejecting the appeals submitted by HaMoked on behalf of two Palestinians from the Gaza Strip who have been held in Israeli prisons for five and six years respectively. The Appellants were put under administrative detention in 2002 and 2003 on the basis of orders issued by the military commander in Gaza. After the military redeployment in the Gaza Strip (the Disengagement) and the announcement of the end of military rule in the area, new detention orders were issued against the two men under the Incarceration of Unlawful Combatants Law. The ruling issued on 11 June 2008 concludes four appeals against the decisions of the district court in the framework of the periodic judicial review of the detainees’ cases. Among other arguments, the appeals claim that the Law is unconstitutional since it injures the rights to liberty and dignity established in Basic Law: Human Dignity and Liberty.
Israel enacted the Law in 2000 after the High Court of Justice (HCJ) ruled that Lebanese detainees could not be held in administrative detention as bargaining chips without their presenting any tangible security danger. The Law was intended to circumvent the HCJ and to enable Israel to continue to hold Lebanese detainees lawfully. The Law empowers Israel to hold persons defined as “unlawful combatants” in detention for an unlimited period of time. Under the Law, "unlawful combatants" are persons who took part in acts of hostility against Israel, or formed part of a force that commits such actions against it, regarding which the conditions granting the status of prisoner of war do not apply. The court agreed that the Law was initiated in the context of Israel’s desire to hold detainees as bargaining chips, but added that it had since been amended and adapted to the provisions of international humanitarian law. The court further ruled that the real purpose of the Law is to prevent “a person who represents a threat to the security of the state because of his activity or his belonging to a terrorist organization from returning to the cycle of hostilities."
The court accepted HaMoked’s argument that international law recognizes only two categories – “combatants” and “civilians,” yet ruled that the Law does not contradict this principle of international law, and that the “unlawful combatants” addressed by the Law are a sub-category of civilians. According to the court, unlawful combatants may be residents of a foreign country that is an enemy state, who belong to a terror organization. The court ruled that the Law does not apply to residents and citizens of Israel, and noted that it should not be applied to the residents of the West Bank so long as it was an occupied territory. The position of the court is that since the end of military rule in the Gaza Strip in September 2005, residents of the Gaza Strip may also fall under this definition. It should be noted that this ruling is discriminatory: it discriminates between residents and citizens of Israel and foreign residents who are present (willingly or otherwise) in Israel, and it effectively establishes one arrangement for “internal elements” and another for “external elements.” A similar British law relating to the administrative detention of foreign citizens only, was struck down by the House of Lords on precisely these grounds.
While international law permits the seizure of combatants and their holding as prisoners of war pending the end of hostilities, civilians may only be detained in exceptional circumstances: if there is an absolute security necessity and if the detainee represents an individual threat; such detentions must be examined at least twice a year (Articles 42 and 78 of the Fourth Geneva Convention). A similar arrangement also exists under the Administrative Detentions Law in Israel, which hitherto has been used for the detention of citizens of Arab countries. The powers granted in the Law regarding “unlawful combatants” combine the worst aspects of both tools and ostensibly permit the holding of civilians, regardless of personal threat, pending the cessation of hostilities. The court declares that the mechanism for detention under the Law is similar to the mechanism of administrative detention in every respect; in other words, that the imprisonment of unlawful combatants is similar to administrative detention, but merely under a different law. As for the Appellants’ argument that the Law renders the requirement to prove the detainee poses an individual threat meaningless, the court accepts this point on the declarative level. In practical terms, however, it empties this important concept of any meaning. The court rules: “[I]n order to establish a ground for detention with regard to someone who is a member of an active terrorist organization whose self-declared goal is to fight unceasingly against the State of Israel, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that are sufficient to include him in the cycle of hostilities in its broad sense, in such a way that his detention will be justified under the law… It should be noted that providing the conditions of the definition of an ‘unlawful combatant’ in the aforesaid sense naturally includes proof of an individual threat that derives from the type of involvement in the organization.”
However, the court refused to establish that section 7 of the Law, according to which the release of an “unlawful combatant” will harm state security unless proved otherwise, is constitutional. The court explains that the state has not yet exercised this assumption and it has not been required to rule on the issue. It should be clarified that President Beinisch, who wrote the ruling, does note the problematic nature of section 7; while refraining from stating so explicitly, she implies that it fails to meet the principles of international law embodied in Articles 42 and 78 of the Genera Convention. Justice Levy notes explicitly that there is a discrepancy between the principles of international law and the terminology of the Law and, accordingly, the legislature should give its prompt attention to the matter.
The court ignored the individual examination of the Appellants’ cases and attempted to confine itself to the general interpretation of the purpose of the Law. Thus, the court accepted various articles of the Law as proportionate, since it is supposed to apply during time of combat, in enemy territory, and while performing mass detentions. The court did not address the fact that the Appellants were not detained in such circumstances nor, indeed, in the framework of this Law. Moreover, there is an unexplained discrepancy between this decision and the ruling in the Mar’ab case, in which the court was also asked to examine the constitutionality of military procedures extending the period of time for bringing a detainee before a judge. In that case a ceiling of 12 days was established, while in the present case the ceiling of 14 days established in the Law was approved.
Some positive aspects of the ruling should be noted. It explicitly establishes that the constitutionality of the Law is to be interpreted in accordance with the provisions of international law and implements this principle in practice. The ruling also establishes explicitly, for the first time, that “where there is a lacuna in the laws of armed conflict… it is possible to fill it by resorting to international human rights law.” In addition, it is extremely important that the court agrees that conflicts outside Israel between Israel and “terrorist organizations” (such as Hizbullah) have the status of international armed conflict, and hence are subject to international humanitarian law.