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Detention of a Lebanese citizen under the Incarceration of Unlawful Combatants Law: the case of HA
documents: 1  |  Updates: 5 In early August 2006, during the Second Lebanon War, HA, a Lebanese citizen, was arrested in the village of Jibin in south Lebanon, while he was having coffee with his friends. After his arrest, an order was issued against him under the Incarceration of Unlawful Combatants Law 5762-2002, and he was held in the secret prison known as Facility 1391. Shortly after his arrest, his family transferred through the ICRC medical documents indicating HA had a mental illness, and he also reported this fact during his interrogation. It also came out that HA’s connection to the Hizbullah organization was limited to his receiving monetary assistance from the organization’s aid fund covering the cost of his medicine. A psychiatrist working for the Israeli Prison Services (IPS) who examined HA determined that there was no indication that HA had an active mental illness and concluded that there was no need for the drug treatment specified in the documents dent by his family. As part of the request for judicial review, HaMoked presented evidence that many Shiite Lebanese citizens had to rely on Hizbullah money, without which they had no access to health, education, electricity and water; HaMoked also argued that Israel had presented no proof that HA himself had carried out any activity on behalf of the organization. In March 2007, the Nazareth District Court rejected HaMoked’s arguments and ruled that HA had no mental illness, based on findings of the IPS psychiatrist.

HaMoked filed a prisoner petition to the court to instruct the IPS to allow the detainee to undergo another psychiatric evaluation by a psychiatrist appointed on his behalf, in the presence of his lawyer and with no warden within earshot. After lengthy proceedings, an evaluation meeting was conducted by a psychiatrist sent by HaMoked. This evaluation resulted in different findings and criticized the conclusions of the IPS psychiatrist and the cessation of drug treatment – as it was revealed that despite the opinion of the IPS psychiatrist, the IPS had been giving HA anti-psychotic medication since December 2006. HaMoked filed a new prisoner petition once it turned out that the drug treatment had been stopped.

HaMoked challenged the legality of the Incarceration of Unlawful Combatants Law, and the incarceration of HA under this law. HaMoked asserted that the Law contravened both international humanitarian law and Israeli law; that the definition of an unlawful combatant sought to create an intermediate status between civilian and combatant in order to strip detainees of the protections guaranteed to them by international humanitarian law; further, that Israel also was using this law to violate the rights of detainees to present a defense and due process, and empowers military officers to arrest individuals indefinitely and without trial.

In the judgment, issued June 11, 2008, the court conceded that the Law initiative stemmed from Israel’s desire to hold the detainees as bargaining chips, but added that the Law had been altered to conform with the provisions of international humanitarian law, and that its real aim was “to prevent a return to the circle of fighting of anyone endangering the security of the state as part of his activity”. And so, the justices accepted the provisions of the Law as proportionate because it was meant to apply during fighting in enemy territory, when many people are arrested.

On October 15, 2007, HA was released an as part of an exchange deal with Hizbullah.


Incarceration of Unlawful Combatants Law, 5762-2002
Law  |  4.3.2002
The Law regulating the incarceration of illegal combatants who are not entitled to prisoner-of-war status. The Law defines, inter alia, who is an "illegal combatant", what are his rights, and specifies when an incarceration order can be issued against him and the judicial review the order is subject to. Translation from the website of the Ministry of Justice
Updates
21.3.2016
The wrongful legislation trend continues: the Knesset adopts a legal amendment making it easier for the military to assign “unlawful combatant” status
14.10.2009
Without Trial – administrative detention of Palestinians by Israel and the Incarceration of Unlawful Combatants Law: A new report published by HaMoked and B'Tselem severely criticizes the holding of hundreds of Palestinians in detention without trial and states that Israel's sweeping use of this measure is unlawful
26.8.2009
Unexpectedly, after having spent over six and seven years in prison, two Palestinians from the Gaza Strip held in Israel under the Incarceration of Unlawful Combatants Law have been released: the two prisoners were placed in administrative detention in 2002 and 2003 and following the implementation of the disengagement plan, the Chief of Staff issued a warrant for their incarceration pursuant t...
17.10.2007
Lebanese prisoner represented by HaMoked was released on 15 October, 2007, following a deal between Israel and Hizbullah: The prisoner, who has a documented history of psychiatric illness, was arrested by the military during last summer’s Lebanon war while sitting at a coffee shop in his village with some friends*
9.8.2005
Following the end of military rule in the Gaza Strip, the State released three administrative detainees, residents of the Strip, but issued new detention orders against two others under the Incarceration of Unlawful Combatants Law: the orders were issued a few days after the Supreme Court declined to review the difficult questions raised by this Law, and ruled – based on the State's notice – th...
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