Security Prisoner
Security Detainee
Administrative Detainee

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 – that at the time, there were no detainees being held pursuant to the Law, therefore the issue "has become theoretical"

The Supreme Court deleted appeals regarding the constitutionality of the Incarceration of Unlawful Combatants Law (hereinafter: the Law), which were filed by four foreign nationals who had been incarcerated in Israel by force of this Law. One of them, Fauzi Ayoub, a citizen of Lebanon and Canada, was represented in the proceedings by an attorney from HaMoked: Center for Defence of the Individual. The appellants have long since been released as part of a prisoner exchange agreement with Hezbollah. The Court accepted the State's position that in light of this, and since no other person was being held by force of this law, the questions raised by the appeals were purely academic and unnecessary. Thus, the Court evaded a review of the difficult questions of principle relating to this Law. Additionally, a decision in the appeals would have had a direct impact on the petitioners' future ability to claim damages from the State, in the event that the Law would be cancelled.                                                  

The appeals were submitted to the Supreme Court against a decision by the District Court, given in the framework of a judicial review of these four individuals' detention. On 10 March 2003, District Court Judge, Zecharia Caspi, ruled that the Law is constitutional and does not contradict international law. 

The Incarceration of Unlawful Combatants Law was designed to enable Israel to hold detainees as bargaining chips for the purpose of recovering Israeli captives and missing persons –  a practice expressly prohibited by the court in FCH 7048/97 – John Does v. the Minister of Defense. This basic purpose which formed the grounds for passing the Law may be surmised, inter alia, from the legal and public debates which were conducted following the publication of the proposed bill, and later – of the Law itself. The Law institutes an administrative detention of sorts, which is not subject to the usual rules pertaining to administrative detention – neither those set out in international law, nor in domestic Israeli legislation. The Law does so by forming a new status, which does not exist in international law, of "unlawful combatants". International law only acknowledges combatants, who may be held as prisoners of war (subject to regulations regarding the holding of prisoners of war), and civilians (who may be held under administrative detention in unique circumstances, in which case they must be granted different guarantees for minimizing the injury to their liberty). 

The District Court was not impressed by these arguments. It ruled that the Law does not contradict international law, and that the amendment to the original bill – stipulating that the authority to issue an order of detention may be exercised only on the condition that releasing the person concerned would harm state security - constitutes a substantial shift towards a legitimate purpose. 

To view the District Court's decision sated 10 March 2003 (Hebrew) (02) 627 1698   (02) 627 6317

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