Security Prisoner
Security Detainee
Administrative Detainee

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 to the Law

The two newly freed prisoners (released on 18 August 2009) were placed in administrative detention in 2002 and 2003. Upon termination of the military administration in the Gaza Strip and the revocation of military law following the implementation of the disengagement plan in September 2005, all administrative detainees from the Gaza Strip were released, except for these two and a warrant for their arrest pursuant to the Incarceration of Unlawful Combatants Law was issued. Until the second Lebanon war these were the only two detainees held by Israel under this Law. It should be noted that just days before the Chief of Staff issued the detention warrants, the Supreme Court refrained from holding a review of the constitutional questions raised by the Law as the issue had become “theoretical” and Israel was not holding anyone in custody under the Law.

As recalled, Israel enacted the Law in 2000, after the Supreme Court ruled that Lebanese detainees may not be held as bargaining chips without posing a real threat to security. The Unlawful Combatants Law allowed Israel to bypass the Court’s ruling and continue to hold the Lebanese detainees lawfully. The Law empowers Israel to incarcerate persons deemed to be “unlawful combatants”  -  persons who had taken part in hostilities against Israel or are members of an organization which carries out such hostilities against it and do not satisfy the conditions for prisoner-of-war status. Israel may hold such persons for an unlimited time. The Law in fact created a new status, which does not exist in international law, “unlawful combatants”. International law acknowledges only combatants, who may be held as prisoners of war (while following the provisions regarding holding prisoners of war) and civilians (who may be held in administrative detention under special circumstances while they benefit from certain guarantees designed to limit the infringement on their freedom).

In the context of appeals filed by HaMoked on behalf of the two prisoners, the Court has been forced to review the constitutionality of the Law, after some years of delay. The judgment rendered on 11 June 2008, concludes four appeals against decisions of the Magistrates’ Court in the framework of the periodic judicial reviews held regarding the two over the years of their incarceration. In the appeals, it was claimed, inter alia, that the Law was unconstitutional as it violated the rights to liberty and dignity entrenched in Basic Law: Human Dignity and Liberty.

In the judgment, the Court agreed that the initiative for enacting the Law was brought up against the background of Israel’s desire to hold detainees as bargaining chips but added that the Law had undergone changes and was modified to conform to the provisions of international humanitarian law and that its real purpose was 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 ignored the request for an individual examination of the Appellants’ cases and took pains to adhere to a general interpretation of the Law and its purpose. Thus, the Justices accepted the various sections of the Law as proportionate, as the Law is to apply during wartime, on enemy territory and at a time when many arrests are made. The Court did not address the fact that the Appellants were not detained in such circumstances, nor indeed pursuant to this Law. The Court also did not address the length of their incarceration.

Following the judgment, HaMoked continued to represent the two in the periodic judicial reviews and submitted appeals as required. Suddenly, on 18 August 2009, the two were unexpectedly released, after having been incarcerated, in confinement for some of the time – one for seven years and four months and the other for six and a half years, without charges and without a trial. Data provided to HaMoked indicates that ten Palestinians from the Gaza Strip are currently incarcerated as unlawful combatants, without having been tried. HaMoked: Center for the Defence of the Individual calls upon Israel to immediately cease use of the Incarceration of Unlawful Combatants Law and take action toward having it revoked.

Some of the details in this case are still confidential under court order. An application to remove confidentiality has been filed with the Court and upon receipt of authorization, they will be available for viewing on HaMoked’s website.

For further details regarding the judgment of 11 June 2008

For further details regarding the judgment of 8 September 2005 (02) 627 1698   (02) 627 6317

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