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The wrongful legislation trend continues: the Knesset adopts a legal amendment making it easier for the military to assign “unlawful combatant” status

International law prohibits the detention without trial of a resident of an occupied territory other than in highly exceptional cases. Despite that, Israel implements a policy which allows for mass arrests of residents of the OPT and their incarceration without trial, even for long periods. This wrongful policy has been instituted through a selection of laws, among them the Incarceration of Unlawful Combatants Law, 5762-2002, which regulates the arrest without trial of people defined by the state as “unlawful combatants”, making them unentitled for the protected status of prisoner of war under international humanitarian law. The class of “unlawful combatant” – a non-existent category in international law – is defined Israeli law, in this context, as “a person who has participated in hostile acts against the State of Israel, whether directly or indirectly, or is belongs to a force perpetrating hostile acts against the State of Israel, for whom the conditions granting prisoner-of-war status in international humanitarian law […] do not apply”.

Following the Israeli military’s withdrawal (disengagement) from the Gaza Strip in September 2005, the military order for holding Gazans in administrative detention expired. Since then, Israel has been using the Incarceration of Unlawful Combatants Law to hold Palestinians from Gaza without trial. Thus, according to data HaMoked received from the military on December 23, 2014, during the war in Gaza in the summer of 2014, Israel arrested 159 individuals who were taken to its territory and held inside there pursuant to this law, as well as the Israeli detention laws and criminal law.

On March 21, 2016, the Knesset adopted an amendment to the Law, which expands the circle of officials authorized to declare a person an “unlawful combatant” and order his temporary incarceration: such incarceration order may now be issued by an officer holding the rank of brigadier general, instead of only by the Chief of Staff; the incarcerated person’s plea against the order may now be heard by an officer holding the rank of captain instead of lieutenant colonel, as previously stipulated. Moreover, the military may hold a person as “unlawful combatant” without an order or judicial review for a period of seven days rather than four, as was before. These provisions apply under the Amendment once the government issues a declaration of war or military operation, which must be brought for approval by the Knesset’s Foreign Affairs and Defense Committee within 48 hours from its issuance; the government may extend an approved declaration (valid for three months) for additional periods of three months each time, so long as the war or military operation continues, or up to 30 days after its conclusion.

The Amendment which makes it easier for Israel to announce “illegal combatants”, is an expansion of the state’s blatant violation of international humanitarian law. (02) 627 1698   (02) 627 6317

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