The Israeli Unlawful Combatants Law Turns Twenty

Twenty years ago, in 2002, Israel enacted the Law on Incarceration of Unlawful Combatants (UCL or “the Law”). The UCL aimed to provide a basis in domestic legislation, in conformity with international law, for preventively detaining unlawful combatants, namely, those who partake in ongoing hostilities against the State or are members of organized armed groups (OAGs) carrying out such hostilities who are not entitled to prisoner of war (POW) status.

This post presents a short overview of the legislative process and implementation of the UCL. It is an abbreviated version of an article published in Volume 52 of the Israel Yearbook on Human Rights. For an in-depth analysis of the international law aspects of the UCL, see Saar and Wahlhaus.

Genesis of the UCL

The UCL’s beginning traces back to April 12, 2000, when the Israeli Supreme Court determined, in its seminal decision in A v. Minister of Defense (CFH 7048/97 a.k.a. “the Lebanese Detainees Case”), that the State had no authority to administratively detain members of  Hezbollah under the Emergency Authorities (Detention) Law of 1979 (ADL) for the sole purpose of advancing negotiations regarding the release of Israeli soldiers held in captivity.

Following this judgment, the government of Israel sought an alternative legal justification for the detention of Hezbollah combatants. Due to the restrictive interpretation of the ADL by the Courts, which limited detention to cases demonstrating sufficient certainty of serious harm to national or public security, it seemed preferrable not to amend the ADL but rather to enact a separate bill that would grant more flexibility in situations of armed conflict.

The initiative to pursue such a law came from the Military Advocate General (MAG) unit of the Israel Defence Forces (IDF). At the time, I served as the Deputy Head of the International Law Department of the MAG. I was directly involved in the preparation of the initial draft of the law, together with the MAG, General Finkelstein, and the renowned Professor Yoram Dinstein.

The underlying idea of the proposed bill was to draw an analogy between the internment of POWs and that of members of an OAG who are unlawful combatants. Since the law of armed conflict (LOAC) allows holding members of the armed forces of an enemy State as POWs until the cessation of active hostilities, it follows that the internment of members of OAGs, operating on behalf of a Non-State Actor (NSA) engaged in armed conflict with the State, should also be deemed legal.

The main justification of POW internment under LOAC is to prevent combatants from returning to the cycle of hostilities. The same logic should apply to the removal of enemy combatants of an NSA from the battlefield. This legal reasoning was later presented by the State in its detailed brief to the Israel Supreme Court in a case contesting the constitutionality of the UCL. An important precedent supporting this position was the 1942 Ex Parte Quirin case of the U.S. Supreme court. On this basis, the idea was to grant explicit authority in domestic legislation to detain such persons.

On June 14, 2000, the government published the draft bill. The legislative process made substantial changes to the bill. The bill passed into law on March 4, 2002, and the legislature amended it twice, in 2008 and in 2016.

I. The Provisions of the UCL

Section 1 of the UCL provides: “This law is intended to regulate the internment of unlawful combatants not entitled to prisoner of war status, in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law.”

The Law authorizes the Chief of Staff of the IDF (CoS) to issue an internment order for an “unlawful combatant.” Section 2 of the Law defines an “unlawful combatant” as follows:

A person who took part in hostilities against the State of Israel, whether directly or indirectly, or who is a member of a force carrying out hostilities against the State of Israel, who does not satisfy the conditions granting a prisoner of war status under international humanitarian law, as set out in Article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War.

Section 8 stipulates that a certificate of the Minister of Defense that a particular force is carrying out hostilities against the State of Israel shall serve as proof in any legal proceedings, unless proved otherwise.

The Law authorizes the CoS to issue an internment order if there is reasonable basis to believe that a person who is held by State authorities is an unlawful combatant and that the person’s release will harm State security. The Law only applies to internment in Israeli territory and does not regulate initial capture and detention outside Israel.

Section 7 establishes a presumption that

a person who is a member of a force carrying out hostilities against the State of Israel or who took part in hostilities of such a force, whether directly or indirectly, shall be regarded as someone whose release will harm state security as long as the hostilities of that force against the State of Israel have not ended, unless proved otherwise.

It is interesting to note that the IDF has never relied on this presumption and its constitutionality remains debated.

The Law grants the detainee an opportunity to raise claims against internment before an authorized officer prior to the issue of an order by the CoS. To enable this, a lower ranking officer may issue a provisional internment order for up to 96 hours until the issuance of the internment order.

The Law subjects the internment order to an initial judicial review within fourteen days of internment under the law, and a periodic judicial review every six months. During the judicial review, the courts are permitted to deviate from routine evidence laws and to rely on classified evidence. A judge of the District Court conducts both stages of the judicial review, and the decisions are subject to appeal to the Supreme Court. Detainees have the right to be represented by a lawyer.

The UCL explicitly proscribes that a detainee who is held under the Law can be criminally prosecuted, and that internment orders can be issued also against detainees who have been subject to criminal proceedings. Detainees must be held under appropriate detention conditions, set in regulations that resemble those issued under the ADL which apply to those held in administrative detention.

In 2008, the legislature added a section to the Law that authorizes the Government to declare the existence of widespread hostilities and to apply more flexible arrangements for issuing internment orders. To date, this section has not been implemented.

II. Judicial Scrutiny of the UCL

The Supreme Court approved the constitutionality of the UCL under Israeli domestic law, and affirmed the UCL’s conformity with existing rules of international law, in its landmark decision, Anonymous v. State of Israel, (CrimA 6659/06, 62(4) PD 329, (11.6.2008) (Isr.)) (the “Iyyad case”).

At the outset, the Court rejected the claim that the Law is intended to allow holding detainees as “bargaining chips.” The Court determined that its only purpose is to keep persons who belong to terrorist organizations or take part in hostilities against the State of Israel from returning to the cycle of hostilities.

The Court rejected the argument that the definition of “unlawful combatants” contradicts LOAC by creating an independent and separate category from the two recognized categories of combatants and civilians. The Court followed its targeted killing case, viewing “unlawful combatants” as a sub-category of civilians. Despite that, the Court refrained from determining whether the 1949 Fourth Geneva Convention (GC IV) applies to detainees under the UCL. Rather, it ruled that such a determination was unnecessary, as the Law meets the standards provided by the Convention. The Court still used GC IV as a yardstick throughout its decision, ultimately finding that the UCL complies with its standards, and, in several aspects, surpasses them.

The Court also rejected the claim that the law creates a third category of internment, which is neither criminal arrest nor administrative detention. The Court maintained that the scheme provided in the UCL is a mechanism of administrative detention consistent with the internment regime of Articles 27, 42, 43, and 78 of GC IV.

The Court stressed that internment under the UCL requires proof of an individual threat posed to the security of the State. The Court explained that the Law contains two alternatives for being considered an unlawful combatant: (i) participating, either directly or indirectly, in hostile acts against the State of Israel; or (ii) being a member of a force perpetrating hostile acts against the State.

With respect to the first alternative, it is not sufficient that a person made a remote, negligible, or marginal contribution to the hostilities against the State. Instead, evidence must establish that he or she contributed to the perpetration of hostile acts against the State, either directly or indirectly, in a manner that is likely to produce “personal dangerousness.” With respect to the second alternative, it is insufficient to simply show a tenuous connection with a terrorist organization. Albeit it is not necessary for that person to be personally involved in hostilities, and the contribution to the organization can be expressed in having a connection to the cycle of hostilities in its broad sense. The Court also emphasized that the internment must be based on clear, convincing, and updated evidence.

In examining the constitutionality of the Law, the Court determined that preventing members of terrorist organizations from returning to the cycle of hostilities against the State of Israel is a proper legislative purpose that can justify limitations on the right to liberty. The Court also concluded that the UCL meets the constitutional requirement of proportionality, as there are no alternative measures that involve a lesser violation of the constitutional right.

While the Court was concerned about the potential unlimited duration of internment under the UCL, it confirmed that this meets the requirements of proportionality, referring to the rationale behind detaining POWs until the end of hostilities. However, the Court emphasized that internment orders cannot be sustained indefinitely and that through judicial review the length of internment may be restricted and shortened with due regard to the security threat posed by the detainee.

The judgment in the Iyyad Case set the benchmark for subsequent judicial reviews conducted under the UCL.

III. UCL Internment Orders

According to available data, in the twenty years since its enactment, the government has issued only around sixty UCL internment orders. Most internments have lasted less than a year, with only fifteen detainees being held over one year, eight of whom for over two years. The longest known duration of internment under the law was four years.

Details about the cases of internment under the law can be derived from the judgments given by the Supreme Court in cases of judicial review over internment orders. However, the Court does not publish all judgments, nor does it reveal all names of detainees. Furthermore, the Government does not officially publish the dates of release of detainees.

The Government issued the first four internment orders under the UCL in 2002 against Hezbollah operatives (Dirani, Obeid, Shuman and Ayyub). The Government released the four in January 2004 in a prisoner swap. The District Court, unpersuaded that release would endanger State security, revoked another internment order issued in 2003 against a Lebanese citizen (Abu-Zeid) at the end of his prison sentence.

According to data published by NGOs, the Government issued eleven internment orders in 2006, during the Second Lebanon War between Israel and Hezbollah. Five of the detainees were released within few days, apparently as no link to Hezbollah could be demonstrated. One other detainee was released in October 2007. The other five – three of which were transferred to the criminal track – were released in July 2008 as part of a prisoner swap in which the remains of two soldiers were returned to Israel.

The disengagement of Israel from the Gaza Strip in September 2005 led to the annulment of the legislation issued by the Israeli military administration in the Gaza Region, including the Order on Administrative Detentions. Subsequently, the UCL was used as a basis to extend the internment of the brothers Raid and Hassan Iyyad, who had been held under administrative detention (the one since 2002 and the other since 2003) for attempting to establish infrastructure supporting the Hezbollah in the Gaza Strip. In the Iyyad Case, the Supreme Court upheld their internment orders under the UCL. Israel held the two for a total of nearly seven years.

Use of the UCL against residents of the Gaza Strip intensified after Hamas took control of Gaza in 2007 and began rounds of attacks against Israel, mainly by firing rockets towards Israeli localities. In December 2007, the Government issued an internment order against Abu-Fariah for being involved in smuggling weaponry into the Gaza Strip. However, the Supreme Court held that the order should be canceled because no actual affiliation to a terror organization was shown and as smuggling activities could not be considered “taking part in hostilities.”

In January 2008, the Government issued an internment order against Sa’id for being involved in activities of the “resistance committees” and for gathering information to conduct attacks against IDF soldiers. District Courts and appeals to the Supreme Court approved the order in several periodic judicial reviews, although the courts stressed that continued internment must be examined with due regard to the time that has elapsed.

During Operation Cast Lead which took place in the Gaza Strip between December 2008 and January 2009, the Government issued internment orders under the UCL against a few dozen persons. Most of them were released within a short period of time.

Four cases of internment orders issued during Cast Lead reached the Supreme Court. In two of these cases, the Court approved the continued internment of members of terror organizations who were personally involved in specific combat activities against Israel (Atamna and Hamed). In another case (Salah) the Court was more reluctant to approve the internment and recommended to pursue criminal proceedings. The Court concluded that the State had merely demonstrated the detainee’s willingness to engage in hostile acts. In the fourth case (Sofi) the Court approved the internment of a senior member of the “Dawa” apparatus of Hamas—its “civilian” wing—ruling that no clear dichotomy can be drawn between the civilian-political and the military wings of Hamas. The Dawa apparatus was, for example, directly involved in recruiting fighters to the military wing of Hamas.

In August 2009, an internment order was issued against A-Sarsak based on his strong link with the Islamic Jihad terror organization and central position in the arms apparatus of the organization. The Supreme Court approved his continued internment. Ultimately, he was released in July 2012 after a three-month long hunger strike.

In 2009-10, the Government issued several internment orders under the UCL to prisoners who were about to complete their term of imprisonment following criminal proceedings. In three cases, the Court approved the orders against members of terrorist organizations based on intelligence indicating continued involvement in terror activity while in prison, such as planning terror attacks, or financing and obtaining weapons (Abu-Oun, Al-Amoudi and an unnamed detainee). In one case, (Zari’i), the detainee infiltrated from Egypt and intelligence showed that he was actively involved in numerous terror attacks. Another case (Isawy) dealt with an expert in electronics who had concluded his sentence of five and a half years. The internment was based on intelligence indicating that he would contribute his expertise to hostile activity of Hamas. He was released a year later during the periodic review, with the District Judge emphasizing the long duration of his confinement and his expressed intention not to return to hostilities.

In July through August 2014, Operation Protective Edge took place between Israel and Hamas as well as other terrorist organizations in the Gaza Strip. Interestingly, most of those detained during this operation were subjected to criminal proceedings and only one detainee (Najar) continued to be held under an internment order issued under the UCL. He was the head of a department in the civilian police force of Hamas and was a senior explosives expert. The Court held that releasing the detainee would enable him to aid Hamas in the field of explosives and armaments due to his connections to the military operatives of the organization.

The Government issued the next known internment order in December 2015. The Court approved it in a concise judgment holding that the unnamed detainee was a member of the Islamic Jihad involved in military activity.

The Government issued the last known internment order, to date, in March 2017, against Abu-Taha over his involvement in smuggling of weapons and considerable sums of money for the Islamic Jihad. The Court approved the order despite his not being a member of any specific organization, stressing that criminal proceedings could not be pursued.

IV. Evaluating Implementation of the UCL

Implementation of the UCL to date leads to several conclusions. First, the courts considered in all cases the individual dangerousness of the detainee. Mere membership in a force involved in hostilities against Israel did not suffice. This shows that the UCL did not fulfill the idea it began with, of creating a status of “quasi–POWs” for those fighting on behalf of OAGs involved in armed conflicts with Israel.

Second, in all cases the courts examined concrete evidence, mostly confidential, concerning the danger posed by the detainee. The presumption set in section 7 of the Law was never used.

Third, the idea of holding persons until the end of hostilities has apparently been abandoned. Accordingly, even though the conflict between Israel and Hamas (and other terrorist organizations in the Gaza Strip) is still ongoing with no clear end in sight, no detainees are known to be currently held under the UCL.

Fourth, the courts regard the duration of detention as a central parameter that must be considered during periodic judicial reviews. Concerning detainees who were issued an internment order after completing a criminal sentence, the courts also considered the previous periods of incarceration.

Fifth, the courts are clearly reluctant to affirm continued internment imposed in an administrative procedure based upon classified evidence, thus limiting the possibility of the detainee to counter the allegations. Accordingly, in several cases the State was requested to examine initiating criminal proceedings, even though the two tracks are based on different rationales, as recognized in the Iyyad Case.

Finally, the limited use of the UCL, including during military operations of high-level intensity, such as the Second Lebanon War of 2006 and Operation Protective Edge of 2014, demonstrates that the UCL is not viewed as a crucial tool in the current military campaigns faced by Israel. This probably stems from the fact that these operations did not involve large numbers of internments. Whether this trend will also characterize future military campaigns is yet to be seen.

Nonetheless, the Law did create a more flexible framework than that provided by the ADL, incorporating into Israeli legislation concepts derived from LOAC and taking the unique circumstances of armed conflict into account. The necessity of the UCL is less apparent when it is sporadically implemented against detainees posing a clear and significant danger to the security of the State who can be held under the ADL. However, if Israel finds itself in a long and intense conflict, in which large numbers of persons are detained with different levels of involvement in the fighting, then the ADL, with its strict demands, might not suffice. In such a case, the UCL provides a legal framework that is more compatible with an armed conflict reality. Due to the volatile security reality that Israel has been facing since its inception, such a scenario is not implausible.

***

Adv. Pnina Sharvit Baruch LL.M (Tel-Aviv) is a Senior Research Fellow and the head of the Program on Law and National Security at the Institute for National Security Studies. Former Head of the International Law Department in the IDF.

 

 

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