210 JOURNAL OF PALESTINE STUDIES

C2. B’TSELEM AND HAMOKED,THE INTERNMENT OF UNLAWFUL COMBATANTS, JERUSALEM,OCTOBER 2009 (EXCERPTS). This 80-page report by B’Tselem and HaMoked, two Israeli human rights DOCUMENTS AND SOURCE MATERIAL 211

NGOs, provides a detailed overview, 2. is a member of a force carrying out accompanied by illustrative cases, of hostilities against the State of Israel. administrative detention of Palestinians in Israel under three different laws: the An officer holding the rank of at least Order Regarding Administrative Deten- captain, who is so delegated by the chief of tion (which applies in the West Bank); staff, may order the internment of a person the Emergency Powers (Detention) Law for 96 hours when he has “a reasonable (which applies in Israel); and the Intern- basis for believing that the person brought ment of Unlawful Combatants Law. While before him is an unlawful combatant.” the first two laws have been used for Following that, the chief of staff, or an years, the third law, the focus of the fol- officer holding the rank of major general lowing excerpts, came into force in 2002 delegated by him, may issue a permanent and has been used primarily to detain internment order if he has “a reasonable Gaza residents. The full report, titled basis for believing” both: “Without Trial: Administrative Deten- tion of Palestinians by Israel and the 1. that the person is an “unlawful com- Internment of Unlawful Combatants,” batant” as defined by the law; and can be found online at www.btselem.org. 2. that his release will harm state Footnotes have been omitted for space security. considerations. Contrary to detention under the Ad- . . . ministrative Detention Order, internment In 2000, Israel’s Supreme Court ruled under the Law is not limited in time. The that the state was not allowed to continue internment ends only when, in the opinion holding Lebanese nationals in administra- of the chief of staff, one of the conditions tive detention as “bargaining chips” for the for the internment ceases to exist or other return of Israeli prisoners of war and bod- reasons justify the person’s release. ies, as they do not pose a threat. Among the detainees held were Mustafa Dirani and Judicial Review and Presumptions Shaykh ‘Abd al-Karim Obeid. To enable the Specified in the Law state to continue holding them, the Knes- Under the Law, an internee shall be set enacted, in 2002, the Internment of Un- brought before a District Court judge no lawful Combatants Law (hereafter in this later than 14 days from the date on which chapter: the Law). the internment order is issued. If the judge This statute is now used to detain Pales- finds that the conditions for internment tinian residents of the Gaza Strip without specified in the Law are not satisfied, he trial. In the past, Israel used the statute to shall cancel the internment order. If the hold additional Lebanese nationals. Israel order is approved, the internee must be has made limited use of the statute, but it brought before a judge once every six enables the state to carry out large-scale months, and if the court finds that his re- internments, for unlimited periods and lease will not harm state security, the without substantial judicial review. The judge shall cancel the internment order. protections provided to internees by the The judge’s decision may be appealed to statute are even less than the few provided the Supreme Court. As with administra- to detainees under the Administrative De- tive detention under the Administrative tention Order that applies in the West Detention Order, the judge is not bound Bank. by the rules of evidence, and the hearings are held in camera, unless the judge directs Provisions of the Law otherwise. Internment Power The Law specifies two presumptions The Law defines an unlawful combatant [that] add to its force. The first is that the as a person who is not entitled to the sta- release of a person defined as an “unlawful tus of prisoner of war under international combatant” will harm state security as long humanitarian law, who meets at least one as the contrary has not been proved. The of the two following criteria: wording of the presumption is as follows:

1. took part in hostilities against the With regard to this law, a person who is a member State of Israel, directly or indirectly; of a force that carries out hostilities against the 212 JOURNAL OF PALESTINE STUDIES

State of Israel or who took part in the hostilities “disengagement plan” and declared the of such a force, whether directly or indirectly, shall end of the military government in the Gaza be regarded as someone whose release will harm Strip. As the Administrative Detention Or- state security as long as the hostilities of that force der ceased to apply in the Gaza Strip after against the State of Israel have not ended, as long as the contrary has not been proved. the declaration, the chief of staff issued in- ternment orders under the Law that same The second presumption relates to the day against two residents of the Gaza Strip existence of hostilities. It states: who were being held in administrative detention. The determination of the minister of defense, in Since then, the Law has been used pri- a certificate signed by him, that a certain force is marily to detain residents of the Gaza Strip carrying out hostilities against the State of Israel or without trial, among them persons who that the hostilities of that force against the State of were detained during army actions in the Israel have come to an end or have not yet come Gaza Strip and prisoners who were de- to an end, shall serve as evidence in any legal pro- clared “unlawful combatants” after they ceeding, unless the contrary is proved. had completed their prison sentence. In 2006, during the second Lebanon Change in the Wording of the Law in war, Israel interned ten Lebanese nation- 2008 als under the Law, two of whom were held In 2008, the Knesset amended the until 2008. The Law has not been used wording of the Law to expand the in- to intern residents of the West Bank, al- ternment powers it provides. Under the though it allows for this use. amendment, when the government de- To the best of HaMoked’s and clares the “existence of wide-scale hostili- B’Tselem’s knowledge, Israel has used the ties,” the internee may be held for seven Law to intern 54 persons to date: days prior to issuing a permanent intern- ment order, instead of 96 hours, and the s 15 were Lebanese nationals: Dirani, power to issue the order switches from the Obeid, and two other persons were chief of staff to an officer holding the rank held from 2002 to 2004 and were of brigadier general. In addition, the dec- released in the prisoners and bodies laration enables transfer of judicial review exchange. The 11 others were from the District Court to military courts interned during the second Lebanon that will be established especially for this war in 2006. Five of them were purpose. released a few days after their intern- The amendment’s provisions have not ment, one was released in October yet been applied in practice. On 4 Janu- 2007, and two were released in July ary 2009, during Operation Cast Lead in 2008. Three were prosecuted on crim- the Gaza Strip, the minister of defense de- inal charges and were also released in clared the Sde Teiman military base an in- July 2008. ternment facility for the purposes of the s 39 were residents of the Gaza Strip: Law. However, the government did not 34 of these were interned in 2009 declare the “existence of wide-scale hos- during, or subsequent to, Operation tilities” and did not exercise the powers Cast Lead, and most have been given to it under the Law following such a released. The other five were interned declaration. at various times between 2005 and 2008. In August 2009, Israel released four internees. On 30 September, Use of the Law Israel was holding nine internees In 2004, after an exchange deal with under the Law. Hizballah in which Israel released the Lebanese nationals it had been holding in exchange for hostages and bodies, no in- Supreme Court Judgments on the Law ternees under the Law remained in Israeli In 2008, the Supreme Court held that hands. In this context, the Supreme Court the Law was constitutional. The president denied HaMoked’s petition, filed in 2003, of the Supreme Court, Justice Dorit Bein- to nullify the Law, holding that the hearing isch, compared internment under the Law was theoretical. On 12 September 2005, to administrative detention, stating that only four days after the Court’s decision, “[t]he mechanism provided in the law is a Israel completed implementation of the mechanism of administrative detention in DOCUMENTS AND SOURCE MATERIAL 213 every respect.” Thus, all the rules apply- draconian incarceration track that grants ing to administrative detention under the extremely minimal rights and protections Administrative Detention Order apply to to the detainee. On one hand, the state can internment under the Law. Essentially, the prosecute such a person for taking part internment must be based on a danger that in hostilities, while, on the other hand, it the person himself poses and not only on can hold him in prison without trial as if his being a member of one organization or he were a prisoner of war and release him another. In addition, like every administra- only at the end of the hostilities, regardless tive detention, the internment must be for of the personal danger he may or may not a preventive purpose and not as punish- pose if released. ment for a past act, and it must be based The Law was approved despite the fact on clear, convincing, quality, updated, and that the Emergency Powers (Detentions) sufficient administrative evidence. Law, enacted already in 1979, enables ad- In this judgment, as in other appeals ministrative detentions of foreign nationals decided by the Supreme Court on the Law, as well. the justices refused to address the consti- In the years since the legislative pro- tutionality of the Law’s presumptions. In cess began, the Law has undergone several the appeals, the state generally argued that changes, ostensibly in an attempt to con- it did not rely on these presumptions, and form its provisions to those of international that in each of the cases, evidence was humanitarian law. . . . However, study of presented proving that the internees them- the Law clearly shows that it directly con- selves posed a danger. The justices relied tradicts international humanitarian law. on this claim to hold that the question was When the Law came before the Su- theoretical. If the state relies on these pre- preme Court, the justices held that the sumptions in the future, the constitutional status of “unlawful combatant” does not question may be raised before the Court. exist in international humanitarian law. In Although the Law enshrines the power fact, they held, these are civilians, who are to intern a person, and its rules on intern- entitled to the protections of the Fourth ment are identical to those of any other Geneva Convention, and the Law merely administrative detention, Justice Beinisch established an additional form of adminis- held that it is intended for a different pur- trative detention. In accordance with the pose than the Emergency Powers (Deten- provisions of the Convention, a person tions) Law applying in Israel. . . . must pose a “personal threat of danger” to It appears that, in most of the cases, Is- be detained under the Law. Despite this rael has preferred to use the Law because determination, the justices did not discuss it gives the state greater freedom of action the constitutionality of the presumptions and provides fewer protections to the in- specified in the Law, holding that such a dividual: The presumptions specified in discussion was not necessary regarding the the Law switch the burden of proof to the cases at hand. internee; judicial review is less frequent; However, the two presumptions bla- the internment does not depend on the tantly contradict the provisions of the existence of a state of emergency; and the Fourth Geneva Convention and enable the internment is carried out pursuant to an internment of a person while disregarding order issued by the chief of staff or by an the requirement that he pose a personal officer holding the rank of major general. danger. The presumption of individual Finally, contrary to the Emergency Powers threat posed by the detainee and the pre- (Detentions) Law, an order signed by the sumption of the continuation of hostilities minister of defense is not required. release the prosecution from the need to . . . produce evidence to justify continuation of the internment, and enable internment for Criticism an unlimited period of time. The Internment of Unlawful Combat- Given the presumptions, after the Dis- ants Law was originally intended to legal- trict Court decides that a detainee is an ize the holding of foreigners as “bargaining “unlawful combatant,” the judicial system chips,” which the Supreme Court pro- is left with nothing to do and periodic judi- hibited. The purpose of the Law was to cial review is effectively meaningless. The create a combination of administrative point of departure is that the detainee’s detention and prisoner of war status, a release will harm state security, as long 214 JOURNAL OF PALESTINE STUDIES as the defense minister maintains that the hostilities are continuing. The Law does enable the detainee to prove otherwise, but it is not clear how he can do so. The Law places the burden of proof on the shoulders of the detainee in matters that he can clearly never refute, given that the vast majority of the material against him is privileged and he is not allowed to exam- ine the evidence against him. Even when the presumptions are not relied upon, the personal danger that the state must prove in order to detain a per- son under the Law is very broadly defined, disregarding the fact that international hu- manitarian law permits administrative de- tention only in exceptional cases, when there is no other way to avert the danger. Under Section 2 of the Law, being a mem- ber of a “force carrying out hostilities against the State of Israel” is sufficient for classifying a person as an “unlawful com- batant.” The Law does not interpret the nature of membership that is required and merely states that membership can be “di- rect or indirect.” The Supreme Court even broadened the definition, stating:

[I]t is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that are sufficient to include him in the cycle of hostilities in its broad sense, in such a way that his detention will be justified under the law.

The 2008 amendment makes matters worse, as it enables mass, sweeping, and easy use of the Law in time of war without meaningful judicial review. . . .