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C2. B'tselem and Hamoked, the Internment of Unlawful Combatants

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C2. B'tselem and Hamoked, the Internment of Unlawful Combatants 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.
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