Israeli Supreme Court Upholds Unlawful Combatants Law

by Kevin Jon Heller

As our Boumediene instant symposium gets underway, I thought it might be interesting to note that the Israeli Supreme Court has just upheld the Incarceration of Unlawful Combatants Law, which permits the indefinite detention of a person who does not qualify for POW status and “who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel.” From Ha’aretz:

The Supreme Court yesterday upheld the constitutionality of the law allowing for the detention of “unlawful combatants,” which Israel uses to hold Hezbollah fighters.

Supreme Court President Dorit Beinisch and Justices Edmond Levy and Ayala Procaccia rejected an appeal by two Gazan Palestinians who were detained after their involvement in terror activity on behalf of Hezbollah was proved.

The Unlawful Combatants Law authorizes the state to detain foreign nationals who belong to terror organizations or have participated directly or indirectly in hostile actions against the State of Israel.

Its goal is to prevent their continued activities.

Beinisch wrote in the verdict that although the law involves substantial harm and the suppression of personal freedom through administrative detention, the harm is proportional.

She noted that it was passed in a “harsh security reality” that justifies the violation of to personal freedom.

“The law’s harm to the constitutional right to personal freedom, although substantial, is no greater than necessary,” Beinisch wrote.

“Therefore, we have concluded that the law meets the criteria of the limitations ruling and there is no constitutional grounds to intervene in it.”

The Unlawful Combatants Law requires a District Court to determine every six months whether a prisoner’s release “will not harm State security” or whether “there are special grounds justifying his release”; the court’s decision can then be appealed to a single judge of the Supreme Court for review. Scholars question, however, whether the Law’s review procedures adequately protect prisoners’ rights. Here is what Ron Dudai of SOAS had to say two years ago, when the Israeli Supreme Court first upheld the detention of “unlawful combatants”:

Yet how powerful can this judicial review be? Not only does the Illegal Combatants law create a new category not recognized in international law, it reverses the burden of proof. Once an order is signed by the Chief of Staff, the burden of proof is on the defendant: he has to prove to the court that he is not an enemy combatant. Moreover, he is expected do this when the charge against him is based solely on classified evidence, which he is barred from examining and is therefore unable to challenge. One of the defendants told the court he was arrested in his house, for no reason, and added that if he were exposed to the evidence against him he would be able to respond. But that, of course, did not happen. After the defense lawyers argued their case, they and their clients had to exit the courtroom, leaving the security services’ representatives to reveal their secret evidence to the judge.

Food for comparative thought.

http://opiniojuris.org/2008/06/12/israeli-supreme-court-upholds-unlawful-combatants-law/

2 Responses

  1. Different legal traditions. Different threats. And even with that there is a court hearing – rather than an ersatz administrative process alone.

    Also, the questions that need to be asked are 1) what was the nature of the terrorist activity and 2) on what basis was their participation in that terrorist activity proved 3) in accordance with what judicial forms.

    One issue also would be that the review is every six months.

    Also, there is an upper limit on the 6 month renewals that must accord with natural justice. I do not know what it is but, I suspect it relates to the person no longer being a threat, incapacity etc.

    These questions appear to be unanswered from the article, but would be of importance for someone looking to make a comparative analysis.

    I hear in this a subtle effort to point us towards a “national security court” discussion. Bad idea.

    Best,

    Ben

  2. Law of war scholars recognize that there are two general categories of persons subject to detention as security threats during wartime. The first are those qualifying as POWs, governed in most conflicts by the Third Geneva Convention although customary international law provides most of the same protections in any conflicts that might fall outside the scope of the Common Article 2 definition.

    The second category is civilians, which includes fighters failing to qualify for POW status. While Israel may have adopted the “unlawful combatant” rubric, the key point is that the initial determination and six-month review provided for in the Unlawful Combatant Law seem to be in full compliance with Geneva IV’s requirements whereas the GTMO CSRT/ARB process are not.

    Note, too, that this makes liars out of the Administration (and anyone else) who claim the review process accorded the GTMO detainees exceed the due process accorded fighters in any other conflict.

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