Gaza Amendments to Israel’s “Unlawful Combatants Law” are Inconsistent with International Law

[Ben Saul is the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism]

The Israeli human rights NGOs Public Committee Against Torture in Israel and Hamoked recently reported that around 6,800 Palestinians are detained by Israel outside the regular criminal justice process. Approximately 3,436 are held as “unlawful combatants” captured in Gaza – although 500 have not had their status formally determined – and 3,376 mainly from the West Bank are held in administrative detention. Thousands more have been released.

The long-standing concerns about the different Israeli security detention regimes are well known, including arbitrary detention, inadequate due process, torture and ill-treatment, and the vulnerabilities of child detainees. These concerns intensified after Israel responded to the 7 October 2023 attack from Gaza, including a dramatic increase in deaths in custody and the notorious conditions at the military’s Sde Teiman facility.

The Israeli parliament temporarily amended the Incarceration of Unlawful Combatants Law 5762-2002 (the Law) in December 2023 for four months, and renewed the amendments in April and July 2024. In a communication to the Government of Israel last year, as United Nations Special Rapporteur on human rights and counter-terrorism I expressed concern that the amendments (and elements of the Law generally) are inconsistent with Israel’s international humanitarian law (IHL) obligations, which the Law is intended to give effect to (s 1 and A and B v Israel (2008), Israeli Supreme Court, para. 41). These concerns are sketched in this post and the detailed arguments can be found in the communication. 

The Law allows administrative detention without charge of individuals where an officer has “reasonable grounds to believe that a person brought before him is an unlawful combatant” (section 3(a)), a status defined in section 2). The initial order can be confirmed by an incarceration order by the Chief of General Staff on the same ground with the further requirement that the person’s release “would endanger the security of the state”.

The 2023-24 amendments altered applicable procedural safeguards. An incarceration order must now be issued within 45 days, instead of 96 hours (s 3(c)). A detainee must be brought before a district court within 75 days, not 14 days (s 5). Judicial review may now be conducted via video conference, even without legal counsel present. Access to a legal representative may be denied for up to 75 days on the order of an official, increased from 10 days (s 6(a1)), and up to 180 days on the order of a district court, later reduced to 90 days (s 6(a2)). 

Israel claims that the amendments are justified due to the extraordinary volume of people imprisoned as part of the current conflict and the continuation of that conflict. However, in 2008 the Israeli Supreme Court indicated the original Law was precisely designed to address hostilities “in the course of which a relatively large number of enemy combatants may fall into the hands of the military forces”, and the Law was found to be proportionate on that basis. By definition administrative detention is already a regime tailored to exceptional circumstances.

The number of detainees in the present conflict is entirely manageable in that light. Freedom from arbitrary detention is too weighty to be sacrificed for the mere administrative convenience of the state. The burden is on Israel to increase the resources available to ensure that basic rights are protected, for example, by increasing the number of decision-makers qualified to issue incarceration orders in a timely fashion and allocating sufficient judges to review orders.

Grounds of Detention and Incarceration Orders

Israeli law accepts that there exists an international armed conflict with Palestinian armed groups and has applied the Fourth Geneva Convention 1949 (GCIV) for the purpose of detaining unlawful combatants. Administrative detention of civilians under GCIV is permitted only in exceptional circumstances: in occupied territories, including Gaza, it must be “imperative for security” (Article 78), while in a state’s own territory, it is allowed only when “absolutely necessary” for security (Article 42). A person who takes a direct or indirect part in hostilities, as defined under IHL (see ICRC Guidance on Direct Participation in Hostilities 2009), could potentially fall within these security detention powers, depending on the nature of their individual activities and the continuing threat that they personally pose. 

Israeli jurisprudence has also considered the detention of unlawful combatants in the light of the right to liberty under Israel’s Basic Law and article 9 of the International Covenant on Civil and Political Rights. Under international law, Israel’s human rights obligations apply during armed conflict in the occupied Palestinian territories.

In the first place, the Law fails to adequately regulate the grounds or duration of detention between the apprehension of a person by Israeli forces and the issuing of a temporary detention order once the person is “brought before” an officer. Detention is only authorised under IHL where it is imperative or absolutely necessary for security reasons, yet the Law fails to specify on what grounds Israeli forces may detain for the purpose of bringing the person before an officer. Since the Law is relied upon as the basis of detention under Israeli law, including to protect the Basic Law right to liberty, detention must be duly authorized by domestic law and cannot be somehow implicitly based on uncodified IHL authority alone. 

Secondly, the grounds for issuing a temporary detention order are not consistent with IHL. Section 2 of the Law defines an “unlawful combatant” as either (a) having taken a direct or indirect part in hostilities or (b) being affiliated with a force conducting hostile activities against Israel. Yet, the mere fact of past participation in hostilities or affiliation with a hostile force does not illustrate that a person continues to pose a threat to Israel such that their detention is absolutely necessary: ICRC Commentary 1958 to GCIV, article 43. Rather, that requires a further assessment of the likelihood of future conduct, albeit informed by past behaviour – just as the Law requires an assessment of the danger to the security of the state before the subsequent issue an incarceration order by the Chief of General Staff. 

Thirdly, the drastic expansion in time from 96 hours to 45 days for the issuance of an incarceration order following the temporary order is not authorised under IHL and is arbitrary under international law. Since temporary detention orders do not meet the bar for detention under IHL, it is only at the later stage of issuing an incarceration order that the Law may ensure that detention complies with IHL’s individual risk assessment requirement. 

Further, in the absence of a proper determination of future security risk according to IHL for 45 days, there is a high likelihood that the person will not have been sufficiently informed of the substance of the adverse security case against them. IHL requires a person to be promptly informed of the reasons for detention (Additional Protocol I article 75(3), reflecting customary IHL), meaning (1) within ten days (ICRC Commentary to Additional Protocol I, article 75(3); see also US Department of Defense, Law of War Manual, para. 8.14.1) and (2) with sufficient specificity to inform the person of the substance of the allegations, so as to enable effective review before a court or other competent authority. Indeed the Law does not require the person to be informed of the allegations against them, but only gives them an opportunity to be heard and to receive reasons only after the incarceration order is issued (s 3(b)(2)).

Fourthly, the Law contains a problematic “presumption” that a member of a force perpetrating hostile acts against Israel, or a person who participated in hostile acts of such force, “shall be deemed to be a person whose release would harm state security as long as the hostile acts of such force against the State of Israel have not yet ceased, unless proved otherwise” (s 7). The Israeli Supreme Court rightly questioned whether this presumption could undermine the requirement imposed by the Court and IHL that the state must establish that the person is an individual security threat (A and B v Israel, para. 24). The Court nonetheless accepted that, at that time, Israel de facto refrained from relying on the presumption. It is not clear that Israel abides by that undertaking in practice given the rapid increase in the number of detainees. In any event, the very presence of the “presumption” in the Law is inconsistent with the requirements of legality, certainty and precision necessary for laws governing detention, sows real doubts about the application of the Law, and should be repealed. 

Fifthly, the term “unlawful combatant” has no meaning under international law: see A/HRC/6/17/Add.4. Although it is plausible that a “person who has directly or indirectly taken part in hostilities” could fall within IHL’s security detention powers, this turns on the nature of their individual activities and the continuing threat they pose. The absence of definition of “indirect” gives rise to concerns about inconsistency with the principle of legality and the risk of abuse: A/HRC/6/17/Add.4, para. 26. The Israeli Supreme Court has indicated that “unlawful combatant” should be interpreted consistently with IHL’s assessment of the individual conduct of persons classified as “civilians” under IHL (A and B v Israel, paras. 12-14 and 18-21). Other Israeli cases have considered the meaning of direct/indirect participation in hostilities, although there are questions whether these judicial pronouncements are followed in practice by Israeli forces, including in the Gaza war, and whether such interpretation accords with the ICRC’s best practice approach to direct participation in hostilities. It is preferable that a law authorising detention should more clearly and concretely specify the range of activities which will be regarded as falling within the concepts of direct or indirect participation in hostilities.

To conclude, where detention under the Law is not properly authorized under IHL, it could violate the prohibition on: (a) unlawful confinement of civilians – a grave breach of IHL (GCIV article 147) constituting a war crime; (b) arbitrary detention under article 9 of the ICCPR; (c) enforced disappearance; and (d) the crime against humanity of imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, where committed as part of a widespread or systematic attack on a civilian population.

Protracted Delay in Legal Representation

The possibility to delay access to a legal representative for 75 days on the order of an official and 90 days by court order (earlier 180 days) is not consistent with IHL. There is “extensive practice to the effect that persons deprived of their liberty have access to a lawyer” (Commentary to ICRC customary rule 99: Deprivation of Liberty), as an essential component of the right to liberty. Human rights law provides further relevant guidance: prompt and regular access to legal counsel is necessary to facilitate effective review of any form of detention.

Protracted Delay of Judicial Review

The possibility to delay judicial review of detention for up to 75 days after incarceration is not consistent with IHL, which confers a right on a detainee to have detention “reconsidered as soon as possible by an appropriate court or administrative board” (GCIV article 43) or a right of appeal “with the least possible delay” (GCIV article 78). No plausible reading of “as soon as possible” or “with the least possible delay” would permit a 2.5 month delay, which could permit any arbitrary detention or torture in custody to continue unchecked. When previously considering the Law in force in 2008, the Israeli Supreme Court observed that the then maximum period of 14 days before judicial review satisfied the proportionality requirement of the right to liberty under Israel’s Basic Law but indicated that periods of less than 14 days would likely be more proportionate in individual cases (A and B v Israel, para. 41). The Court indicated that the Law was already adapted to the exigencies of large numbers of detainees in armed conflict, and there was no suggestion that longer than 14 days would be tolerable. 

Personal Attendance and Legal Representation at Judicial Review

The possibility of judicial review of detention by video conference, in the absence of a lawyer, does not meet due process standards. A detainee and their legal representative should be able to attend the proceedings in person: ICRC, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence 2005. Given the importance of the right to liberty, personal attendance is necessary to ensure that the detainee has a sufficient opportunity to interact with the judge and engage properly with their lawyer, interpreters, evidence, state representatives, and witnesses. Appearance by video can undermine the integrity of the proceeding and prejudice the detainee’s position.

Secret Evidence

Section 5(e) of the Law permits the court to admit evidence in the absence of the detainee or their legal representative, and to not disclose evidence if the court is convinced that doing so could harm state security or public security. This provision is inconsistent with IHL. As mentioned, customary IHL, reflected in article 75(3) of Additional Protocol I of 1977, requires that a detainee “be informed promptly of the reasons why these measures have been taken”. Such right, in turn, necessarily presupposes that there must be some minimum level of disclosure to the detainee personally that is essential to give effect to the purpose of the right, namely to ensure that the person is placed in a position to effectively challenge the purported basis of detention and the court can ensure equality of arms and a fair hearing. The person instead may be reduced to facing a bare allegation, and nothing more, without any meaningful balancing of the competing interests of liberty and security.

Access by Family Members and the ICRC 

The Law fails to provide for notification, correspondence and visits with detainees’ family members, as required by IHL: GCIV articles 106, 107 and 116. It also does not provide for access to detainees by the ICRC, as required by IHL: GCIV articles 76(6) and 143; ICRC Customary IHL rule 124. 

Conclusion

In summary, the amendments to the Law purport to justify exceptional measures in response to the pressures of the Gaza conflict when the Law itself is already designed to deal with all possible exigencies of armed conflict, including large numbers of security detainees in every conceivable conflict. 

Quite apart from the violations of international law involved, a few thousand detainees in the present conflict is hardly of a scale to swamp the capacity of the Israeli authorities. Recall that the detention provisions of GCIV were designed with recently concluded high-intensity inter-state armed conflicts front of mind – recognizing that security detention could be necessary on a vast scale in large-occupied territories, but must still guarantee fundamental rights. 

Rather, Israel appears to have sacrificed detainee rights for greater administrative convenience and to reduce safeguards over arbitrary detention and the accountability of its military forces for violations of international law.