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A recent and worrying judgement of the Israeli High Court, headed by Dorit Beinish, upholds the legality of the legislative framework governing the imprisonment of "unlawful combatants" from the Gaza Strip.

A recent judgment of the Israeli High Court of Justice (HCJ) turned more than a few heads when it upheld, in one of the most difficult and hollow decisions in recent years, the legality of the legislative framework governing the imprisonment of "unlawful combatants" from the Gaza Strip. This legislation, drafted in response to the 2006 war in Lebanon, is intended to govern the arrests of "unlawful combatants" in conflict situations.[i] This judgment was rendered in the case of HCJ 3261/08 Anonymous v. The State of Israel[ii] following a petition lodged by Adv. Abu Shchada on behalf of the Israeli human rights organization Hamoked: Center for the Defence of the Individual. 

Whilst examining the constitutionality of the law, the Court's judgment also checks the law's compliance with basic structures of International Humanitarian Law (IHL). It then very abruptly refuses to admit that the detention of non-nationals in the context of a conflict can occur only under the laws of war, and that the law therefore must explicitly comply with relevant humanitarian and human rights guarantees in order to be legal. The continuous deprivation of detainees' basic due process guarantees and the refusal to release detainees who are held as "bargaining chips" for the purpose of blackmail and prisoner exchange, was sidestepped altogether, and mention thereof limited to laconic comments of virtually no direct normative force.

This appalling legislation, has, whether directly or indirectly, received the Court's seal of approval and is bound to surprise all of us as its provisions are employed in the future.

The Judgment in Brief

On Wednesday, 11 June 2008, President of the HCJ Judge Dorit Beinisch, confirmed in her decision, the arrest and continued administrative detention of two Gazan residents, who have been detained for five to six years to date. In her challengeable rationale, Beinisch upheld the following points:

- The law that permits the detention of such combatants was not made for the purpose of holding such detainees as "bargaining chips." Although the legislative reform proposals were brought up for this purpose, its legislative history and the background for its development confirm that its purpose is "to prevent those who endanger the country's security due to their activities or affiliation with a terrorist organization from rejoining the military fighting circles." (para 6 of the judgment)

- The law is not creating a third classification of fighters that are not civilians and are not combatants, against the traditional frameworks of IHL. Unlawful combatants are civilians that participated in the fighting, and the purpose of the law is to enable their administrative arrest.

- Since the purpose of the law is to govern the treatment of protected persons under IHL, it is not applicable to the nationals or residents of the State of Israel, but only to non-nationals, and in particular Gazan residents. The Court left untreated the question of whether the law applies to the residents of the West Bank.

- According to the conceptual interpretation of the law, a person can be arrested only when his/her person presents an individual danger to the country's security in a proven and evinced fashion. This requirement means that the definition of an "unlawful combatant" should be grounded on the level of "danger" presented by the specific individual. Article 2 of the law on "unlawful combatants" defines a person as such who has "participated in hostile activities against the State of Israel, either directly or indirectly, or was involved with a body engaging in such activities…" For direct incrimination, it is required that the person contributed to the enemy activities in such a way that exemplifies his personal responsibility; for secondary or indirect involvement, it is required that the person have a more than a diluted relation with such an organization. However,

in order to base an arrest of a person who is a member of a terrorist organization […] it is not necessary that this person contribute directly or indirectly to the fighting activities themselves, and it is possible that his link and contribution to the organization would be expressed in other ways that would enclose him in the fighting circle in a wider sense, in a way that would justify his arrest under the law […] it is highlighted that the evidence required for the definition of an 'unlawful combatant' in the intended sense, includes from its meaning the proof of danger posed by the individual as a result of the kind of involvement he has in the organization. […] Furthermore, only after the State has proved that these terms have been fulfilled and the person concerned constitutes an “unlawful combatant,” can the country use the power of this proof as stated in Article 7 of the law, and following it the release of the arrested would endanger the security of the State as long as the opposite was not proved" (para. 21 of the judgment). [emphasis added]

The test is formulated as an evidentiary presumption, that once strengthened by the State can only be rebutted if the appropriate evidence is brought forward for the protection of the detainee in proof of his innocence.

- The Court left untreated the question of validity and legality of the various grounds upon which the detention of such persons can be approved, i.e. the "danger" ground, according to which the State can detain a person it deems dangerous unless proven otherwise. The Court accepted the State's argument that it does not rely on this ground in proceedings before the law, and held that if there would be a case where the State would detain on this particular ground, it would be possible to bring the case back in front of the Court for review.

The Court preferred to leave the scope of the law wide and limit it in regards to each particular application, rather than seeking to limit its scope of application and preempt misuse. It held that, in light of the uniquely broad nature of the law’s provisions, it does not see any problems of legality with the following provisions:

- Holding a retrospective hearing (for the granting of an arrest warrant) and not when the decision is in the hands of the relevant military commander who purports to uphold it

- 14 days detention without a right or possibility for judicial review or access to a court

- 7 days detention without a right to a meeting with a legal representative

- Reliance on secret information and tentative evidence such as hearing witnesses—the nature of the evidence is characteristic of administrative detention, as otherwise the person concerned could be subject to criminal proceedings and tried in front of a criminal court

- The fact that the detention/arrest warrant is not limited in time and is valid until the end of the fighting operations (with a possibility for review by a court)

There are, however, a number of substantive and procedural difficulties for which the Court has been strongly criticized and which needs to be redressed in order to afford clarification to those applying the law and security to those that may be affected by it.

Extending the Applicable Legal Framework?

The Israeli HCJ has developed the applicable international legal framework for each particular situation throughout its case law. Crucially, it must be recalled that here, once again, the Court confirms its misinterpretation of the relevant provisions of IHL by upholding that the Gaza Strip is not governed by the international law of occupation. It then goes on to assert the following in paragraph 11:

"Every attempt to impose the authority and presence of the State of Israel in the Gaza Strip would involve prolonged and complicated military operations. In these circumstances—in which the State of Israel does not have real potential to control effectively the happenings in the Gaza Strip—the Gaza Strip cannot be seen as territory that is subject to a belligerent occupation[iii] under international law, even though due to the uniqueness of the situation that subsists in the region, Israel is under an obligation towards the citizens of the Strip (for a perspective on the position that the Gaza Strip is not occupied territory see: Yuval Shany "Faraway so close: The legal status of Gaza after Israel's disengagement," 8 Yearbook of International Humanitarian Law 2005 (2007) 359; also see the judgment of the ICJ in Congo v Uganda, where the importance of the physical presence of military forces was emphasized for the establishment of an occupation (Armed Activities on the Territory of the Congo, ICJ 2005, at para. 173; as regards the existence of certain obligations by the State of Israel towards the Gazan population see the judgment in HCJ 9132/07 Gaber Albasioni v Prime Minister of Israel).

In determining the applicable legal framework governing the factual submissions of the petition lodged to the Court, the following is upheld in paragraph 9 of the judgment:

"The rules of international law that apply to international armed conflicts are based principally on the Fourth Hague Convention and the regulations annexed to it. Their rules are also part of customary international humanitarian law [...] in the Fourth Geneva Convention the customary rules of which are part of the national Israeli law, and the Court has previously required the interpretation of its various provisions [...] and in the Additional Protocol to the Geneva Convention to which Israel is not a party, however its customary provisions are also part of the Israeli law. Additionally, where there is a gap in the rules of armed conflict specified hereby, this framework can be completed by international human rights law."

Interestingly, the Israeli Court asserts that the conflict between Gaza and Israel is an "international armed conflict." For this purpose, the Court makes reference to Antonio Cassese (International law, OUP, 2005) who holds that an international armed conflict can exist where a State is confronted by an insurgent group, a non-state actor that may emerge from within another State. It is of general concern that this is taken as a means for judicially grounding and furthering the separation between the population of the West Bank and the Gaza Strip, that are an integral territorial entity.

There are many aspects of this judgment that recall Chief Justice Barak's words in the Targeted Killings decision handed down on 13 December 2006 in the case of HCJ 769/02 Public committee against torture in Israel v Government of Israel[iv] and its selective referencing to the applicability of international humanitarian rules. There are, however, a few crucial points of distinction between the two judgments, based principally on the factual context of each decision. In the Killings case, the Court examines the situation in the West Bank, as "occupied territory" and Israel's obligations as an occupying power. In the latter case pertaining to the Gaza Strip, which is according to the Court no longer occupied, the Court considers the applicability of humanitarian rules to an armed conflict between two actors (i.e. State and non-state).

It is arguable that there is a difference in the applicable legal framework; however, it is difficult to discern whether one is stronger or more comprehensive than the other. At the very least, these selective and tentative references to international instruments evince the HCJ's general tendency to cite international rules as a means of recalling their existence, but to subsequently fail to effectively apply them to the relevant facts and determine, more than tentatively, their compatibility with these legal frameworks.

Confirmation of the Complimentary Relationship Between IHL and Human Rights but Failure to Apply the Relevant Provisions

The Court addressed a number of controversial topics that concern the applicability of IHL as well as the complementary nature of IHL and international human rights law.

The applicability of international human rights law is in this day and age indisputable virtually in any conflict related context (i.e. extraterritorially under "effective control," to non-nationals within the jurisdiction of the State, and arguably also to non-state actors).[v] IHR serves several important functions: it affects the interpretations of IHL norms, it fills normative gaps in the scope of protection afforded by IHL, and it validates the legitimacy of the involvement of international supervisory mechanisms in situations of occupation.span class="MsoEndnoteReference">[vi] However, the position of human rights bodies and the Israeli officials has long been diametrically opposed.

Virtually all scholars, without exception, and a myriad of international instruments and commentaries have recognized not only the complimentary relationship between international human rights and humanitarian law, but also that this relationship is of fundamental importance.[vii] Amongst many others, Israeli academics Orna Ben-Naftali (Tel Aviv University) and Yuval Shany (Hebrew University) have held that "it is the very interaction between IHL and human rights law which determines the precise scope of the legal obligations the Belligerent Occupant has to shoulder vis-à-vis the population and the corresponding scope of the protection the latter enjoy, in any concrete situation."[viii]

What is the importance of upholding the complimentary relationship between IHL and HR law as the Court did in paragraph 9 of this judgment? It appears that this is the most colossal conclusion of the Court in the present judgment as it has long been a controversial debate with no clear position. Judge Beinisch  takes a similar position to Judge Aharon Barak in the Targeted Killings case in upholding the traditional lex specialis interpretation of the relationship between these inseparable legal fields. It is, however, extremely unfortunate that whilst the Court explicitly references international humanitarian rules (i.e. Articles 41-43 and 78, IV Geneva Convention) and guarantees of international human rights law as part of the tools to be used for evaluation of the legality of the legislation for detention (para. 9 of the judgment), in paragraph 24, President of the Court Judge Beinisch avoids making any normative assertions in this regard:

"[I]n any place, since the State has so far avoided using the test found in Article 7 [of the law applicable to the detention of unlawful combatants], the question to what extent the present legislative framework weakens the evidential requirements for individual danger for the purpose of detention, and whether this disproportionately hurts the constitutional right to liberty and the principles of international humanitarian law, does not arise." [emphasis added]

Discrimination Between National and Non-National Detainees

The Court held that the discrimination between nationals and non-nationals is justified for the purpose of administrative detention and thereby determine one procedure for internal factors and another for externals (viz. persons involved in a conflict situation). This does not, however, sit comfortably with the United Kingdom judgment of the House of Lords in the Belmarsh case[ix] that condemned the differentiated treatment of non-national prisoners and confirmed the State’s obligation to comply with procedural rights guaranteed by various international human rights and humanitarian legal instruments.

Further, it is clear from the facts of the Israeli Unlawful Combatants case that the law intends to narrow and relax the procedural guarantees that the State will be obliged to provide to those who will be arrested and detained in enemy territory, outside of the territorial borders of the State of Israel. This is palpable considering the large number of persons who are expected to be detained under this law.

Resurfacing of torture concerns

The Court's decision is widely criticized for its failure to have proper regard to prisoners' rights during their detention. It seeks, in its judgment, to protect the person's fundamental right to liberty (guaranteed by many international and regional instruments and confirmed by the Basic, constitutional, law in Israel) but neglects the need for continuous external supervision of the manner in which the prisoners are treated, particularly in the situation of intensive investigations that take place during the preliminary stages of detention before the prisoner has access to either a lawyer or a court.

This is a worrying situation that risks and even foresees the resurfacing of an underlying culture of torture and cruel and inhumane treatment that is continuously being fought back. Time periods for incommunicado detention under Israeli law (a system that forthrightly considers itself as part of the "Western," "developed" world) are some of the most appalling in the world. The implementation of legal framework that builds upon existing laws must be closely monitored to ensure that its harmful characteristics are not unleashed.

Disregard of Fundamental Guarantees of “Due Process”

The Israeli Court held many a time that effective judicial review needs to be meticulous and diligent, and that the Court must base its decisions on clear and convincing evidence. The Court emphasized that judicial review is the most important safeguard for ensuring the proportionality of the violation of a person's fundamental right to liberty. This judgment neglects the reality of administrative detention—the arrestee's inability to protect himself effectively from a place where he does not know what are the claims against him or the evidence on which the State is relying.

On the balance, with its strong advocacy towards a practice compliant with human rights and other obligations, national and international, the Court decided to leave the matter open and very explicitly refused (see paragraph 24 of the judgment in Hebrew) to take a stance on the compatibility of the law with these basic guarantees, and the State's minimal obligations in international law, instead holding that it is unclear from the current ambiguous wording of its provisions and that they should therefore be examined where and when the State chooses to use them on a case by case basis.

By refusing to appreciate the legality of the legislative provisions at hand, the Court failed to admit the obvious—there are insufficient procedural guarantees that disproportionately and unacceptably risk the violation of detainees' procedural and substantive rights. A less hazy interpretation of the Court's decision can reveal that indeed the intention was to support and even arguably widen the provisions of the law, despite the disproportionate nature of the allowances they afford.

Having mentioned the relevant international legal frameworks, the Court failed to apply the relevant provisions in its evaluation of the legality and compatibility of the detention legislation with the established international and national constitutional frameworks. This approach that mentions a legislative framework but selectively fails to apply it should be recalled in future decisions on the validity of the detention legislation and/or its specific provisions. The framework of international legal obligations will then have to be applied in evaluating the compatibility of the latter with the State’s international obligations.

Inadmissible Justifications for Derogation from Provisions of IHL

The Israeli HCJ emphasizes "that it is indisputable that the legislative directions of Parliament stand higher than the directions of international law" (para. 9). Nevertheless, having outlined the relevant applicable law, the Court asserts that "it is necessary to interpret Israeli legislation in a manner that is compatible as far as possible with the norms of international law that oblige the State of Israel"(para. 9).

Equally, the Court finds it appropriate to highlight that when interpreting national law compatibly with international legal norms, "one cannot underestimate the fact that the system of rules that exist today in international law are not suitable for the changing reality and the terror occurrences that changes the nature of international conflicts, their face and their participants." Considering these limitations, the Court sees its role to do "all that is possible in order to interpret the existing laws in a manner that is suitable to the present reality, and following the principles of international humanitarian law" (para 9).

Humanitarian rules can and have been interpreted leniently to apply to various conflict situations. The accommodation of non-state actors by international human rights law and customary humanitarian rules is, under the present state of international law, beyond dispute. The Court's judgment, therefore, is a submission that fails to appreciate the importance of enforcing the appropriate international fundamental standards in conflict situations, regardless of whether the traditional rules applicable to international armed conflicts between states can be stringently applied.

Derogation from Judicial Precedent and Violation of Legal Certainty

The Court did not make any effort to settle the possible disputes between this judgment and that in the case of HCJ 3239/02 Mar'ave v Commander of the Forces in the West Bank, where it rejected a military order in the Occupied Palestinian Territories to allow the arrest of persons for 12 to 18 days without judicial review and 4 or 8 days without a first hearing during a series of military operations in the West Bank, i.e. Homat Magen operation. The Mar'ave judgment held that a situation of armed conflict cannot justify the detention of persons without judicial review for such long time periods. Here the matter similarly concerns arrests that could be used for intense investigations (risking the resurfacing of the torture tactics in this field) and the initiation of criminal proceedings against a person.

This judgment should have been compared with the Mar'ave judgment, where the Court not only considered the UN International Covenant on Civil and Political Rights and confirmed its applicability, but also held that for the derogation from its provision and the limitations thereof, the State must comply with the basic guidelines and standards of IHR (e.g. proportionality, a restricted margin of appreciation, etc.). Nevertheless, the Court does not refer to Mar'ave or concern itself with its distinction, at the very least for the sake of following a culture of sound legal reasoning and affording the appropriate respect to judicial precedent.

The inexplicability of this particular gesture makes the Israeli High Court’s overpowering campaign to turn down the petition alarmingly apparent. Human rights are part and parcel of a conflict's legal regime and this example of a practice of complete and utter disregard of the very fundamental statal obligations of a minimal nature shows another face of the selective approach the Israeli HCJ has long adapted to dealing with the applicability of international law.

Valentina Azarov is a Legal Researcher at Hamoked: Center for the Defence of the Individual.

The opinions expressed in this piece are the author’s own and should not be attributed to Hamoked.