"The Law Regarding Detaining Unlawful Combatants": Flagrant Violation of Judicial Frames of Reference and International Conventions

Since October 7, 2023, Israel has enacted a number of legal amendments to the “Law detaining unlawful combatants” which has been in existence since 2002, the aim being to legalize the arrest of thousands of Palestinians inside Gaza, and as part of emergency regulations put into effect when war was declared. These amendments were in three stages the last of which came into effect at the beginning of August, 2024, and remains in force until the end of November, 2024.

This paper examines these amendments in detail and discusses their legal implications for those imprisoned since October 7 in military jails, particularly in Sde Timan concentration camp but also other military prisons attached to the Israeli Prisons Authority. It further demonstrates how these amendments transformed these military prisons into centers for torture of detainees who are totally secluded from the outside world within what one might call a “black hole” and are denied any legal oversight, and where the International Red Cross is not allowed to visit these prisons. Given their forcible disappearance and the violation of prisoners’ rights and their human dignity, the lives of these detainees in prisons and camps have turned into a living hell, where tens of them have met their death, as happened for instance to Dr Adnan al-Barsh. Thousands of others are being detained without trial until the war’s end.

This paper will also deal with the original framing of this law ever since the draft law was submitted in 2000 that dealt with enemy combatants who do not deserve to be treated as prisoners of war, together with the legal rationale offered for it as well as the political, historical, and judicial contexts, all of which resulted in the adoption of that law at its first reading in 2002. This paper will also examine how Israel’s Supreme Court handled the problem of how this law violated international humanitarian law and the third and fourth Geneva conventions regarding the protection of civilians, together with the solutions it devised and the amendments it proposed to the government in order to be able to coexist with this law in its present form.

This paper adopts a methodology of reading and analyzing legal texts (laws, draft laws and court decisions), reports, official governmental and judicial statements as well as statements made by prisoners and others who were released, and testimonies by lawyers.

The original framing

International humanitarian law deals with two groups of citizens during armed conflicts and wars. There are the civilians who should be cared for and protected in accordance with the fourth Geneva convention, and the combatants in accordance with the third Geneva convention. Each of these groups is granted a special legal status if captured as prisoners of war. The convention forbids maltreating, torturing, or murdering them and emphasizes the need to take care of them, inform their relatives of their detention, refrain from trying them in criminal courts and returning them to their motherland in accordance with exchange of prisoner deals or at the war’s end.[1]

The expression “unlawful combatant” refers to a person who belongs to an armed group which the other side does not regard as a lawful combatant. Hence, if captured, the Geneva convention does not apply to such a person, and the members of that group are considered a danger to state security and are thus arrested and detained indefinitely, as is the case with thousands of Gazans arrested by Israel inside Gaza. The US administration of President George W Bush employed this same justification during what it called its “war on terror.”

The rationale and the political circumstances

The first step in enacting this law began with the decision of the Israeli Supreme Court taken on April 12, 2000, under the presidency of Judge Aharon Barak in case number 7048/97 and known as “So-and-so and others vs Security Minister”[2]. That decision accepted that Israel could not continue to detain Lebanese citizens who had finished their sentence simply to act as bargaining chips and hostages for the recovery of Israeli soldiers lost in Lebanon. Furthermore, it was deemed inadmissible to keep a person in detention based on the powers in the Emergency Law (Detentions 1979, known as the law of administrative detentions in the case of the petitioners)[3] if this was the sole reason for a person’s arrest and if such a person does not represent a threat to state security. Following that decision, the petitioning prisoners were released.

What the Supreme Court stressed in that decision was that, as a court, it could not accept the law of detention as a legal basis for that detention. In other words, the state needed to enact another law towards that end.  In a later decision by that court pertaining to an appeal against its first decision and submitted by the family of the soldier Ron Arad and known as case 2967/00 (Batia Arad and others vs the Israeli Knesset and others)[4], the court’s president Aharon Barak pointed out that the security cabinet’s decision of 18 April, 2000, “to use all possible means to obtain information about Israelis taken hostage or missing” should be incorporated into law. Issuing from this came the initiative to enact the law “to detain unlawful combatants” whom Israel does not consider prisoners of war. Barak stressed that he does not consider enacting such a law to be an attempt to circumvent the Supreme Court’s decision in the first case no. 7048/97, and that the Knesset has the right to change the legal status quo.

Here, we note how Judge Barak was urging the government to enact such a law and how his decisions and opinions constituted the drive behind enacting that law. Thus, a mere two months later a draft law was submitted to do with detaining enemy combatants who do not deserve to be treated as prisoners of war[5]. The rationale of this law was based on the two Supreme Court decisions mentioned above, and this law was designed “to regulate the validity and legality of that detention.” The proposed law was met with widespread local and international condemnation and did not become law. However, soon after the United States formally adopted the expression “unlawful combatants” the Israeli draft law was once again a subject of discussion in February, 2002, this time under the heading “Law for detaining unlawful combatants” and was then adopted in March, and began to be employed against Palestinians detained in Gaza. The definition of the objectives of the law included the sentence “to regulate the measures taken to detain unlawful combatants who do not meet the conditions of being treated as prisoners of war.”  Thus, Israel created a third group which was neither civilians nor unlawful combatants[6] (6), and so circumventing the Geneva conventions. The new law permits the military authorities to detain individuals arbitrarily until the war’s end or the resolution of the conflict. It proceeds from the premise that releasing an individual might threaten state security as long as the war continues, as stated in Article 7 of the law[7], based on the assumption that a detainee may belong to that group but without the need to prove this. Detention takes place upon an order issued by the army chief of staff which means that a detainee might remain in jail for years on end, without trial and without knowing when the detention might end.[8]

The law further permitted the detention of any individual by a military force for a period of up to 96 hours without a detention order and without bringing him before a judge for legal oversight lasting a maximum of 14 days (in ordinary administrative law the maximum is 48 hours). A detainee can be forbidden to meet with a lawyer for a maximum of 21 days.

Although the law obliges the authorities to bring the detainee before a civil court, and states that reviewing the detention must take place within 14 days of that detention, then every six months, and permits the detainee to submit an appeal to the Supreme Court, yet the Court’s acceptance of the definition of a detainee as an unlawful combatant, plus the Ministry of Defense’s acceptance of the view that a certain group of individuals constitutes an enemy force membership of which renders releasing them a threat to state security---added to which is the use of secret evidence as in administrative detention---all this renders proving the opposite and releasing the detainee impossible. The law exempts the state from proving the charges as in normal criminal procedure, a measure which undermines the concept of justice and fair procedure and renders detention an arbitrary act.

Legal transformations

Although disengagement from the Gaza Strip occurred in September 2005, the army chief of staff issued an order to maintain the detention of Palestinians from Gaza who had been administratively detained in the period 2002 to 2003, based on the law of unlawful combatants accepted by the Tel-Aviv Central court. The detainees then submitted an appeal to the Supreme Court challenging that order (case no 6695/06—So-and-so vs the State of Israel). The appeal was submitted by the Center for Defense of the Individual as well as the petitioners in person and posed a challenge to the law of unlawful combatants, arguing that it is illegal and contrary to international law. The petition also claimed that following the disengagement and the ending of military rule, Israel has no jurisdiction to issue such administrative detention orders. The Court however rejected the appeal and decided on June 11, 2008, that the law entitles the authorities to detain all who play a prominent role in acts inimical to Israel or belong to powers inimical to it, and who do not enjoy the status of war prisoner. The court further affirmed that the law had no defects and would pass the test of reasonableness.

In her deliberations, the President of the Court, Dorit Beinisch, stressed that the law does not use the detainees as a bargaining point but seeks to ward off those who played a role in the fighting against Israel and are not innocent bystanders in the fighting. Beinisch also argued that the expression “unlawful combatant” does not violate international law but constitutes a new instrument to deal with citizens, adding that the definition of a citizen in international law takes a negative form, i.e. one who is not a fighter. Accordingly, she concluded that an unlawful combatant belongs to the category of citizen and not that of fighters and pointed out that the Court had established this beforehand in file no 769/02 (Committee Against Torture vs Government of Israel and others) known as the Assassinations Appeal issued December 14, 2006[9]. While the Court noted that the dates specified in the law seriously affect the freedom of the detainees, yet the Court stressed, in the words of its President Beinisch, that because of the state of war, the measures and schedules pertaining to the issuance of a detention order (96 hours), bringing the detainee before a judge (14 days) and forbidding contact with a lawyer (21 days) were all reasonable intervals, advising the Knesset to shorten them but herself declining to do so.

Following several other amendments in the period between 2008 and 2016, the law was passed but radically transformed with the beginning of the war of 2023.[10]

Consequences and politicization since 2023

Immediately after the declaration of war on October 7, 2023, the Netanyahu government declared the need to make further amendments to the law allowing it to arrest Palestinians in the Gaza Strip. The first amendment was passed on December 18, 2023, to last 4 months and in force until April 18, 2024. That amendment included radical changes to the schedules mentioned in the basic law which are both illogical and unreasonable, placing the lives of Gazans in Israeli jails in imminent and totally irrational danger. The rationale for that first amendment stated that these amendments were adopted for security needs to allow interrogating thousands of Gazan detainees, a process described as difficult and complex.

There were published reports, among them some emanating from Israeli officials, that confirmed the huge scope of detentions and its doubling from one month to the next. In interviews conducted by the Knesset Committee for Foreign and Security affairs on December 18, 2023, the government admitted that the vast majority (80%) of those detained according to the law of unlawful combatants were arrested inside Gaza and that the great majority of these (85 and 90 %) were civilians. Among them, it should be noted, are women and children considered by Israel as unlawful combatants who were arrested in demeaning circumstances and were all thrown into the Sde Timan concentration camp.  

The first amendment:

This was called amendment no 4 in the law of unlawful combatants (Law of “Iron Swords”). It permits putting into effect Article 10A in the law of unlawful combatants in case war is declared, and it would be the government’s prerogative to do so. This amendment permitted detaining an individual for 45 hours instead of 96 hours without issuing a detention order, and delaying bringing him/her before a judge for 75 days instead of 14 days. It further allowed this to take place by video conference instead of brining the detainee in person to a courthouse before a judge, and raised the period where no lawyer is allowed to meet the detainee from a maximum of 21 days to 180 days. These amendments constituted a violation of due process and an egregious violation of detainee rights, placing them in imminent danger. These amendments can be interpreted as forcible concealment where an individual is detained without a detention order for a lengthy period and where a soldier can make an arrest and regard someone as an unlawful combatant. The detainee would then be unable to meet a judge or lawyer for a very long time and remain unobserved or unable to have recourse to justice, all of which constitutes a flagrant violation of a detainee’s rights.

Several Palestinian, Israeli and international organizations criticized these amendments, regarding them as flagrant violations, and pointed to their dangers and consequences for the detainees. Petitions were submitted to the Supreme Court challenging these amendments (Petition 1414/24—Committee Against Torture and others vs Knesset and others) arguing that the amendments were illegal and unreasonable; that they are a flagrant violation of detainees’ rights; that they transform detention into an arbitrary and random arrest without legal oversight, and that they increase the chances of detainees being punished and tortured. The subject was raised in the media, so the Supreme Court held a session on May 27, 2024, and asked the government to provide answers and explanations to the points raised by the petitioners.

The second amendment:

This was published on April 7, 2024, and went into effect on April 19, 2024, to last until July 31, 2024. The government shortened the maximum number of days before a detainee can meet a lawyer from 180 days (in the first amendment) to 90 days, but did not restore what that period had been in the original law, i.e. 21 days. It is possible that pressures exerted by such developments as Israel being accused of war crimes and genocide in Gaza before the International Court of Justice, widespread accounts of torture in military camps and the death of some detainees while in prison may all have influenced the formulation of these amendments.

In practical terms, this second amendment made possible the meeting with a lawyer for detainees totally secluded from the world and about whom nothing is known. However, some accounts and testimonies of the dangers involved seeped out, and lawyers who requested meeting detainees faced a host of measures which in effect made these meetings very difficult. Among such measures were the following: the authorities demanded that lawyers obtain power of attorney from close relatives which in a state of war was almost impossible to obtain or contact these relatives when there was no electricity or internet, and forcible evacuations were constant; sometimes no first-degree relatives could be traced to sign the power of attorney. In addition, lawyers faced several difficulties when attempting to schedule visiting times. These visits were then set by the authorities at very distant dates especially in prisons belonging to the Prisons Authority such as the Naqab prison of Katsiot which holds a large number of Gazan prisoners. Alternatively, a state of emergency would be announced when the lawyers arrived at the prison and their visits would be cancelled, together with other similar measures designed to effectively prevent lawyers’ visits to prisoners for an additional month at least from the date of the second amendment coming into effect.

The third amendment:

The state published the third amendment on the eve of a second discussion held on June 11, 2024, regarding the law concerning petition no 1414/24. This was published on July 30, 2024, and it was to come into force on August 1, 2024. This amendment was a positive step which shortened all periods and dates set beforehand and included shortening the time before issuing a detention order down to 30 days (and 20 days in the case of minors)[11] (11); shortening the period preventing the appearance of a detainee before a judge from 75 days to 45 (30 days for minors), and reducing the period of meeting with a lawyer from 90 to 75 days. This last amendment also stipulated the necessity of introducing committees of inspectors and observers in camps and prisons. But all these inspectors belong to state institutions, political or judiciary, which renders it questionable whether they can be objective where prison conditions and treatment of detainees are concerned. Before the court issued its decision, it asked the government to provide explanations of certain points especially as regards postponement of legal observation for 45 days.

At first glance, it might be thought that the reductions included in the second and third amendments are a good thing. But we must not forget that the first amendment that followed the war, as well as the basic law itself, contain flagrant violations of the basic rights of the detainees as also of juristic procedure and accountability, and are far removed from normal detention laws, or even from administrative detention, itself unjust.

In its answer to the petition at a session in June 2024, the state admitted it had arrested about 4,000 Palestinians from Gaza until the end of June and released 1900 of them to Gaza. This confirms the fact that all who were released were in fact civilians and non-combatants. It also affirmed that there were still some 2100 detainees dubbed unlawful combatants until the war’s end and some 200 detained according to a temporary order, i.e. yet to appear before a judge.

Conditions of detention: punishments and torture approximating to the point of death

Article 10 of the law speaks of the conditions of detention and the need to detain people in appropriate circumstances where no harm is done to the detainee’s health or dignity. But what is happening on the ground especially after October 7, 2023, is the exact opposite, and constitutes punishment and torture, leading to the death of tens of prisoners inside Israeli jails.

The conditions under which Gazans are detained in these jails do not meet even the minimum required by conditions of detention and protecting the dignity and rights of a detainee as stated in the draft law of 2002. These conditions further violate international conventions such as The International Convention for the Protection of All Persons from Enforced Disappearance, the Geneva conventions, The Nelson Mandela Rules for Treatment of Prisoners, and the Rights of the Child Convention. This is because among Gazan detainees are tens of minors, among them 20 in prisons belonging to the Prisons Authority as per its report dated April 2024. Based on statistics published by the Palestinian Authority for Prisoners and the Liberated as well as other Palestinian organizations the total number of detainees on August 1, 2024, was 9900, among whom are 250 children. Some are in the military camps of Ofer and Sde Timan while others are held in prisons belonging to the Prisons Authority like Ofer and Naqab. Prisoners are subjected to inhuman, demeaning and cruel conditions of detention and treatment which often reach the point of torture in a manner contrary to the Convention against Torture.

Several media outlets, including Israeli media and judicial organizations, have published reports describing conditions of detention that count as torture as well as testimonies of those who were released and returned to Gaza regarding the torture and punishments they suffered while in detention. A letter by a physician who worked in the Sde Timan concentration camp revealed what was happening there and exposed the scandal of a rape of a Palestinian detainee and other savage practices against detainees. The spokesperson for the High Commission for Human Rights emphasized the need to conduct an investigation of the matter but despite the seriousness of the charges, the accused were confined to house arrest.

A report by the B’Tselem Center headed “Welcome to Hell” and published in August 2024, contained testimonies by 55 Palestinian men and women prisoners, 21 of whom were Gazans, who were detained in Israeli jails or camps and were recently released, the vast majority of whom were not brought to trial. The report details the cruel and arbitrary punishments, sexual assaults, insults, abuse, deliberate starvation, filthy hygiene, sleep deprivation, confiscation of all common or personal belongings, denial of needed medical care, and the role played by a savage group called “Keter” which the prisoners call the “Death Squad”, consisting of masked individuals with attack dogs who carry out the assaults and torture. The testimonies of prisoners show how more than 12 military and civilian prisons were transformed into a network of concentration camps basically designed to torture their inmates. These testimonies describe them as in effect camps for torture. The report further documents the existence of an official and systematic policy to torture prisoners and more than 60 detainees have met their death in these camps. Haaretz newspaper had already published a news item last March reporting the death of 27 Palestinian detainees from Gaza in Israeli prisons and concentration camps.

The B’Tselem report goes on to say that those whose job it is to protect the authority of law and to defend human rights have turned a blind eye to the prison policy of Ben Gvir, allowed prisoners to suffer violations of their human dignity and made torturing them into a systematic policy that transforms the prison system into an instrument of torture, through detaining thousands without trial and holding them in inhuman conditions.

Conclusion

When a state of war was declared after October 7, 2023, a state of emergency detention was announced in Israeli jails. These jails were closed before visitors such as relatives, lawyers, and the Red Cross. In tandem with the emergency regulations several amendments were enacted to the law detaining unlawful combatants which led to the detention of more than 4,000 Palestinians from Gaza, most of whom were civilians and included women and children. They were then thrown into prisons and concentration camps which turned into centers of torture and cruel punishment. The prisoners inside were totally cut off from the outside world and tens of them lost their lives in these prisons.  Thousands are being detained without trial and are being told that their detention will last “until the war’s end.”

This policy paper has attempted to show how the concept of unlawful combatant, used by Israel and before that by the USA, can circumvent international law. However, the Israeli Supreme Court does not regard this as a circumvention of international law and offers an alternative interpretation by arguing that it accords with international law in regarding an unlawful combatant a part of the civilian population.

The paper has also attempted to demonstrate how the Israeli Supreme Court encouraged the government to enact the law of unlawful combatants and refused to accept that detentions should be carried out according to the law of administrative detention. Its main concern was with the juristic provenance and source of detention and not with detention itself or the legal definition of a detainee. Hence the Court has accepted that article which permits detention until the war’s end, since that law serves the state’s security and policy yet keeps thousands of detainees in Israeli prison until the war’s end, a matter that might last for years under conditions revealed to be of torture, forcible disappearance and death.

As more cases of brutal abuse, torture, and death of detainees inside jails come to light, the prisoners and their families are entitled to take all needed legal measures to expose these practices, attain their rights and indict the officials responsible for their torture and others who issued such orders. They are further entitled to address their legal charges to all international organizations and request protection since torture and forcible disappearance are totally and without any exception proscribed by international law.

List of amendments to the law detaining unlawful combatants

*The second amendment was published on 7 April 2024, but came into force on 19 April 2024.

*The third amendment was published on July 30, 2024, and came into force on August 1, 2024.

[1] "The Legitimate and Illegitimate Fighter According to the Rules of International Humanitarian Law", Journal of Legal and Political Studies, Vol. 4, No. 2, ASJP, 6/30/2018, pp. 18-35.

"Definition of prisoners of war and the rules prescribed for their treatment according to the rules of international humanitarian law", "Journal of Law and Humanities", Vol. 4, No. 4, "ASJP", December 20, 2011, pp. 64 - 80.

[2] Case summary: The decision was issued by a majority of six out of nine judges in a "second round" in the case of the petitioners, eight out of ten Lebanese citizens who were arrested from Lebanon in 1986-1987 and sentenced, but after completing their sentences, Israel kept them in captivity under expulsion orders and then administrative detention orders issued by the Minister of Defense based on Section 2 of the Emergency Powers Law (Detention 1979, the "Administrative Detention Law"), and renewed every six months to extend their detention. The last extension was approved by the Tel Aviv-Jaffa District Court on 8/22/1994. A petition to the Supreme Court against the extension of detention was filed, the appeal was rejected in the first round, and a decision was issued by Justice Barak, who decided two to one whether the Security Minister's decision to keep the detainees in captivity was valid and admissible. The decision was issued on 11/13/1997. Accordingly, the petitioners filed a request for a second round, which was granted, and a second round was held in which the first decision was overturned. The last extension was approved by the Tel Aviv-Jaffa District Court on 8/22/1994. A petition to the Supreme Court against the extension of detention was filed, the appeal was rejected in the first round, and a decision was issued by Justice Barak, in which he decided two to one whether the Security Minister's decision to keep the detainees in captivity was valid and admissible. The decision was issued on 11/13/1997, and accordingly, the petitioners filed a request for a second round, which was granted, and a second round was held in which the first decision was overturned. The grounds for extending the detention were not that they posed a threat to Israel's security, but rather that they would be used as a negotiating card for the release of Israeli hostages (Ron Arad, as the court gave the family the right of reply). The court accepted the petition and recognized that according to the Detention Law, there is no authority to detain a person who is not a danger to the security of the state, and therefore there is no authority for the Minister of Security to continue detaining the petitioners, so if there is no other reason to detain them, they must be released and arrangements made for their return to Lebanon. In fact, eight of them were released on April 19, 2000. Abdelkarim Obeid and Mustafa al-Dirani, who were kidnapped from Lebanon before that, were not part of this petition. Obeid, who had been detained since 1989, and al-Dirani, who had been detained since 1994, remained in detention until 2004, as the former was linked to the case of the capture of two Israeli soldiers, and the latter to the case of the soldier Ron Arad.

[3] known as the Emergency Powers (Arrests) Act of 1979. This law comes into effect when a state of emergency is declared (Section 1 of the law), at which point the security minister is authorized to issue an administrative detention order against any person based on Section 2, including the requirement that the detainee be brought before a judge for legal oversight within 48 hours of arrest (Section 4 of the law) and again before a judge every three months (Section 5).

[4] The petition was dismissed on April 19, 2000, as the family of Ron Arad and others objected to the High Court's decision to release 13 Lebanese (8 petitioners and 5 others) and to keep al-Dirani and Obeid in detention.

[5] Bill No. 2883, published on June 14, 2000 in the Book of Laws known as "Records" No. 2883.

[6] Although the Supreme Court in its subsequent discussion in File No. 6659/06 - Flan v. The State of Israel - gave another interpretation that it considers consistent with international law that an unlawful combatant belongs to the category of citizens rather than combatants.

[7] "Israel: 'Human Rights Watch' Condemns Opportunistic Law," Human Rights Watch, 6/3/2002g: Human Rights Watch Denounces Opportunistic Law," Human Rights Watch, 6/3/2002.

[8] Ibid.

[9] In this decision, the Tel Aviv District Court defined the criteria that allow the state to use assassination/lynching, in which the court rejected the term "unlawful combatant," but recognized that a citizen who participates in combat operations is not subject to the protection of citizens, and can be targeted.

[10] In July 2008, the Knesset Foreign Affairs and Security Committee proposed to the government to make some amendments to the law, as stated in the proposal to be in line with the security situation in light of the second war with Lebanon. The proposal included raising the period of postponement of legal supervision and bringing the detainee before a judge from 14 days to 28 days, and the proposal met criticism from human rights organizations and research institutes that noted the great potential for violations and torture methods that can be practiced during arrest and investigation before the detainee is brought before a judge. Amendments were made to the law regarding who issues the order and the distribution of powers. The amendment entered into force on August 7, 2008, and kept the period of legal supervision at 14 days (Law Book Records No. 2178), and an amendment was reintroduced on July 8, 2013. On March 28, 2016 (regarding the activation of the law in the event of a declaration of war, adding item "10a"), it was published in Law Book Records No. 2540.

[11] The generation of the detainee was not previously taken into account; neither in the Basic Law, nor in the First and Second Amendments.