"Unlawful Combatants Law": Arbitrary Detention and a Stark Violation of Genuine Judicial Review and International Conventions
Sunday, November 24, 2024
Jinan Abdo, The Palestinian Institute for Studies
Since October 7, 2023, Israel has made several amendments to the Unlawful Combatants Law, first enacted in 2002. These changes aim to justify the detention of thousands of Palestinians from the Gaza Strip as part of emergency regulations implemented during wartime. The amendments were made in three stages, the latest of which took effect in early August and will remain valid until the end of November 2024.
This article examines these amendments, analyzing their legal implications for prisoners detained in Israeli military prisons, such as Sde Teiman, and other facilities, including those managed by the Israel Prison Service. It highlights how the changes have transformed these detention centers into sites of abuse, isolating detainees from the world in what resembles a legal "black hole." Legal oversight has been diminished, International Red Cross visits have been banned, and detainees have faced conditions akin to enforced disappearance. This mistreatment has turned their lives into a living hell, leading to the deaths of dozens, including Dr. Adnan Al-Barsh. Thousands are held without trial until the war's conclusion.
The article delves into the origins of the Unlawful Combatants Law, initially proposed in 2000 under the title "Law for the Detention of Enemy Forces Members Who Do Not Qualify for Prisoner of War Status." It discusses the political, historical, and legal contexts leading to its initial passage in 2002. The article also explores how the Israeli Supreme Court addressed the law's conflict with international humanitarian law, particularly the Third and Fourth Geneva Conventions concerning civilian protection, and the amendments it proposed to harmonize the law with international standards.
International humanitarian law recognizes two categories of individuals during armed conflict: civilians, protected under the Fourth Geneva Convention, and combatants, protected under the Third Geneva Convention. When captured, both groups are guaranteed humane treatment, including notification of detention to their families and eventual release, typically through exchanges or at the end of hostilities.
The term "unlawful combatant" refers to individuals belonging to armed groups who are not recognized as lawful combatants by their adversary. Consequently, they are not covered by the Geneva Conventions. Israel has used this classification to justify the indefinite detention of thousands of Gazans, deeming them a security threat. The term gained prominence during the U.S. "Global War on Terror" under President George W. Bush’s administration.
The law’s foundation lies in an Israeli Supreme Court ruling from April 12, 2000 (Case No. 97/7048), which deemed it impermissible to detain Lebanese individuals solely as bargaining chips to recover missing Israeli soldiers. Following this ruling, the court called for the enactment of new legislation to address such detentions, paving the way for the Unlawful Combatants Law.
Enacted in March 2002 during the Second Intifada, the law allows the indefinite detention of individuals deemed security threats without the protections afforded to prisoners of war. The detainees are held until the conflict's end, with minimal judicial oversight.
Following the October 7, 2023, war declaration, Israel introduced sweeping amendments to the law. The first amendment, effective December 18, 2023, extended detention periods and further restricted detainee rights:
These changes stripped detainees of their basic legal rights, subjecting them to enforced disappearance and leaving them vulnerable to torture and abuse.
The second amendment, effective April 19, 2024, reduced the denial of attorney access to 90 days but failed to restore the original 21-day limit. The third amendment, effective August 1, 2024, introduced further reductions, such as lowering the judicial oversight delay to 45 days (30 days for minors).
Despite these revisions, detainees—especially those from Gaza—remain in dire conditions. Reports from organizations like B’Tselem reveal that detainees are subjected to inhumane treatment, including torture, sexual violence, deprivation of basic needs, and denial of medical care. At least 60 detainees have died due to these abuses since October 2023.
The law has created a third category of individuals who are neither civilians nor lawful combatants, circumventing international conventions. While Israel’s Supreme Court has upheld the law, critics argue it constitutes arbitrary detention and violates detainees’ rights under international law.
The Unlawful Combatants Law, particularly in its amended form, has become a tool for mass detention, abuse, and the denial of justice. Detainees are held indefinitely under conditions that violate international conventions, including the Geneva Conventions and the Convention Against Torture.
This law underscores the urgent need for international scrutiny and accountability to ensure the protection of detainees and the adherence to fundamental human rights standards.
Second Amendment: Published on April 7, 2024, and came into effect on April 19, 2024, lasting until July 31, 2024. The state reduced the maximum duration for prohibiting a detainee from meeting a lawyer from 180 days (under the first amendment) to 90 days but did not restore it to the original 21 days specified in the basic law. These changes may have been influenced by various pressures, including accusations against Israel in the International Criminal Court for committing war crimes and genocide in Gaza, reports of torture in military detention centers, and detainee deaths in custody.
In practice, the second amendment allowed detainees, previously isolated from the world under severe conditions, to meet with lawyers for the first time. However, leaked information and testimonies highlighted the risks detainees faced. Lawyers attempting to visit detainees encountered significant obstacles, effectively hindering such visits. These included:
These barriers meant that meaningful legal visits were effectively delayed by at least another month after the second amendment took effect.
Third Amendment: Published on July 30, 2024, and took effect on August 1, 2024, in preparation for a second hearing on June 11, 2024, regarding petition No. 24/1414. This amendment introduced further reductions in detention periods previously extended. Key changes included:
Before issuing its decision, the court requested explanations regarding several points, particularly the prolonged delay in judicial oversight to 45 days.
At first glance, the reductions introduced by the second and third amendments may seem positive. However, it is essential to remember that the first amendment, implemented during wartime, and even the basic law itself, contained egregious violations of detainees' fundamental rights and legal protections. These measures significantly deviated from the standards of ordinary detention laws and even administrative detention.
State Response: In a June 2024 hearing, the state admitted to detaining approximately 4,000 Palestinians from Gaza by that date, releasing around 1,900 back to Gaza. This confirmed that at least those released were civilians rather than combatants. The state further acknowledged that approximately 2,100 detainees remained classified as "unlawful combatants" and 200 were held under temporary orders without ever appearing before a judge.
Detention Conditions: Torture and Death
Article 10 of the law mandates humane conditions for detainees, ensuring no harm to their health or dignity. However, the reality, particularly since October 7, 2023, starkly contradicts these requirements. Many detainees have been subjected to abuse and torture, leading to the deaths of dozens.
The detention conditions for Gazans in Israeli prisons fail to meet the minimum standards of humane treatment outlined in the 2002 law. They also violate international conventions, including:
Reports indicate that among detainees from Gaza are minors, with 20 held in facilities under the Israel Prison Service as of April 2024. According to figures from Palestinian prisoner advocacy groups, the total number of detainees reached 9,900 by August 1, 2024, including 250 children. These individuals are subjected to inhumane and degrading treatment, often amounting to torture, in direct violation of the Convention Against Torture.
Documented Abuse:
Numerous media outlets, including Israeli and international organizations, have reported on detainees’ experiences, including torture and degrading treatment. Former detainees who returned to Gaza described the abuse they endured. A leaked letter from a doctor working in one of these facilities exposed the reality in Sde Teiman Camp, including incidents of sexual violence and severe mistreatment. Following international outcry, the UN High Commissioner for Human Rights called for an investigation. Despite the gravity of the allegations, implicated personnel were placed under house arrest rather than facing trial.
A report by B’Tselem titled “Welcome to Hell” (August 2024) documented testimonies from 55 Palestinian detainees, including 21 from Gaza. These individuals, most of whom were held without trial, described systematic abuse, including:
The report concluded that over 12 Israeli detention facilities—both civilian and military—had effectively been transformed into torture camps. It confirmed the existence of an official policy of abuse and noted the deaths of over 60 detainees in custody.
Conclusion:
Since the declaration of war on October 7, 2023, Israel has implemented emergency detention measures, arresting over 4,000 Palestinians, mostly civilians, including women and children. These detainees are held under conditions amounting to enforced disappearance, torture, and degrading treatment, with many dying in custody.
The Unlawful Combatants Law and its amendments have enabled systematic human rights abuses. Detainees and their families are entitled to seek justice, expose these violations, and hold perpetrators accountable in international forums. Torture and enforced disappearance are unequivocally prohibited under international law, without exception.