The Internment of Unlawful Combatants Law is also problematic in principle.
The Law was enacted to bypass the Supreme Court's decision, given in 2000, that the state is not allowed to hold Lebanese citizens in administrative detention as “bargaining chips” for the return of Israeli captives, when the detainees presented no danger. Among the detainees were Mustafa Dirani and Sheikh ‘Abd al-Karim ‘Obeid. To enable their continued detention, the Knesset enacted, in 2002, the Internment of Unlawful Combatants Law.
The statute regulates internment of civilians who carry out hostilities against Israel and are not entitled under international humanitarian law to prisoner-of-war status. The Law defines an unlawful combatant as a person who has taken part in hostilities against the State of Israel, directly or indirectly, or who is a member of a force carrying out hostilities against Israel. Although such persons may be detained under the Emergency Powers Law, and if they are residents of the West Bank, under the Administrative Detention Order, the state argues that those pieces of legislation are intended for different purposes, and, therefore, enactment of the Law is justified.
Israel's High Court of Justice held that internment under the Law is a form of administrative detention, and that its use is subject to the restrictions imposed in the case of administrative detention under other legislation. The justices held that persons held under the Law are civilians who are entitled to the protections given to civilians in the Fourth Geneva Convention. For example, the court held that, to intern a person under the Law, the state must prove that he personally poses a danger.
However, the Law contains two legal presumptions that effectively nullify the requirement of individual danger. The court has so far refrained from discussing their constitutionality.
- The first presumption is that the release of an unlawful combatant will harm state security. In the wording of the Law:
With regard to this law, a person who is a member of a force that carries out hostilities against the State of Israel or who took part in the hostilities of such a force, whether directly or indirectly, shall be regarded as someone whose release will harm state security as long as the hostilities of that force against the State of Israel have not ended, as long as the contrary has not been proved.
- The second presumption relates to the existence of hostilities:
The determination of the minister of defense, in a certificate signed by him, that a certain force is carrying out hostilities against the State of Israel or that the hostilities of that force against the State of Israel have come to an end or have not yet come to an end shall serve as evidence in any legal proceeding, unless the contrary is proved.
These presumptions release the state from presenting evidence justifying continuation of the detention and enables internment for an unlimited period of time. The first presumption places the burden of proof on the internee to show that he does not endanger state security, contrary to the fundamental principle that a person is innocent until proved otherwise. After the District Court - which is charged with conducting the judicial review under the Law - decides that a person is an unlawful combatant, the judicial system is no longer charged with making this determination, since, under the second presumption, the point of departure for the discussion is that of the minister of defense holds that the hostilities of the force to which the person belongs continue, his release will harm state security. The two presumptions place the burden of proof on the detainee in matters that can never be refuted, with the vast majority of the material against the person being privileged, giving him no opportunity to examine the evidence against him.
The Law is currently used to detain without trial Palestinians from the Gaza Strip. In the past, Israel used the Law to detain Lebanese citizens. Although the state has made limited use of the Law, it enables the state to conduct mass arrests, holding the detainees for an unlimited period of time, without effective judicial review. In light of the presumptions specified in the Law, the protections afforded by the Law to internees are even less than the few provided to detainees under the Administrative Detention Order applying in the West Bank.
The Law does not comport with international law, is unconstitutional, and is, in any event, unnecessary, since there are other statutory frameworks under which the persons to which the Law relates can be held in custody, and which infringe their human rights to a lesser extent. B'Tselem's position is that the Law should be repealed.