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Incarceration of Unlawful Combatants Law, 5762-2002 (2002)

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aliasesIncarceration of Unlawful Combatants Law, Incarceration of Unlawful Combatants Law, 5762-2002

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Summary

Israel’s Incarceration of Unlawful Combatants Law, 5762-2002, dated Jerusalem, 4 March 2002: it regulates the incarceration of unlawful combatants not entitled to prisoner-of-war status, defining an unlawful combatant by direct or indirect participation in hostile acts against the State of Israel, or membership of a force perpetrating such acts, where the Article 4 conditions of the Third Geneva Convention do not apply to him; the Chief of General Staff may order such a person incarcerated where he has reasonable cause to believe the person is an unlawful combatant and his release will harm State security, a membership or participation presumption deems his release harmful while the force’s hostile acts have not ceased unless proved otherwise, and a Minister of Defense certificate on a force’s hostile acts serves as proof unless proved otherwise; review is by a District Court judge within fourteen days and once every six months thereafter, with appeal within thirty days to a single Supreme Court judge, a permissible departure from the laws of evidence including evidence admitted or withheld in the prisoner’s and his representative’s absence, hearings in camera, a lawyer meeting no later than seven days before the first court appearance, and no stated maximum period of incarceration in the file (Incarceration of Unlawful Combatants Law, 5762-2002 (2002), lines 49-129).

What the file is

The English text of the Law as reproduced on a PalQuest (Interactive Encyclopedia of the Palestine Question) page, in one HTML file: 1,359 words in the text copy, lines 1-194, of which lines 1-40 are the site’s Arabic navigation, lines 41-133 are the Law, its Jerusalem and 4 March 2002 heading and its source line, and lines 135-193 are the site’s Arabic document metadata and related-content matter, line 194 being the trailing blank after line 193. The Law’s source line credits Yoram Dinstein and Fania Domb, Israel Yearbook on Human Rights, vol. 32 (2002), The Hague: Brill/Nijhoff, 2003, p. 389-392 (line 133). The site metadata states the original language as Hebrew (line 149-151, in Arabic, translation). The text copy was checked against the original HTML at the Law’s sections 3 and 13; the original reads the same, including the duplicated section number 3 and the spacings recorded in Section by section and Open questions. No Hebrew text of the Law, table or figure appears in the file.

Section by section

  • Section 1, Object (line 49). “This Law is intended to regulate the incarceration of unlawful combatants not entitled to prisoner-of-war status, in a manner conforming with the obligations of the State of Israel under the provisions of international humanitarian law.”
  • Section 2, Definitions (lines 53-59). “the Chief of General Staff” means the Chief of the General Staff of the Israel Defense Forces; “unlawful combatant” means a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, where the conditions prescribed in Article 4 of the Third Geneva Convention of 12th August 1949 with respect to prisoners-of-war and granting prisoner-of-war status in international humanitarian law do not apply to him; “prisoner” means a person incarcerated by virtue of an order issued by the Chief of General Staff pursuant to this Law.
  • Section 3(a)-(b), Incarceration of unlawful combatant (lines 63-65). Where the Chief of General Staff has reasonable cause to believe that a person being held by the State authorities is an unlawful combatant and that his release will harm State security, he may issue an order under his hand directing that such person be incarcerated at a place to be determined (“an incarceration order”); an incarceration order shall include the grounds for incarceration, without prejudicing State security requirements. An incarceration order may be granted in the absence of the person held.
  • Paragraph numbered “3.” again, as printed (line 67). An incarceration order shall be brought to the attention of the prisoner at the earliest possible date and he shall be given the opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel appointed by the Chief of General Staff; the submissions shall be recorded by the officer and brought before the Chief of General Staff; where the Chief of General Staff finds, after reviewing the submissions, that the conditions prescribed in subsection (a) have not been fulfilled, he shall quash the incarceration order. No subsection letter is printed for this paragraph.
  • Section 4, Quashing an incarceration order (line 71). Where the Chief of General Staff is of the opinion, at any time after the grant, that the section 3(a) conditions have not been fulfilled, or there are special grounds justifying the prisoner’s release, he shall order the quashing of the incarceration order.
  • Section 5, Judicial review (lines 75-85). (a) A prisoner shall be brought before a District Court judge no later than fourteen days after the granting of the incarceration order; where the judge finds the section 3(a) conditions have not been fulfilled he shall quash the order. (b) Where the prisoner is not brought before the District Court and a hearing has not commenced within fourteen days, the prisoner shall be released, unless there exists another ground for his detention under any law. (c) Once every six months from the issue of an order under section 3(a) the prisoner shall be brought before a District Court judge; where the Court finds his release will not harm State security or there are special grounds justifying release, it shall quash the order. (d) A District Court decision is subject to appeal within thirty days to the Supreme Court, heard by a single judge, which shall have all the District Court’s powers under this Law. (e) Departure from the laws of evidence is permissible, for reasons to be recorded; the court may admit evidence even in the absence of the prisoner or his legal representative, or not disclose it to them, if convinced disclosure is likely to harm State security or public security; this does not derogate from any right not to give evidence under Chapter Three of the Evidence Ordinance [New Version], 5731-1971. (f) Hearings are in camera, unless the court provides otherwise.
  • Section 6, Right of prisoner to meet with lawyer (lines 89-93). (a) The prisoner may meet with a lawyer at the earliest possible date on which such a meeting may be held without harming State security requirements, but no later than seven days prior to his being brought before a District Court judge under section 5(a). (b) The Minister of Justice may, by order, confine the right of representation in proceedings under this Law to a person authorized to act as defence counsel in the military courts under an unrestricted authorization, pursuant to section 318(c) of the Military Justice Law, printed “5715- 1955” with a space after the hyphen, as printed.
  • Section 7, Presumption (line 97). A member of a force perpetrating hostile acts against the State of Israel, or a person who has participated in hostile acts of such a force, either directly or indirectly, shall be deemed to be a person whose release would harm State security as long as the hostile acts of such force have not yet ceased, unless proved otherwise.
  • Section 8, Determination regarding hostile acts (line 101). A determination of the Minister of Defense, by a certificate under his hand, that a particular force is perpetrating hostile acts against the State of Israel or that such hostile acts have ceased or have not yet ceased, shall serve as proof in any legal proceedings, unless proved otherwise.
  • Section 9, Criminal proceedings (lines 105-107). (a) Criminal proceedings may be initiated against an unlawful combatant under any law. (b) The Chief of General Staff may make an order for the detention of an unlawful combatant under section 3 even if criminal proceedings have been initiated against him.
  • Section 10, Conditions of incarceration (lines 111-113). (a) A prisoner shall be held under proper conditions which shall not impair his health or dignity. (b) The conditions shall be prescribed by the Minister of Defense by regulations.
  • Section 11, Vesting of powers (line 117). The Chief of General Staff may delegate his powers under this Law to any officer of the rank of major-general, as he shall determine.
  • Section 12, Transitional provisions (lines 121-123). (a) This Law also applies to an unlawful combatant held by the State authorities on the day of its commencement. (b) As long as regulations are not enacted pursuant to section 10(b), the Emergency Powers (Detention) (Conditions of Internment under Administrative Detention) Regulations, 5741-1981 shall apply.
  • Section 13, Implementation and Regulations (lines 127-129). (a) The Minister of Defense is charged with implementation. (b) The Minister of Justice may enact rules of court for proceedings pursuant to this Law — printed “(b)The” with no space, as printed.
  • Source line and site metadata (lines 133-193). Source: Dinstein and Domb, Israel Yearbook on Human Rights, vol. 32 (2002), Brill/Nijhoff, 2003, p. 389-392. The site’s Arabic metadata gives the date as 4 March 2002, the place as Jerusalem, the original language as Hebrew, and a related event: the Knesset enacts the Incarceration of Unlawful Combatants Law, in 2002, tagged legal and punitive procedure.

Key passages

  • “regulate the incarceration of unlawful combatants not entitled to prisoner-of-war status” (section 1, line 49)
  • “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” (section 7, line 97)
  • “shall serve as proof in any legal proceedings, unless proved otherwise” (section 8, on a Minister of Defense certificate, line 101)
  • “A prisoner shall be held under proper conditions which shall not impair his health or dignity” (section 10(a), line 111)

Evidence the work relies on

A statute, not an evidentiary work. Its internal authorities are Article 4 of the Third Geneva Convention of 12th August 1949 (section 2), Chapter Three of the Evidence Ordinance [New Version], 5731-1971 (section 5(e)), section 318(c) of the Military Justice Law, 5715-1955 (section 6(b)), and the Emergency Powers (Detention) (Conditions of Internment under Administrative Detention) Regulations, 5741-1981 (section 12(b)). None of those provisions’ texts is reproduced in the file. The file’s own source line credits Dinstein and Domb, Israel Yearbook on Human Rights, vol. 32 (2002), p. 389-392.

Analysis

Read on its own terms, this Law creates a detention track outside criminal proceedings and outside prisoner-of-war status: the order is made by the Chief of General Staff on reasonable cause to believe both limbs of section 3(a), may be granted in the person’s absence, and is then reviewed by a civilian District Court within fourteen days and every six months, with no maximum cumulative period stated in the file and with quashing at review turning, after the first review, on whether release will not harm State security or special grounds exist. Its evidentiary structure is stated in the text itself: membership or participation raises the section 7 presumption that release would harm State security for as long as the force’s hostile acts have not ceased, a ministerial certificate under section 8 serves as proof of a force’s hostile acts or their cessation, and section 5(e) permits departure from the laws of evidence and the admission or non-disclosure of evidence in the prisoner’s and his representative’s absence. The protections the text does state are the fourteen-day and six-month court appearances, the release rule in section 5(b) where no appearance or hearing occurs in fourteen days and no other detention ground exists, the submissions procedure before a lieutenant-colonel or above, the lawyer meeting no later than seven days before the first court appearance, appeal to the Supreme Court, and the section 10(a) condition that incarceration not impair health or dignity. The file gives no figures for use of the Law, no case and no amendment text.

People, organizations, places and events

Incarceration of Unlawful Combatants Law, 5762-2002, Knesset, Israel Defense Forces, Israeli Supreme Court, Israel, City of Jerusalem

Concepts

Administrative Detention

How it relates to other sources

This is the primary text of the Law Palestine: The Legitimacy of Hope invokes for Mahmoud Sarsak: Falk says this Law offers a detained person even less protection than Administrative Detention (PDF p.128, recorded on Administrative Detention). On this file’s text, the comparison rests on provisions Falk does not set out: the section 7 presumption, the section 8 certificate as proof, the section 5(e) evidence departure and non-disclosure, and the absence of any stated maximum period, against the fourteen-day first review and six-month periodic review the text does provide. The Law’s transitional rule in section 12(b) borrows the 1981 administrative-detention internment-conditions regulations until its own regulations are made, a direct textual link between the two regimes. No other ingested source in the wiki gives this Law’s sections.

Open questions

  • The paragraph after section 3(b) is numbered “3.” again, with no subsection letter printed (line 67), in the original HTML as in the text copy; whether the paragraph is section 3(c) in the official text is outside this file, and it is recorded as printed, not renumbered.
  • Section 6(b) prints the Military Justice Law year as “5715- 1955” with a space after the hyphen, and section 13(b) prints “(b)The” with no space; both are recorded as printed.
  • The file states no commencement date, no passage or publication data and no signatories, beyond the heading “Jerusalem, 4 March 2002” and the site metadata giving that date for the Knesset’s enactment; the Law’s formal passage date cannot be separated from the document date on this file alone.
  • The file states no maximum period of incarceration and no number of renewals; whether a limit exists elsewhere is outside this file.

Coverage

lines 1-194 of 194, read in full.

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