“Preventing detainees from meeting their attorneys for long periods of time and not allowing judicial review of detention orders for 28 days place detainees in great danger, as meeting with attorneys and appearing before a court are two important means of protecting them against torture and arbitrary decisions by the authorities.”
On 20 July 2008, Adalah sent a letter to the Chairperson of the Knesset’s Foreign Affairs and Defense Committee demanding that proposed amendments to the Detention of Unlawful Combatants Law – 2002 not be brought to a vote as they violate Israeli constitutional law and international law. The committee is due to vote on the amendments shortly in preparation for their second reading in the Knesset. The bill provides for the indefinite administrative detention of "foreign" nationals, in particular residents of Gaza and Hizbullah fighters.
In the letter, Adalah Attorney Abeer Baker argued that the proposed amendments violate the rights of detainees, defined in the law as “unlawful combatants”. Adalah contended that the objective of the amendments is to step up the application of the law and to detain as great a number of individuals as possible whom it categorizes as “unlawful combatants”. To date, Israel has not made significant use of the existing law.
The Detention of Unlawful Combatants Law - 2002 is arbitrary even without the new amendments. The dangers of the existing law include its vague definition of “unlawful combatants”; its allowance of the use secret evidence and evidence taking in the absence of the detainee; and its authorization to detain individuals for unspecified periods of time or until a time that the hostilities against Israel have come to an end. The law enables Israel to continue to hold individual detainees for indefinite periods, thereby transforming them into hostages until a settlement is reached with these hostile entities. As Adalah argued, holding detainees as hostages in is breach of Articles 3, 34 and 147 of the Fourth Geneva Convention, which together with other international laws absolutely prohibit hostage-taking.
In its current form, the law allows for the detention of an individual for a period without judicial oversight of the detention procedures for a period of 14 days. If the detention order is approved by a court, the individual can be administratively detained for an indefinite period of time, during which the detention is subject to judicial review by the court only once every six months. The current law also authorizes the state to prevent the detainee from meeting with an attorney for a period of seven days from the moment of detention. Further, the authorities are allowed to use this law to continue to detain persons who have already served their criminal sentences to prevent them from returning to the field of combat.
The proposed amendments make the violation of the basic human rights of detainees even more severe. For example, they authorize an army officer rather than to Chief of Staff to issue temporary detention orders for the detainees' incommunicado detention; and they allow for the period during which the detainee is denied access to legal counsel to be extended from seven to twelve days, and for up to 21 days with the approval of the Attorney General and a district court.
A major change envisioned by the new amendments is that it proposes the establishment of a military court of review and a military court of appeals to handle all procedures relating to “unlawful combatants” in periods of large-scale military operations between Israel and organizations to which “unlawful combatants” belong. A ministerial committee would be responsible for proclaiming the occurrence of such military operations, and the proclamation would be valid for an extendable period of three months. The ministerial committee’s proclamation of the occurrence of large-scale military operations would allow the detainee to be held for 28 days – double the amount of time than under the current law – before being brought before a court to review the detention order.
To date, Israel has detained tens of people under the law, including the four Hizbullah fighters whom it captured during the Second Lebanon War and released during the recent prisoners exchange agreement. The clear goal behind the proposed amendments is to support the increased use of this arbitrary law and to raise the number of hostages in Israeli captivity, and in particular at the current time residents of Gaza.