An Unlawful Combatant Case : A.D.A [Administrative Detention Appeal] 6434/09 Anon v. State of Israel

In a recent decision, delivered on 18 August 2009, the Israeli Supreme Court approved the administrative detention of a Palestinian from Gaza under the Incarceration of Unlawful Combatants Law 2002 [1]  (hereinafter: “the Unlawful Combatants Law” or the "2002 Law”). The detention order was issued following the completion of a criminal sentence of 5.5 years of imprisonment.
This decision is part of a series of rulings issued by Israeli courts regarding the Unlawful Combatants Law, its procedures, and its implications for both counter-terrorism and human rights law. [2]

On 14 May 2009, the appellant, a Palestinian from Gaza,[3]  completed a 5.5 year prison term that he was sentenced to serve by a military court for security offenses.[4]  On the day of his release, the appellant was notified of the State’s decision to continue his detention under the Unlawful Combatants Law, and was given a hearing to present his case. Later that day, after reviewing the appellant's arguments, as well as both the intelligence information and his criminal record, Major-General (ret.) Yiftah Ron-Tal issued an order to detain him as an unlawful combatant whose release would endanger the security of the State.

On 4 June 2009, the appellant was brought before the District Court for judicial review in accordance with article 5 of the Unlawful Combatants Law.[5]  During this hearing,[6]  the appellant claimed that his detention was extended for the improper purpose of serving as a "bargaining chip" in order to facilitate the release of Corporal Gilad Shalit, who is being held by Hamas in Gaza. Moreover, while detentions under the 2002 Law must be based on a current security risk posed by an individual, in the present case, having been incarcerated in an Israeli jail for 5.5 years, the appellant cannot constitute such a risk.   Upon reviewing the claims of both parties, as well as confidential evidence, which was presented ex-parte, a Jerusalem District Court Judge, Judge Joseph Shapira, determined that the sentencing of the appellant for security offenses provides sufficient grounds to also identify him an unlawful combatant whose release would endanger the security of the State under the terms of the 2002 Law. Therefore, the detention order was approved. However, since this was the first judicial review conducted after the issuing of the order, Judge Shapira decided to shorten the time period before the next judicial review from six to four months.

In his appeal to the Supreme Court, the appellant claimed that he is no longer a member of the Hamas terrorist organization and that after more than six years, the technological information that he had obtained prior to his arrest is no longer relevant today. Moreover, the appellant claimed that the District Court had ignored the fact that the plea bargain (upon which his criminal sentence was based) was arranged with the understanding that after serving 5.5 years in prison, he would be released.

As part of its arguments, the State asked to clarify that the enforcement of administrative detention under the Unlawful Combatant Law after a criminal sentence has been served is very rare; there were only five cases like this pending at the time. Moreover, detention under the 2002 Law was also based on information that was not part of the criminal case and, therefore, the detention order imposed on the appellant was not intended to be additional punishment, nor was there an intention to use him as a "bargaining chip."

Supreme Court Justice Edna Arbel’s ruling begins with an overview of administrative detention under the Unlawful Combatants Law. She notes that the Supreme Court has already held that the aim of the Unlawful Combatants Law is "to prevent a person, who represents a threat to the security of the State because of his or her activity or his or her membership in a terrorist organization, from returning to the cycle of hostilities." [7]

According to Justice Arbel, there are three conditions that must be fulfilled to issue a detention order pursuant to the 2002 Law. The first is a preliminary condition, which excludes those who qualify for Prisoner-of-War status under article 4 of the Third Geneva Convention. The second condition is that the person whose detention is sought falls within the definition of an unlawful combatant – "a person who takes part in hostile activity against the State of Israel, whether directly or indirectly, or belongs to a force engaged in hostile activity against the State of Israel." Justice Arbel emphasized that the State must provide clear and persuasive administrative evidence in order to prove that the person that it seeks to detain conforms to one of the two established definitions of “unlawful combatant.” The third and last condition is whether or not the release of the detainee would compromise the security of the State of Israel. The Unlawful Combatant Law specifies two presumptions about endangerment – belonging to a force engaged in hostile activity against the State of Israel, or taking part in hostile activity against the State of Israel. The detainee is entitled to rebut these presumptions of risk.[8]

Justice Arbel went on to opine that the difficulty of approving detention orders under the 2002 Law is the fact that a definite termination date is not required. Indeed, the Unlawful Combatant Law only specifies that the period of detention cannot exceed the cessation of the hostile acts against Israel. However, given the history of Israel’s counter-terrorism struggle, the limits of detention seem very vague and detention periods under the Unlawful Combatants Law could, in theory, extend for very long periods of time. In order to balance security requirements with the detainee's right to freedom, the 2002 Law established mandatory periodic judicial review.

With regard to the case of the appellant, Justice Arbel stated that after a thorough examination of the claims of both sides and of the confidential evidence, which was presented to her ex-parte, the appeal should be rejected. The appellant took part in hostile activity against the State of Israel and his release would endanger its security. Justice Arbel referred to the fact that the majority of the material against the appellant presented in this case dated to the time before the criminal procedure, but said that the State also presented material that had been gathered during the appellant's incarceration. Moreover, even though the new material alone did not suffice to justify administrative detention, when combined with the older material and given the current situation in the Gaza Strip, there were sufficient information and grounds to support the detention.

Justice Arbel also addressed the fact that the use of detention according to the Unlawful Combatants Law against persons who had served criminal sentences is very rare. Still, the Supreme Court has already ruled that the fact that a person served his or her sentence does not mean that he or she no longer poses a danger to the State. However, in such cases the security considerations proved by the State should be more conclusive.[9]

This case presents us with an interesting situation – the detention of a person under the 2002 Law, who has served a criminal sentence, is based primarily on the same information upon which the criminal sentence was based. According to the State, this is a unique situation and at the time, there were only five other detainees in a similar situation. However, this information may be viewed in a different light when compared with a report published by B'tzelem (Human Rights NGO),[10]  according to which there are currently only nine people in detention under the Unlawful Combatants Law. In other words, the 2002 Law appears to be applied mostly to convicted individuals.

Much like in previous Unlawful Combatant cases, the main basis of the courts’ approval of detention under the Unlawful Combatants Law is the security services’ assessment of the danger posed by the detainee to the State's security. The problem with this method is that it is almost impossible for the detainee to challenge this information, because it is usually confidential in nature and presented ex-parte to the judges (with the agreement and permission of the defense).

Moreover, one of the main difficulties raised by this case is the fact that the appellant's original criminal sentence had been based on his own admission, which was (at least to some extent) part of a plea bargain. Such a plea bargain is usually based on the fact that the State's representatives have agreed that 5.5 years of imprisonment is an appropriate penalty for the appellant’s criminal actions. Arguably, the move to invoke the 2002 Law violates the spirit, if not the terms, of that agreement (since most of the material used against the appellant is dated).

1. www.justice.gov.il/NR/rdonlyres/7E86D098-0463-4F37-A38D-8AEBE770BDE6/0/IncarcerationLawedited140302.doc
   
   
2. For a previous discussion of the Unlawful Combatants Law, see the first and fourth issues of the IDI Terrorism and Democracy Newsletter.
   
   
3. The appellant's name does not appear in the decision.
   
   
4. The appellant was convicted based on his own confession that he is a member of Hamas and an activist who attempted to act against the security of Israel.
   
   
5. Article 5 of the Unlawful Combatants Law states that a detainee must be brought before a District Court judge no later than fourteen days after the incarceration order is issued. In this case, the appellant's hearing was scheduled for 26 May 2009 (within the 14 day limit), but upon the request of his lawyer, the hearing was postponed to 4 June 2009.
   
   
6. D. R. [Different Requests] (Jerusalem) 8734/09 State of Israel v. Tarak Uni Isa Isuy, 30 June 2009.
   
   
7. C.A [Criminal Appeal] 6659/06 A. v. State of Israel, 11 June 2008, paragraph 6.
   
   
8. The legality of these presumptions has yet to be examined by the Supreme Court since, in practice, the State always presents solid evidence of the danger personally posed by the detainee.
   
   
9. C.A [Criminal Appeal] 6659/06 A. v. State of Israel, 11 June 2008, paragraph 47.
   
   
10. B'tzelem and Hamoked, "Without Trial – Administrative Detention of Palestinians by Israel and Interment of Unlawful Combatants Law."