Two Unlawful Combatants Cases in the Israeli Supreme Court

In its recent decisions concerning two separate cases, the Israeli Supreme Court interpreted and applied the Incarceration of Unlawful Combatants Law 2002 (hereinafter: the Unlawful Combatants Law or the 2002 Law) to detainees captured during Israel's "Operation Cast Lead" in Gaza (December 2008 – January 2009). These decisions are part of a series of recent rulings regarding the Unlawful Combatants Law, its procedures and its implications for both counter-terrorism and human rights law.[1]

In the first case, A.D.A [Administrative Detention Appeal] 2595/09 Dr. Hamdan Abdullah Shehadeh Sofi v. The State of Israel[2]  (hereinafter: Dr. Sofi's case), the appellant was detained on January 15, 2009. In the second case, A.D.A 1510/09 Waal Majed Abdullah Atamaba v. The State of Israel[3]  (hereinafter: Atamaba's case), the appellant was detained on January 5, 2009. Both detainees were captured by IDF forces during "Operation Cast Lead" in Gaza.

On February 23, 2009, Dr. Sofi was brought before Judge Vago of the Beer Sheba District Court in accordance with Section 5(c) of the Unlawful Combatants Law. After examining the material presented before him, Judge Vago determined that the appellant is a senior member of the Hamas and, therefore, falls within the definition of an “unlawful combatant” under Article 2 of the 2002 Law (which defines an unlawful combatant as 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).

On January 15, 2009, Atamaba was brought before Judge Pilpel of the Beer Sheba District Court in accordance with the 2002 Law. On January 19, 2009, after reviewing confidential information provided to him by Israeli security services, Judge Pilpel, determined that Atamaba is one of the leaders of the Democratic Front for the Liberation of Palestine (hereinafter: DFLP), and that he commanded rocket firing operations directed against Israel and stored ammunition in his house. Therefore, he also fell within the definition of an unlawful combatant under the Unlawful Combatant Law.

In Dr. Sofi's case, the appellant presented two main arguments against the decision to detain him — a procedural argument and a substantial one. In the procedural argument that relates to the issue of evidence disclosure, Dr. Sofi argued that the defense should have received all the non-confidential information, which served as the basis for the decision to detain him as an unlawful combatant.  In the substantial argument, Dr. Sofi claimed that he did not qualify as an unlawful combatant since his involvement in Hamas was marginal (according to the main ruling of the Supreme Court on this issue, a small and insignificant contribution to the hostilities against Israel is not enough to designate someone as an unlawful combatant).[4] Moreover, even if Dr. Sofi did qualify as an unlawful combatant, the second condition of the law — that his release would compromise the security of the State of Israel — was not fulfilled.

In Atamaba's case, the appellant claimed that he was not a member of the DFLP and that he was, in fact, a member of the Fatah and worked for the Palestinian Authority. Moreover, the hearing procedure that had been offered to him by the military according to the 2002 Law was allegedly invalid since at the time of the hearing, Israel considered him a member of the Hamas and not of the DFLP. Atamaba claimed that this erroneous classification denied him a proper hearing and rendered invalid the original detention order (issued by Major General Ron-Tal). He also claimed that in the wake of "Operation Cast Lead", tensions in the area had decreased and, therefore, the necessity of his detention should be reconsidered.

Both appeals were rejected by the Supreme Court, which reached the conclusion, based on the information presented to the judges, that the appellants were, in fact, unlawful combatants who posed a threat to the security of the State of Israel.

Justice Rubinstein reviewed the decision of the District Court in the case of Dr. Sofi, using the judicial framework that combines the two main tests that were derived from the 2002 Law and the previous rulings of the Supreme Court on its interpretation. 

The first test is whether the detainee qualifies as an unlawful combatant: a person who either participates in hostile activity against the State of Israel or a member of a force perpetrating hostile acts against the State of Israel.[6] With regard to these two alternatives, Justice Rubinstein quoted the Supreme Court's judgment in the Aiad case, which held that the interpretation of these alternatives must be performed in light of the security purpose of the law and in accordance with constitutional and IHL principles, all of which require the establishment of  danger posed by the individual as the basis for administrative detention. Due to his membership in the Hamas, Dr. Sofi fell under the second alternative. Although Justice Rubinstein accepted that Sofi was not a member of the military branch of the Hamas organization, he held that the links between the civilian and the military branches of that organization were close, and that the political branch was involved in recruiting members for the military branch.

The second test is whether the release of the detainee would compromise the security of the State of Israel. According to Justice Rubinstein, this is the main question raised in Dr. Sofi's case. This is because the burden of proof that an unlawful combatant threatens the security of the State of Israel is greater if the designation of unlawful combatant is determined only by the criterion of membership. Moreover, when the activity in question is civilian in nature, the question of posing a danger must be examined with respect to the specific person in the specific circumstances of time and place.

Still, Justice Rubinstein noted that the threat posed by persons in leadership positions of hostile organizations, such as Hamas, is not less than the danger posed by an active terrorist.[7] Furthermore, the greater the role and the higher the position of a person in such an organization, the more the person embodies the threat emanating from the existence of the organization.[8] It is, therefore, not the civilian activity that is forbidden or that creates the danger posed by the appellant, but rather the inseparable connection between the civilian and military activities of the organization that creates the danger in the present case.[9]

In an additional note, Justice Rubinstein referred to problems associated with detaining unlawful combatants under administrative detention without informing them of the charges against them at the time of detention. In order for a detainee to be able to defend his or her case, the State must provide the detainee with as much information as possible and, when the security conditions allow it,  must apply the least harmful procedures (i.e. initiate criminal proceedings). Still, according to Justice Rubinstein, these problems were somewhat corrected at the initial hearing stage.[10]

In the Aiad case, President Beinisch defined the initial hearing by the detaining authority under the 2002 Law as a preliminary measure intended to avoid mistaking the identity of the detainee. However, according to Justice Rubinstein, another purpose of the hearing is to allow the detainee to face the accusations leveled against him or her (to the extent that security considerations permit it), and even to facilitate the transfer of the matter to the criminal track when appropriate. It should be mentioned that prior to the 2008 amendment, hearings were conducted only after the order had been issued, whereas under the existing version of the 2002 Law, hearings are conducted before detention orders are issued.

Furthermore, according to Article 5(c) of the Unlawful Combatants Law, the Court may invoke two conditions for the release of the detainee. The first is that it deems that the release of the detainee would not harm the security of the State of Israel, and the second is that there are special grounds that justify releasing the detainee. In his decision, Justice Rubinstein mentioned that such judicial review must be conducted at least every six month, and the question of the danger posed by the detainee must not be examined in relation to the circumstances pending at the time of the arrest, but in relation to the current situation of the detainee (and to the security situation in general).

In her judgment, Justice Hayut, held that when applying a severe measure such as administrative detention under the Unlawful Combatants Law, the administrative evidence must be clear and persuasive in order to ascertain that the detainee is, in fact, an unlawful combatant. When performing judicial review under the Law, the Court must examine the evidence and ensure that it is sufficient in quantity and quality to justify the detention (or the continuation of a detention order).

Despite the Supreme Court's instructions in the Aiad case that a detention order must include the grounds for detention and not merely indicate that the detainee is an unlawful combatant, the detention order of Atamaba did not include any elaboration. Nevertheless, Atamaba had the opportunity to present his case when he was confronted with the allegations of his DFLP membership during the judicial review process hearings before the District and the Supreme Court. Hence, the procedural defects were rectified and it was not necessary to invalidate the detention order.

The Unlawful Combatants Law is an important tool in the fight against terrorist organizations that act against the security of Israel. However, its application raises difficult IHL and human rights issues.

While the Supreme Court approved the constitutionality of the 2002 Law in the first cases that were brought before it, such as the Aiad case,  the judges appear inclined to add more safeguard measures to prevent the misuse of the Law in ways that would infringe the human rights of the detainees. Hence, the Court seems to have raised the evidential bar and to put increased emphasis on the fulfillment of  the procedural requirements. Thus, Justice Rubinstein in Dr. Sofi's case and Justice Hayut in Atamaba's case emphasized the importance of the initial hearing procedure and stated that it cannot be used only as a method for identifying the detainees. Instead, the procedure should be used to verify the allegations against the detainees and to allow them the preliminary option to contest them. This seems to be an important safeguard that could help to balance the counter-terrorism objectives of the 2002 Law and the grave human rights issues implicated in its application.

Furthermore, the severe  implications of the 2002 Law that, in effect, authorizes detention for an unlimited period of time, lead the judges to call for the transfer of the cases to ordinary criminal procedure, which has more checks and balances, whenever possible. However, it should be mentioned, that under Article 9(b) of the Unlawful Combatants Law, the security authorities may issue an order for the detention of an unlawful combatant even if criminal proceedings have been initiated against him under the provisions of any criminal law.

In spite of the express consideration for human rights, at the end of the day, the Supreme Court decisions do not appear to be fully balanced — despite the procedural irregularities associated with the Atamaba hearing process and the lack of proof of Dr. Sofi's personal involvement in terrorist activity, the detention orders were affirmed.

[1] The previous case was A.D.A. [Administrative Detention Appeal] 7750/08 Anon. v. State of Israel (hereinafter: Anon case). For a recent discussion regarding the Anon case, see the January 2009 issue of the Terrorism Newsletter.

[2] A.D.A 2595/09 Dr. Hamdan Abdalla Shehadeh Sofi v. The State of Israel, April 1st, 2009 (Hebrew).

[3] A.D.A 1510/09 Waal Majed Abdullah Atamaba v. The State of Israel, April 2nd, 2009 (Hebrew).

[4] CA [Criminal Appeal] 6659/06 Aiad v. State of Israel (hereinafter: Aiad case).

[5] Such as the Aiad case (see supra note 1) and the Anon case (see supra note 4).

[6] However, a status of an unlawful combatant can be granted only to a person who cannot be defined as a prisoner-of-war according to Article 4 of the Third Geneva Convention of 12th August 1949.

[7] CHR [Criminal Hearing Request] 854/07 Abu Daka v. The State of Israel, March 8, 2007 (Hebrew).

[8] CHR 6552/07 Abidat v. The State of Israel.

[9] AA [Administrative Appeal] 1591/08 Military Prosecutor v. Chatzarma.

[10] Article 3(b)(1) of the Unlawful Combatants Law.