Amar Hamad v. The State of Israel: A.D.A [Administrative Detention Appeal] 2705/09

In a recent decision concerning the detention of a Gaza resident under the Incarceration of Unlawful Combatants Law 2002, the Israel Supreme Court decided to uphold the detention due to the affiliation of the detainee with the Hamas terrorist organization. The detainee in question was captured during "Operation Cast Lead," and was initially held for three weeks under criminal procedures; only thereafter, he was detained under the Unlawful Combatant Law.

In this article, we address this decision as part of our ongoing coverage of Unlawful Combatants Law, its procedures and its implications for both counter-terrorism and human rights law.[1]

Amar Hamad was captured by the IDF on January 5, 2009 in the course of "Operation Cast Lead." During the first few weeks, he was interrogated as a criminal suspect and his detention was prolonged by the Magistrate Court in Beer-Sheba. Throughout this period, he was denied access to his lawyer. On January 29, 2009, Amar Hamad was detained for 96 hours in accordance with Article 3(a) of the Incarceration of Unlawful Combatants Law 2002 (hereinafter: the Unlawful Combatants Law or the 2002 Law).

During an administrative hearing on February 1, 2009, Amar Hamad stated that he is not a member of any organization that conducts terrorist operations against Israel. Nevertheless, following the hearing, he was detained, under Article 3(b)(1) of the Unlawful Combatants Law since there were reasonable grounds to believe that Hamad is an unlawful combatant and his release would compromise the security of the State of Israel.

On February 8, 2009, the detainee was brought before Judge Revital Yafa-Katz of the Beer Sheba District Court for judicial review in accordance with Section 5(c) of the Unlawful Combatants Law. On February 24, 2009, after examining the confidential material presented to her, Judge Yafa-Katz decided that the State presented clear and convincing evidence to substantiate that Amar Hamad was an active member of the Hamas terrorist organization, and that he had provided support to other members of the organization in their actions against the IDF. Judge Yafa-Katz emphasized that the decision was not based on the detainee's previous affiliation with the "Popular Front for the Liberation of Palestine" (PFLP), but only on his current affiliation with Hamas.

An appeal against that decision was submitted to the Supreme Court and heard by a single justice. The decision on the appeal was rendered on May 10, 2009.

The appellant claimed that although he had previously had some connections with the PFLP, these relations ended  in the 1990s, and he currently has no contact with the Hamas organization. Furthermore, Hamad claimed that there was no reason to change his status from a criminal suspect to an unlawful combatant.

The State responded to these claims by affirming that as an active member of the Hamas terrorist organization, Amar Hamad falls under the definition of an unlawful combatant according to the  2002 Law. Moreover, although the criminal investigation conducted against him did not produce sufficient evidence to prosecute him under criminal charges, the classified evidentiary material that the State possesses does constitute reasonable cause to detain Amar Hamad under the Unlawful Combatants Law.

Justice Meltzer noted that according to Article 2 of the 2002 Law, an unlawful combatant is a person who has participated either directly or indirectly in hostile acts against the State of Israel, where the conditions of the international humanitarian law regarding prisoners-of-war do not apply to him. In previous Supreme Court rulings, it was determined that the interpretation of that definition must be undertaken in light of the security purpose of the law and in accordance with constitutional and IHL principles, which all require establishing that the individual poses a threat of danger as the basis for administrative detention.[2]

Furthermore, both the confidential evidence and the open evidence against him must reveal the participation of the appellant in specific activities conducted by the Hamas organization against Israel. Therefore, Justice Meltzer decided to reject the appeal, and held that Amar Hamad is an unlawful combatant according to the Unlawful Combatants Law.

The decision in Hamad is in itself hardly remarkable. Once again, judicial review has confirmed the position of the security authorities on the need to classify Palestinian militants as unlawful combatants and to authorize their detention. Still, some of the developments in the case illustrate the  implementation of previous rulings in unlawful combatants cases[3] whereby the Supreme Court determined that the State must use the least harmful procedure possible, and must provide the detainee with as much information as possible (under the security constraints) in order to be able to properly defend his case.

After Hamad was captured, the State initiated a criminal investigation, which offers better judicial review mechanisms as well as a higher standard of proof and, therefore, constitutes the least harmful procedure under the circumstances. Only after reaching the conclusion that the prosecution would not be able to sustain criminal charges against him, the State decided to proceed with the more harmful procedure of administrative detention according to the Unlawful Combatants Law.

Furthermore, during judicial review proceedings before the Court, the detainee was confronted both with a "cleared" version of the secret evidence against him and was allowed to cross-interrogate a General Security Services' representative. This suggests that the detainee was provided with information that made it possible for him to defend himself, at least to some degree.

[1] See further discussion of this decision in the first and fourth issues of the Terrorism and Democracy Newsletter.

[2] Cr.A [Criminal Appeal] 6659/06 Aiad v. The State of Israel, 11.6.08; A.D.A 2595/09 Sofi v. The State of Israel, 1.4.09; A.D.A 1510/09 Atamna v. The State of Israel, 2.4.09. See a discussion on the latter two decisions in the April 2009 issue of the Terrorism and Democracy Newsletter.

[3] Id.