Guantanamo Exported: 'Illegal Combatants' and the Israeli Supreme Court

JURIST Guest Columnist Ron Dudai of the SOAS School of Law at the University of London (UK) says that the dubious US response to 9/11 has given Israel an excuse to engage in its own questionable practices, as reflected by a recent Israeli Supreme Court ruling endorsing the detention of two Palestinians an "illegal combatants"...



When the US Administration announced in January 2002 that the detainees captured in Afghanistan and transferred to Guantanamo will be classified as "Illegal Combatants", the international legal community reacted with surprise: no one was even familiar with the phrase. But in Israel, human rights activists nodded with disbelief. Just the previous year, an Israeli government attempt to pass an "illegal combatants" law had failed. Fulfilling pessimistic expectations, following the American example the Israeli bill was resurrected and passed the parliament successfully in mid 2002. Even then it went unused until last year, when two Palestinians from Gaza were detained as "Illegal Combatants". In March, the Israeli Supreme Court endorsed these detentions [PDF decision text, in Hebrew]. This is not only another sad and alarming tale on how the "war on terror" erodes basic civil liberties principles; it is a powerful illustration of the global interactions and effects of these erosions.

The beginning of the Israeli classification was quite unique. During the 1990s, Israel captured several Lebanese citizens and held them in detention, with the explicit aim of using them as bargaining chips in negotiations with Hezbollah on returning captured Israeli soldiers. After years of deliberations, the Supreme Court ruled that the detainees could not remain in custody solely as hostages without being brought to trial on specific charges. In 2000, the government set out to bypass this ruling by enacting new legislation that would categorize these detainees as "illegal combatants". Whereas international law recognizes only two categories: combatants (who can be held as POWs or prosecuted for war crimes) and civilians (who can be detained for specific grounds), this law was to create a new category. Neither combatants nor civilians, "illegal combatants" are those civilians classified by the Army's Chief of Staff as suspected of "taking part in hostile activity against Israel, directly or indirectly" or "belonging to a force engaged in hostile activity against the State of Israel." A concentrated campaign by Israeli human rights organizations and jurists, as well as pressure from abroad, succeeded then in influencing the Israeli law-makers and the bill has failed to pass parliament. A major trump in the campaign against the bill was that no other country in the world recognized the concept of "illegal combatants". This, of course, soon changed. With talk of "illegal combatants" suddenly coming from Washington, the Israeli government opportunistically revived the law, and this time the legislators abided.

The Lebanese detainees were released shortly thereafter in an exchange deal with Hezbollah. It was not clear, initially, if the law would be used against Palestinians from the Occupied Territories of Gaza and the West Bank. One reason for this doubt was that the Israeli authorities had already been using, in addition to criminal prosecution, the sanction of "administrative detention" against Palestinians. Administrative detention is detention without trial, authorized by order of a military commander rather than judicial decree. Thousands of Palestinians have been held in administrative detention for periods ranging from six months to several years. Indeed, the two Palestinians against whom the law was used last year, were already being held in administrative detention at the time. Yet, in September 2005, The Israeli Chief of Staff signed an order changing their status to Illegal Combatants. They were both declared as being "members of Hezbollah" and "involved in military activities against Israel".

Why is the illegal combatants law utilized? Following the Israeli "disengagement" from Gaza, the military order (relating to this area) that authorized administrative detention was cancelled. The State could still have used the Israeli domestic law on administrative detentions. Yet while the law on administrative detention falls short of fair trial standards, it does contain some checks and balances and allow a narrow role for judicial review. This puts a certain pressure on the security services, especially when detention orders are being renewed again and again, a practice that sometimes tests the patience of the usually happy-to-approve judges. Indeed, the appellants in this case were held in administrative detention for three years, and brought several times for renewal hearings. But now, with a stroke of pen the administrative detainees are transformed into illegal combatants — and once suspected of involvement in the activities of Hezbollah, they are to remain in custody indefinitely (or as long as the Chief of Staff finds that this organization continues to act against Israel). The security services no longer need to worry about individual renewal orders being scrutinized in court. The fact that the suspicion of membership of Hezbollah did not arise in any of the previous hearings reinforces this interpretation.

After the Tel-Aviv District Court approved the September 2005 order, the case of the Palestinian detainees reached Israel's Supreme Court, sitting as High Court of Appeals. In his decision, Justice Rubinstein wrote "indeed, this is not a simple law" — yet he does not seem to harbor any major doubts. Nodding conspicuously toward the US, he pointed out that "the US is also dealing with similar issues, in the al-Qaeda case, and re detainees being held in Guantanamo and elsewhere", and referenced the Hamdi v. Rumsfeld and Rumsfeld v. Padilla cases. Aiming to create a flattering comparison, however, he noted that while in the US the question of judicial review in such matters is still open, in Israel it is unequivocally agreed that judicial review should always take place.

Yet how powerful can this judicial review be? Not only does the Illegal Combatants law create a new category not recognized in international law, it reverses the burden of proof. Once an order is signed by the Chief of Staff, the burden of proof is on the defendant: he has to prove to the court that he is not an enemy combatant. Moreover, he is expected do this when the charge against him is based solely on classified evidence, which he is barred from examining and is therefore unable to challenge. One of the defendants told the court he was arrested in his house, for no reason, and added that if he were exposed to the evidence against him he would be able to respond. But that, of course, did not happen. After the defense lawyers argued their case, they and their clients had to exit the courtroom, leaving the security services' representatives to reveal their secret evidence to the judge. Unsurprisingly, Justice Rubinstein was "convinced" by that evidence.

Although in some recent decisions — the "human shields" case and some of the petitions regarding the West Bank Barrier — the Israeli Supreme Court proved that it is capable of ruling against the government on security-related issues, it seems that in cases like this, where secret evidence is involved, the Court will invariably rule for the State. The Court's record in cases of administrative detentions, where the burden on the state was higher, has almost always been to defer to the security services suspicions and to succumb to their secret evidence. With the lower threshold of the illegal combatants law and its reversed burden of proof, there is not much hope that the Court would ever challenge the army's decisions. There may be formal habeas corpus here, but in practice it has almost no substantial value.

In a true masterpiece of manipulative rhetoric, Rubinstein quoted an earlier decision by the Court regarding administrative detentions, where it was acknowledged that a defendant facing secret evidence is like a man fighting with one of his hands tied behind his back. Yet Rubinstein immediately proceeded to quote from the Court's 1999 decision to outlaw torture, where the Court's president wrote that the State — because of its adherence to the rule of law — has to fight terrorism with one of its hands tied. Rubinstein's attempt to create this artificial balance to legitimize his decision is a case of judicial bad faith if there ever was one. Equating the State's "disadvantage" in not using torture with the defendant's disadvantage in not being able to see the evidence against him is dishonest, aiming to portray equality of arms where clearly none exists.

Those who were involved in attacks against Israeli civilians must be punished. They may be prosecuted, in ordinary Israeli courts, or as is much more often the case, in its military courts. With conviction rates of 90-95 percent in this biased system, opting for military prosecution poses no major risk for the Israeli government. At worst, the Israeli government can use — as it has — administrative detentions. Indeed, international law allows limited use of such preventive detentions, with rigid restrictions and procedural safeguards (which are not fully followed by Israel). These avenues do exist. Current law can and should be used to prosecute, convict and punish those who target civilians, according to established principles of law and due process. The choice to use instead the new concept and procedures of illegal combatants does not serve any real need, apart from the security services' desire to let go of even the limited legal requirements they face. Rubinstein wrote that "this law was enacted in response to a situation which is not unique to our region, especially after the 9/11 events in the US". But in fact, this law did not stem from any new complex situation in international affairs; the more accurate way to read this statement is that the US' dubious response to 9/11 has given Israel an excuse to engage in its own devious practices. Many voiced concerns about the potential global effects of the US measures in its "war on terror" — this case shows that these concerns should not be seen as merely abstract.

It should be noted the question of the legality of the law as such was not dealt with in this decision. It is likely that a general petition regarding the constitutionality of the Illegal Combatants law will soon reach the Supreme Court. Justice Rubinstein, who in his previous position as Israel's Attorney General was involved in drafting the law, has hinted he would excuse himself from such a hearing. Let us hope that some of his colleagues on the bench will be brave enough to refrain from using American measures as an alibi and rule to nullify this law and erase it from Israel's statutes.


Ron Dudai is a research fellow in the School of Law, School of African and Oriental Studies, University of London
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