A. and B. v. State of Israel

Court	The Supreme Court of Israel sitting as the Court of Criminal Appeals, Israel
Case number	CrimA 6659/06, CrimA 1757/07, CrimA 8228/07, CrimA 3261/08
Decision title	Judgment
Decision date	11 June 2008
Parties	A B State of Israel
Categories	War crimes
Links	Judgment of the Supreme Court of Israel sitting as the Court of Criminal Appeals, Israel

Summary

Two Palestinians living in Gaza, referred to as A and B, were detained in 2002 and 2003, respectively, due to their purported association with Hezbollah. They brought a complaint at the Israeli District Court stating that their detention was unlawful because the Incarceration of Unlawful Combatants Law of 2002, on which their detention orders were based, was not in accordance with the Basic Laws of Israel and infringed principles of international humanitarian law.

After having their case dismissed by the District Court, the plaintiffs appealed at the Israeli Supreme Court. In its decision, the Supreme Court held that the Incarceration of Unlawful Combatants Law was in conformity with the Basic Laws of Israel. In addition, the Supreme Court held that their detention was lawful because there was a chance that they would reconnect with Hezbollah and they could therefore pose a risk to Israel’s national security.

Procedural history

Israel had placed Gaza residents A and B under administrative detention in 2002 and 2003, respectively, for allegations of being Hezbollah members. The administrative detention of A and B was effected by virtue of the security legislation that was in force in the Gaza Strip during Israel’s military administration in the Gaza strip.

The security legislation was cancelled when the military administration in the Gaza Strip was declared to be over. Therefore, on 20 September 2005, the chief of staff of the Israeli military issued detention orders for A and B under the Internment of Unlawful Combatants Law (Incarceration of Unlawful Combatants Law, 2002).

The plaintiffs brought a complaint claiming that their detention was unconstitutional and that their continuous detention was in violation of international law. On 22 September 2005, a judicial review proceeding began in the Tel-Aviv-Jaffa District Court. On 25 January 2006, the Court upheld the administrative detention orders and dismissed the case. On 14 March 2006, the decision was upheld by the Supreme Court.

On 9 March 2006, periodic judicial review began in the District Court. The Court held that the plaintiffs were members of Hezbollah and that their release was likely to harm state security. In addition, the Court rejected the claim that the Incarceration of Unlawful Combatants Law was unconstitutional.

On 13 February 2007, the District Court gave a decision in a second periodic judicial review. The Court upheld the plaintiffs’ detention orders on the ground that their detention served a ‘preventative goal’.

On 3 September 2007, the District Court upheld the orders in the third periodic review and stated that there was no basis for their cancellation.

On 20 March 2008, the District Court in the fourth periodic review held that there was no new evidence supporting the plaintiffs’ claim. Furthermore, the Court also found that the plaintiffs were closely associated with Hezbollah. Therefore, the Court dismissed the arguments of the plaintiffs and approved their continued detention.

The plaintiffs appealed to the Supreme Court of Israel.

Related developments

A and B were released on 18 August 2009 after they had spent 7.5 years and 6.5 years, respectively, in detention without trial.

Legally relevant facts

The Appellants were two Gaza residents who were detained due to their purported association with Hezbollah. They challenged the constitutionality of Israel’s 2002 Incarceration of Unlawful Combatants Law on the basis that it contravenes the Israeli Basic Law as well as principles of international humanitarian law.

Core legal questions

Is the Incarceration of Unlawful Combatants Law consistent with international humanitarian law?

Is the Incarceration of Unlawful Combatants Law consistent with the Basic Laws of Israel?

Is the violation of the right to personal liberty reasonably commensurate with the public benefit that arises from it in achieving the legislative purpose?

Specific legal rules and provisions

Incarceration of Unlawful Combatants Law, 2002, Israel:

Section 2 - Definitions
Section 3 - Internment of unlawful combatant
Section 5 - Judicial review
Section 6 - Right of internee to meet with lawyer
Section 7 - Presumption
Section 8 - Determination concerning hostilities
Section 9 - Criminal proceedings

Basic Law: Human Dignity and Liberty, 1992, Israel:

Section 1 - Basic Principles
Section 5 - Personal liberty

Geneva Convention IV, 1950:

Article 27 - Treatment I. General observations
Article 41 - Non-repatriated persons IV. Assigned residence. Internment
Article 42 - Non-repatriated persons V. Grounds for internment or assigned residence. Voluntary internment
Article 43 - Non-repatriated persons VI. Procedure
Article 78 - Security measures. Internment and assigned residence. Right of appeal

Court's holding and analysis

The Incarceration of Unlawful Combatants Law was upheld by the Supreme Court of Israel on the grounds that the Law has a ‘proper purpose’ and that it was proportionate.

The Court accepted the argument that international law recognises only two categories – ‘combatants’ and ‘civilians’ – that are subject to the provisions and protections enshrined in Geneva Conventions III and IV. However, the Court ruled that the Incarceration of Unlawful Combatants Law does not contradict these categories, and said that the ‘unlawful combatants’ category addressed by this Law is a sub-category of the ‘civilians’ category (para. 14).

Furthermore, the Supreme Court held that although the violation of the right to personal liberty caused by the Incarceration of Unlawful Combatants Law is a severe violation, it did not constitute a disproportionate infringement and was reasonably commensurate with the public benefit. The Court emphasised that the Law was passed because Israel faced ongoing threats of terrorism, and therefore, the violation of the right to personal liberty could be justified (para. 49).

In addition, the Court held that unlawful combatants might be residents of a foreign country being an enemy state, and who, in addition to this, belong to a terrorist organisation. The Court further ruled that the Incarceration of Unlawful

Combatants Law only applies to foreign parties that endanger Israel’s national security, and noted that ‘unlawful combatants’ may also include inhabitants of the Gaza Strip because Gaza was no longer held under belligerent occupation since the end of Israel’s military rule in September 2005 (para. 49).

Lastly, the Supreme Court held that Israel was not under an obligation to release the detainees when the Israeli military rule in Gaza came to an end, provided it could be demonstrated that the detainees would continue to pose a threat to Israel’s national security (para. 52).