An Israeli law passed in 2002. It allows individuals suspected of being involved in “hostile acts” against Israel, or of being members of a force committing “hostile acts” against Israel, to be arrested, detained indefinitely without indictment, and tried without presenting evidence, on the pretext that the security services have a secret file incriminating the detainee.
Since 2005, the Israeli occupation has applied the law to Palestinian detainees from the Gaza Strip, and they are stripped under the law of the rights to judicial review, due process, and a fair trial.
Following the Israeli aggression on Gaza, which began in October 2023, the occupation authorities issued a decision stating that all detainees from the Gaza Strip would be considered “illegal combatants” and that they would be detained at the “Sde Teiman” base.
Accordingly, thousands of Gazans, most of them civilians, including the elderly, women and minors, were arrested and detained in Israeli military facilities, where they faced all forms of torture, abuse and humiliation.
Motives and requirements for enacting the law
In 2000, the Israeli Supreme Court issued a decision preventing the state from continuing to place individuals under administrative detention, if they did not pose – in their personal capacity – a threat to Israel's security. Pursuant to the decision, the occupation released 13 Lebanese who were being held by it, and kept two Lebanese citizens, Mustafa al-Dirani and Abdul Karim Ubaid, in custody.
In order to keep the two prisoners as a bargaining chip, to obtain information about Israeli soldiers who went missing during the battles of the 1980s in Lebanon, the Israeli authorities issued a new law, called the “Unlawful Combatants Law,” which was approved by the Knesset in March 2002.
The law defined an “unlawful combatant” as a person “who has participated in hostilities against Israel directly or indirectly, or is a member of a force carrying out hostilities against Israel.” It provided for the arrest of individuals who carry out hostilities against Israel.
Under the law, the Israeli authorities must bring the detainee before a local civil court within 14 days of the arrest, and the court must accept the authorities' claim that a group constitutes a “hostile” force and that the detainee's affiliation with it makes his release harmful to state security.
If the detention order is approved, the detainee is presented for judicial review every 6 months, and he has the right to appeal the decision of the local court, and to request an appeal before the Supreme Court, where these cases are subject to consideration by a single judge, under the same conditions as those adopted by the local court.
In July 2008, the law was amended to allow the Chief of Staff, or any officer holding the rank of Major General or above, to order the indefinite detention of a person if there is “reasonable cause” to consider him an “unlawful combatant” whose release would harm state security.
The law enables the Chief of Staff to cancel the detention order if he believes that the reasons for the detention no longer exist, or if new developments arise that justify the release of the detainee.
In the same year, the Supreme Court ruled that detention under the “Unlawful Combatant” Law was considered a form of administrative detention and was subject to the same restrictions as administrative detention.
Since the law was passed in 2002, 15 Lebanese citizens have been arrested, including 11 who were arrested during the Israeli war on Lebanon in 2006. All Lebanese detainees have been released, the last of whom was released in 2008.
Detention of civilians
Since the “disengagement” from the Gaza Strip in 2005, the Israeli authorities have used the “unlawful combatant” law to detain Palestinians from Gaza who the occupation forces claim pose a threat to Israeli national security. During the Israeli war on Gaza at the end of 2008 and the beginning of the following year, all Israeli arrests were carried out in accordance with this law.
The Israeli army was given broad powers under the law to detain anyone from the Strip on mere suspicion, without having to provide evidence to support the allegations.
The law provided the Israeli army with legal cover to imprison civilians, depriving them of the basic guarantees of international law, related to the necessity of presenting evidence and ensuring a fair trial. The law places the burden of proving that the detainee does not pose a threat on him, instead of the Israeli authorities bearing the responsibility of proving the charge by presenting evidence.
Israeli courts rely on Israeli intelligence reports that they say are “secret.” Accordingly, judges are not required to present evidence in deliberations, under the pretext that the evidence is confidential and cannot be disclosed for “security” reasons. Neither the detainee’s lawyer nor the detainee himself can view it, and the confidentiality of the evidence prevents the detainee from being able to defend himself and challenge the allegations.
Amending the law after the “Al-Aqsa Flood”
Following the Battle of the Flood of Al-Aqsa launched by the Palestinian resistance against the settlements of the Gaza Envelope on October 7, 2023, and the subsequent Israeli aggression on Gaza, Israeli Defense Minister Yoav Galant issued a decision on the 10th of the same month to consider all detainees from the Gaza Strip as “illegal combatants” and to detain them in the “Sde Teiman” camp.
At the same time, a temporary amendment was made to the “unlawful combatant” law, which was set for a period of 10 weeks, allowing the detention of individuals without an arrest warrant to be extended to 21 days instead of 7 days, increasing the maximum period for legal review from 14 days to 30 days, and allowing the denial of contact with the detainee’s lawyer for a period of 45 days instead of 7 days.
In December of the same year, the Israeli authorities approved a new temporary amendment to the law, allowing army officers with the rank of lieutenant colonel or head of the investigation team in the General Security Service to exercise the power of arrest that previously required higher-ranking officers.
The law also extends the period during which the Israeli army is allowed to detain Palestinians without an official arrest warrant to 45 days.
The decision also increased the maximum period of detention before appearing before a court for judicial review to 75 days, and extended the period during which a detainee is denied access to his lawyer to 6 months, which was later reduced to 3 months.
In April 2024, the occupation authorities worked to extend the amendment for another 4 months, and on July 28 of the same year, the Knesset approved extending the amendment until the end of November.
human rights violation
Under the law, the Israeli military initially detained individuals it alleged were resistance fighters in the October 7 attack on Israel. Later, the military expanded the scope of the law and detained Palestinian civilians in Gaza en masse.
According to data from Amnesty International, the Israeli authorities arrested at least 105 Palestinians from the Gaza Strip during the October attack.
The organization reported that Israel later arrested thousands of Palestinians from Gaza who had entry permits to Israel, most of them workers, and detained them for at least 3 weeks in two military bases inside Israel and the West Bank. Although many of them were released, there is no clear data on the number of detainees who remained in detention.
According to reports by the Human Rights Watch (HaMoked), 1,402 Palestinians were arrested under the “Unlawful Combatants Law” as of early July 2024, and this number does not include those detained during the unofficial period, which extends to 45 days.
The occupation forces arrested Palestinians from displacement centers, schools, homes, hospitals and at checkpoints from different parts of the Strip, and then sent them into Israel, for periods of up to 140 days.
The arrests included many civilians, including minors, women and the elderly, as well as doctors, human rights defenders, UN employees and journalists. The occupation arrested mothers while they were crossing the so-called “safe passage” from northern Gaza to the south, separating them from their infants.
Gazan detainees are held in military facilities, including: the Sde Teiman base in the Negev, the Zikim base in the northern Gaza Strip, in addition to the Anatot camp and the Ofer detention center in the West Bank.
The Israeli army refuses to allow the International Committee of the Red Cross to visit the prisoners to determine their number and the conditions of their detention.
Amnesty International has confirmed that the Israeli authorities are exploiting the law to arbitrarily detain civilians from the Gaza Strip, including women and children, without following the minimum legal procedures, and have prevented them from communicating with lawyers or contacting their families, in a situation that sometimes amounts to enforced disappearance.
Detainees suffer from harsh detention conditions and are subjected to various forms of torture and abuse, including severe beatings, electric shocks, burning with cigarettes and lighters, humiliation, starvation, harassment, sleep and deprivation from toilet facilities, threats of rape, and terrorizing with dogs.
Amnesty International confirmed that it had found reliable evidence of the widespread use of torture against detainees, subjecting them to inhuman and degrading treatment, and forcing them to be forced to strip naked in public for long periods, which constitutes sexual violence.
The organization documented all of this through interviews with former detainees, relatives of prisoners and their lawyers, in addition to medical reports and analysis of videos and photos obtained by the organization.
In the Sde Teiman military detention camp, located in southern Israel, many Palestinians from Gaza are imprisoned, away from the supervision of human rights organizations and the Red Cross, which allows the occupation to violate the rights of prisoners who were arrested under the “unlawful combatants” law.
The Israeli nonprofit Physicians for Human Rights has confirmed that hundreds of individuals are held in open-air pens, handcuffed and blindfolded throughout their detention, prevented from moving or speaking, and regularly subjected to extreme violence, leading to fractures, internal bleeding and sometimes death. It asserts that the Health Ministry’s guidelines for Sde Teiman prison allow for these abuses.
The Israeli military told Haaretz that it is investigating the deaths of 40 detainees while in Israeli custody, including 36 who died or were killed at the military detention center at Sde Teiman.
Violation of international law
International law does not recognize the status of “unlawful combatant,” and classifies detainees into two groups: combatants and civilians. Article 4 of the Third Geneva Convention of 12 August 1949 clearly states that “members of organized resistance movements” are prisoners of war and must be treated accordingly.
Under the Fourth Geneva Convention, an occupying power may detain individuals under occupation for imperative security reasons, but it recognizes the rights and protections guaranteed by international humanitarian law to prisoners and detainees, and provides guarantees to prevent indefinite or arbitrary detention, and to prevent torture and all forms of abuse.
Israel has created a new term, “unlawful combatant,” as it does not recognize the Gazan detainees as civilians or as combatants, and refuses to treat them according to the Third Geneva Convention on prisoners of war, and also refuses to treat them according to the Fourth Geneva Convention on the Protection of Civilians in Time of War, thus stripping the detainees of all the rights and protections provided to them by international law.
The detainee is tried under the “Unlawful Combatant Law” without an indictment or a specific charge against him, based on the existence of a special secret file in the security services that incriminates the prisoner, which results in the inability to appeal the charge, and practically deprives the detainee of his right to defend himself before the court.
The Israeli “Unlawful Combatants” Law, and the practices based on it, violate international law and the Geneva Conventions, as UN General Assembly Resolution 43/173 of 1988 stipulates that any person subjected to any form of detention shall be treated humanely and with dignity.
Under international conventions, the right of a detainee to a fair trial must be respected in all circumstances and conditions, and torture, cruel, inhuman or degrading punishment, and all forms of abuse such as incommunicado detention are prohibited, even in a state of emergency.
The UN Human Rights Committee has stated that the state is responsible for proving that an individual poses a threat, and that legal proceedings must include disclosure of the evidence on which the detainee was held.
International law requires that the detainee pose an individual threat. The International Committee of the Red Cross stipulated, in its official commentary on Articles 42, 43 and 78 of the Fourth Geneva Convention, that the detainee must be dangerous in and of itself, and that his membership in an organization of this nature is not sufficient, along with proof of his right to appeal.
Call to repeal the law
Many international institutions and human rights associations have called on Israel to repeal the “Unlawful Combatants Law” because it contains clear violations of international laws and basic principles of human rights.
In 2016, the United Nations Committee against Torture called on Israel to repeal the law, as it failed to provide basic legal guarantees for detainees, as they could be detained without charge or a specified period of detention, with the possibility of concealing evidence from the detainee and his lawyer.
Against the backdrop of Israel’s concealment of information related to the detainees it detained after the Al-Aqsa Intifada, a number of international and local human rights organizations submitted a petition to the Israeli Supreme Court, in late February 2024, to issue an order demanding the cancellation of the legal amendments related to enforced disappearance, which the Israeli authorities impose on all prisoners in Gaza.
Among these institutions were: Adalah, the Legal Center for Arab Minority Rights in Israel, the International Committee Against Torture, Physicians for Human Rights, HaMoked – Center for the Defense of the Individual, and Gisha.
On 18 July 2024, Amnesty called for the repeal of the “unlawful combatant law” and an immediate end to the indefinite detention of Palestinians from the Gaza Strip, without charge or trial.
It called for all detainees to be treated humanely and given the right to contact lawyers and international monitoring bodies such as the International Committee of the Red Cross, and the right to appear before a fair trial.
It also called for the immediate release of all arbitrarily detained civilians, and stressed the need for the Office of the Prosecutor of the International Criminal Court to conduct independent investigations into torture, ill-treatment, sexual violence and war crimes.