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Israel: Review of Internment of Unlawful Combatant

(Sept. 10, 2009) On August 30, 2009, the Supreme Court of Israel rejected an appeal by a Gaza resident of a decree issued against him for continued detention following the completion of his term of imprisonment for committing the offenses of membership in an unlawful association (the Popular Front for the Liberation of Palestine) and attempted murder. The decree on the appellant's continued detention was issued by the Israel Defense Forces Commander and confirmed by the Tel Aviv District Court, which held that “the respondent's release and return to the Gaza Strip constitute a danger to state security and pose a serious risk of continued hostile activity.” The Supreme Court reached its decision based on privileged evidence. The appellant claimed that he was no longer a member of the Popular Front.

Justice Elyakim Rubinstein rejected the appeal. He reviewed the legality of the detention decree in accordance with the Internment of Unlawful Combatants Law, 5762-2002. The Law provides for a judicial review of detention orders once every six months and orders the Court to void such orders in cases where it finds that the detainee's release will not harm state security or where special reasons justify a detainee's release.

After evaluating the privileged evidence that formed the basis for the state's refusal to release the appellant, Justice Rubinstein held that the intelligence materials gathered against the appellant, both prior to and after his initial detention, indicate that “he has not left his conviction in the path of terrorism and has continued to hold his previous opinions in prison, not only in theory but also in action, in a way that indicates that his release will harm state security.” Justice Rubinstein stated that this conclusion does not prejudice the possibility that with the passage of time or change of conditions in the Gaza Strip the appellant's dangerousness may be lessened. (Ap. 6574/09 Muhamad Abu Oun v. State of Israel [in Hebrew], the Nevo Online Legal Database, [search for Supreme Court decision of Aug. 30, 2009] (last visited Aug. 31, 2009); Internment of Unlawful Combatants Law, 5762-2002, SEFER HA-HUKIM [the official gazette], No. 1834, at 192 (5762-2002).)