On December 18, 2023, the Knesset (Israel’s parliament) passed the Detention of Unlawful Combatants Law (Amendment No. 4 and Temporary Order – Iron Swords), 5784-2023 (2023 amendment law), amending the Detention of Unlawful Combatants Law, 5762-2002, as amended (the law).
The 2023 amendment law is one of the temporary measures adopted following the declaration of a state of war made by the Israeli government in response to the surprise attack by Hamas militants from the Gaza Strip on October 7, 2023.
Procedures for Imprisoning Unlawful Combatants
The law provides specific procedures for the detention of “unlawful combatants.” Among other procedures, the law regulates the issue of detention orders, the duration of detention, judicial review, and a detainee’s right to legal representation.
The law defines an “unlawful combatant” as:
A person who takes part in hostile activity against the State of Israel, directly or indirectly, or belongs to a force engaged in hostile activity against the State of Israel, but does not meet the conditions granting the status of prisoner of war under international humanitarian law, as detailed in article 4 of the Third Geneva Convention of 12 August 1949 regarding the treatment of prisoners of war.
The law authorizes the Israel Defense Forces (IDF) chief of staff to issue a detention order when there are
A detention order must include the reasons for the detention, without harming the needs of state security. If issued in the absence of the detainee, the order must be brought to the detainee’s attention at the earliest possible date. The detainee will be released within 96 hours after being detained unless a detention order was issued, or earlier, on the basis of a decision by the chief of staff. A detainee is entitled to meet with a lawyer at the earliest possible time and no later than seven days after detainment. This period may be extended to 10 days, for reasons of state security or to preserve life, by an IDF officer with the rank of colonel or above, or by the head of the Israel Security Agency (ISA) department of investigators, as determined by the law.
A detainee must be brought before a district court judge for review of their detention within 14 days of the arrest and be released if the judge finds that the conditions for the issue of a detention order have not been met.
Implementation During Wartime or Significant Military Action
A 2008 amendment of the law authorized the government to declare the existence of “widespread hostilities,” resulting in implementation of “more flexible arrangements.” These include the delegation of detention authority otherwise reserved to the chief of staff to an officer with the rank of brigadier general, and that reserved for an officer with the rank of lieutenant to an officer with the rank of captain. The 2008 amendment further extended the period in which an unlawful combatant could be detained without a detention order from 96 hours to seven days.
The 2023 amendment law replaced the declaration of “widespread hostilities” with a statement by the government, or by the ministerial committee under conditions provided, that the application of certain enumerated provisions under the law is necessary, following the government’s “decision to start a war, take significant military action or take other military actions in accordance with section 40(c) of the Basic Law: The Government.”
The statement enables IDF and ISA officers with the rank of lieutenant colonel or the head of the ISA team of investigators to exercise detention authority previously requiring higher-ranking officers. The 2023 amendment law further extended the period of 96 hours after which a detainee must be released in the absence of a detention order to 45 days, but declares that “a temporary detention order shall not remain in effect for a period exceeding 30 days unless issued or extended by an officer with the rank of major or higher.” The amendment also extended the period within which a detainee must be brought before a judge from 14 to 75 days and the period within which a detainee may meet with an attorney from seven to 30 days, under conditions enumerated.
The 2023 amendment law authorizes court hearings to be conducted under the law by way of visual conferencing, in accordance with the Law for Holding Visual Conferencing with the Participation of Detainees, Prisoners and Inmates (Temporary Order – Iron Swords), 5774-2023.
Ruth Levush, Law Library of Congress
January 25, 2024
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