A recent judgment of the Israeli High Court of Justice (HCJ) turned more than a few heads when it upheld, in one of the most difficult and hollow decisions in recent years, the legality of the legislative framework governing the imprisonment of "unlawful combatants" from the Gaza Strip. This legislation, drafted in response to the 2006 war in Lebanon, is intended to govern the arrests of "unlawful combatants" in conflict situations.[i] This judgment was rendered in the case of HCJ 3261/08 Anonymous v. The State of Israel[ii] following a petition lodged by Adv. Abu Shchada on behalf of the Israeli human rights organization Hamoked: Center for the Defence of the Individual.
Whilst examining the constitutionality of the law, the Court’s judgment also checks the law’s compliance with basic structures of International Humanitarian Law (IHL). It then very abruptly refuses to admit that the detention of non-nationals in the context of a conflict can occur only under the laws of war, and that the law therefore must explicitly comply with relevant humanitarian and human rights guarantees in order to be legal. The continuous deprivation of detainees’ basic due process guarantees and the refusal to release detainees who are held as "bargaining chips" for the purpose of blackmail and prisoner exchange, was sidestepped altogether, and mention thereof limited to laconic comments of virtually no direct normative force. Read more