The Israeli Unlawful Combatants Law: Old Wine in a New Bottle?

Abstract

The Israeli Incarceration of Unlawful Combatants Law of 2002 (the “2002 Law”) is arguably a legal instrument of controversial origins and limited practical utility. Still, its history presents an interesting case study of the way in which legal systems struggle to adapt themselves to new challenges presented by terror groups, and how the dialectic between the legislature and courts can contribute to the fine-tuning of legislation dealing with such issues. Furthermore, the cumulative experience acquired by Israel in applying the law may be of general interest to countries seeking to introduce a preventive detention schemes in the context of their counter-terrorism policies. Part One of this article briefly surveys the background to the enactment of the 2002 Law. Part Two introduces the main features of the 2002 Law and offers a few critical observations thereon. Part Three discusses a 2008 Supreme Court judgment in which a constitutional challenge to the validity of the 2002 Law was discussed and rejected. Part Four summarizes the principal changes introduced by a 2008 amendment to the Law, and Part Five takes stock of the application of the 2002 Law in practice. A few concluding observations are then be offered.

Keywords: Unlawful combatants, counter-terrorism, israeli supreme court, administrative detention, prisoners of war, international humanitarian law, international human rights law