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Israel, the Occupied West Bank & Gaza Strip, and Palestinian Authority Territories
HRW World Report 2000
Israel Seeks to Legalize War Crimes
May 31, 2000
Translation from Hebrew provided by B'Tselem
1. The objective of this law is to incorporate in Israeli law the imprisonment of combatants who are not entitled to prisoner-of-war status, in a manner consistent with the provisions of international humanitarian law, particularly the Geneva Conventions of 12 August 1949.
2. In this Law:
"Chief of Staff" - the Commander of the General Staff of the Israel Defense Force;
"combatant who is not a prisoner of war" - a person who belongs to a force fighting against Israel or a person taking part, directly or indirectly, in hostile activities of the said force, but who does not meet the conditions set forth in articles 1, 2, and 3 of the annex to the IV Hague Convention of 1907 Regarding the Laws and Customs of War on Land, or article 4 of the Third Geneva Convention of 12 August 1949 regarding the handling of prisoners of war, and is not entitled, therefore, to the status of prisoner of war.
"force combating Israel" - a force engaged in hostile activity against the State of Israel;
"prisoner" - a combatant who is not a prisoner of war who is imprisoned pursuant to an order issued by the Chief of Staff pursuant to this Law;
"President of a District Court" - including the deputy-president of a District Court, whom the president of a District Court designated for the purposes of this Law.
Imprisonment of a Combatant Who is Not a Prisoner of War
3. (A) If the Chief of Staff has a basis to assume that a person being held by state authorities is a combatant who is not a prisoner of war, he may issue an order under his signature directing imprisonment of that person at a location he shall determine.
(B) The order issued pursuant to subsection (A) shall be valid until such time that the Minister of Defense gives notice, by a certificate signed by himself, of the end of hostile activities between the State of Israel and the force combating Israel to whom the prisoner belongs or took part in its activities, or until an earlier time that the Chief of Staff shall direct.
(C) An order under this section may be issued in the absence of the person being held by the state authorities.
(D) An order under this section shall be made known to the prisoner at the earliest possible time, and he shall be given the opportunity to state his arguments regarding the order before an officer holding the rank of Lt. Colonel appointed by the Chief of Staff for this purpose. The prisoner's arguments shall be presented, in writing, to the Chief of Staff.
4. (A) Within twenty-one days from the day the order is issued as aforesaid in section 3(A), the prisoner shall be brought before the President of a District Court, who shall determine whether the prisoner is a combatant who is not a prisoner of war.
(B) The said decision of the president of a District Court may be appealed within thirty days to the Supreme Court, where a single justice shall hear the appeal.
(C) In proceedings pursuant to this Law, deviation from the laws of evidence is allowed, the reasons for which shall be recorded. The court may admit evidence, also in the absence of the prisoner or his attorney, or without disclosing it, if, after examining the evidence or hearing arguments, also in the absence of the prisoner or his attorney, it is convinced that disclosing the evidence may harm state security or public safety. This provision does not prejudice any right not to provide evidence pursuant to chapter C of the Evidence Ordinance (New Version), 5731- 1971.
(D) Hearings pursuant to this Law shall be conducted in camera unless the court instructs otherwise in this matter.
(E) The Minister of Justice may by order limit the right of representation in proceedings under this Law to persons approved to serve as defense counsel in military courts with an unrestricted approval as stated in section 318© of the Military Justice Law, 5715-1955.
(F) The prisoner may meet with an attorney at the earliest possible time in which such a meeting can be held without harming state security needs or operational needs of the Israel Defense Force, and in any event no later than seven days prior to his being brought before the President of a District Court in accordance with section 4(A).
5. (A) Once every six months from the day the order was issued pursuant to section 2(A), the matter of the prisoner shall be brought before the Chief of Staff so that he can examine whether there are special reasons, including humanitarian, justifying the prisoner's release.
(B) The prisoner may petition the District Court against the decision of the Chief of Staff pursuant to subsection (A). The petition shall be heard by the president of a District Court, and the provisions of section 4(B) - (F) shall apply to the hearing on the petition.
6. (A) The Minister of Defense shall appoint a committee to advise the Chief of Staff in exercising his powers pursuant to section 5.
(B) The committee shall be composed of three members -
(1) A retired judge, who shall serve as chairperson of the committee;
(2) An officer of the Israel Defense Force, holding the rank of at least Major-General, who is in the reserves;
(3) A physician.
(C) The advisory committee shall establish its work procedures.
7. (A) The prisoner shall be held in proper conditions, which will not harm his health or dignity.
(B) The prisoner's prison conditions shall be set forth in regulations enacted by the Minister of Defense.
8. (A) Criminal proceedings pursuant to any law may be taken against a combatant who is not a prisoner of war.
(B) The Chief of Staff may direct by order, pursuant to section 3, the imprisonment of a combatant who is not a prisoner of war also where criminal action has been taken against him pursuant to any law.
(C) A combatant who is not a prisoner of war shall not be released pursuant to section 3(B) if he is being detained or serving a prison sentence pursuant to another law.
Determination Regarding Hostile Activity
9. The determination of the Minister of Defense, in a certificate signed by him, that a certain force is a force combating Israel, or that hostile activities have not yet ended between Israel and the force combating Israel, shall serve as decisive proof in this matter.
Limitation of Application
10. The provisions of this Law shall not apply to a person who is a resident of Israel or a resident of the region or the area of the Palestinian Council, unless he took part in a hostile activity against the State of Israel from outside Israel's territory, the region, or the area of the Palestinian Council. For the purposes of this section, "region" and "area of the Palestinian Council" are as defined in the Extension of Validity of Emergency Regulations (Judea, Samaria and the Gaza Strip - Jurisdiction of Offenses and Legal Assistance), 5738- 1977.
Delegation of Authority
11. The Chief of Staff is entitled to delegate his powers pursuant to this Law to an officer holding the rank of Major-General whom he shall designate.
Preservation of Laws
12. The provisions of this Law shall not prejudice the provisions of any law.
13. (A) This Law shall apply also apply to a combatant who is not a prisoner of war, who is held by state authorities on the date of its commencement.
(B) As long as no regulations have been enacted pursuant to section 7(B), the Emergency Power Regulations (Detentions) (Conditions of Administrative Detention), 5751-1981, shall apply to the prison conditions of a prisoner held pursuant to this Law.
14. (A) The Minister of Defense is charged with implementation of this Law.
(B) The Minister of Justice may enact regulations regarding procedures in proceedings pursuant to this Law.