Thursday, March 26, 2009

Al Mezan Calls for Release of All Detainees Held by Israel and Especially those Categorized as ‘Unlawful Combatants’

Al Mezan Calls for Release of All Detainees Held by Israel and Especially those Categorized as ‘Unlawful Combatants’ in Contravention of International Law and Human Rights Principles

Reference: 32/2009

On Tuesday 24 March 2009, the Chief of General Staff of the Israeli Army ruled to release five detainees being held as ‘unlawful combatants’: Sameer Hamouda Saleh Hamada, 40; Saleh Mohammed Saleh Hamada, 33; Mohammed Anwar Hamouda Hamada, 35; Hasan Ali Nasar Abu Hlaiyl, 48; and Sameer Ali Mohammed Al-Atar, 38. They are from Beit Lahiya town and were arrested by the Israeli Occupation Forces (IOF) from their area of residence over which the IOF took control during its 23 day invasion of 27 December 2008 – 18 January 2009.

The Israeli authorities announced that a number of detained Palestinians had been transferred to the Beer el-Sabe (Beer Sheva) District Court to confirm their status as ‘unlawful combatants’ under a special law, “The Unlawful Combatants Law” (5762-2002). On the basis of this law the Beer el-Sabe District Court ruled that the detainees were “unlawful combatants” after the army claimed that it had confidential files and confidential intelligence information about what it described as their ‘activities against the security of Israel’ and ‘membership in hostile organizations.’

According to The Unlawful Combatants Law, the Israeli Chief of Staff may submit a request to the Beer el-Sabe District Court to categorize any Gaza Strip resident as an ‘unlawful combatant’ on the basis of confidential evidence and Israeli intelligence reports. The continued detention of these detainees does not require an admission of guilt or the existence of evidence acceptable as part of fair trial standards. This law essentially licenses the military to hold individuals arbitrarily and indefinitely, on the basis of assumed rather than proven guilt that they are conducting direct or indirect activities that could harm the security of Israel or are affiliated to groups working to harm the security of Israel. The law as applied to Palestinian citizens who are residents of Gaza has retroactive force.

Israel passed this law for political considerations. The Israeli government sought to ensure its ability to detain Gaza’s residents for long periods of time without a trial meeting bare minimum fair trial standards in a flagrant violation of the rules of international humanitarian law, customary international law and international human rights law applicable to the Gaza Strip.

The law removes the need that an ‘individual protected person is definitely suspected of, or engaged in, activities hostile to the security of the State’ required by Article 5 of the Fourth Geneva Convention. The Fourth Geneva Convention stresses also the right to a fair trial. The Unlawful Combatants Law therefore constitutes a grave violation of the Fourth Geneva Convention, especially as the law also enables indefinite detention without specific charges. The law also constitutes a violation of Article 50, paragraph 1 of Additional Protocol I to the Geneva Conventions which is considered customary international law. This article states: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” Israeli practice is the opposite, as the categorization as unlawful combatants of Gaza residents is made on the basis of assumption.

The Israeli law also violates the basic principles of international law that prohibit the passing of a law with retroactive effect. The Unlawful Combatants Law was applied retroactively to people being held on the date of the commencement of the law. The retroactivity contravenes international humanitarian law and the fundamental principles of international law; non-retroactivity is enshrined the Universal Declaration of Human Rights Article 11 and Article 15 of the International Covenant on Civil and Political Rights.

The decision to release the five abovementioned detainees confirms previous assertions by Al Mezan Center for Human Rights that the categorization of Gazan detainees as ‘unlawful combatants’ is an arbitrary practice, based not on evidence, but on the inability of the IOF to present any charges against the detainees.

Al Mezan Center for Human Rights considers the continued and indeed increasing categorization of Palestinians resident in Gaza as ‘unlawful combatants’ as yet further evidence of the nature of the Israeli judiciary which provides legal cover to the grave human rights violations perpetrated by the IOF in the oPt.

Al Mezan calls on the international community to:

· Immediately intervene to provide protection to Palestinian detainees

· Press for the repeal of the ‘Unlawful Combatants Law’

· Assume its legal obligation towards Palestinian civilians subject to grave and systematic human rights violations, especially detainees