Internment on Security Grounds

One of the main security measures employed by the military authorities in the Occupied Territories has been internment, outside the criminal process. The main form of internment, employed since the beginning of the occupation, has been administrative detention. This form of detention was not considered appropriate when there were mass detentions of potential fighters during active hostilities and a special legal arrangement was adopted to deal with such detentions. Another form of detention adopted at the beginning of this century is incarceration of persons regarded as ‘unlawful combatants.’ This chapter discusses the Court’s approach in review of all these forms of internment.

Unlawful Combatants

The legal situation of ‘unlawful combatants’ has been one of the most contentious issues in international humanitarian law. It has been addressed in some detail in legal writings following the adoption of the Geneva Conventions of 1949 and then before the 1977 Additional Protocols to the Geneva Conventions were adopted. The United States-led military campaign in Afghanistan, which started in 2001, revived the debate. This chapter examines the debate concerning the legal framework applicable to the possible detainability and targetability of ‘unlawful combatants’. It first considers ‘unlawful combatants’ in the hands of the enemy within the framework of international and non-international armed conflicts. It then discusses the penal prosecution of ‘unlawful combatants’ as well as their status under the rules of the conduct of hostilities. The chapter concludes by looking at the practice in Israel and the United States, the former in reference to the incarceration of unlawful combatants and the latter with respect to the fight against terrorism.