Fw: Proposed Israeli Law Sanctioning Gov't HostageTaking

Paul Flewers hatchet.job at SPAMvirgin.net
Tue Jun 20 05:20:36 MDT 2000


I received this from Moshe Machover, lisr members may be interested.   Paul F  
  Sent: Monday, June 19, 2000 6:54 PM Subject: Proposed Israeli Law Sanctioning
Gov't HostageTaking
Subject: [Fwd: Important: Proposed Israeli Law Sanctioning Gov't HostageTaking]
Status:  
B'Tselem - The Israeli center for Human Rights in the
Occupied Territories
12 June 2000
sm 8992-e
Dear Sir/Madam:
I would like to alert you to a proposed Israeli law which
would allow government-sanctioned hostage-taking.
The government has proposed a proposed law entitled
Imprisonment of Combatants Who are Not Entitled to
Prisoner-of-War Status
The purpose of the proposed law is to allow Israel to continue
to hold Sheikh Obeid and Mustafa Dirani as hostages, although
the Supreme Court recently prohibited such action. The Knesset
is likely to grant the proposed law rapid passage.
Both the purpose of the Proposed Law and the manner in which
it seeks to attain that purpose are unacceptable. The law would
create a status that does not exist in international law, and
essentially allow the holding of hostages for an unlimited
period of time. These kinds of methods are characteristic of a
terrorist organization and not a democratic state. 
The proposed law establishes sweeping definitions and grants
broad powers to the military, contrary to principles fundamental
both to democracy and to international law. Enactment of the
proposed law will also set a disgraceful international precedent.
I have attached a translation of the proposed law and B'Tselem's
position paper on the matter. I urge you to address your concerns
to MK Prof. Amnon Rubenstein, Chair of the Constitution, Law, and
Justice Committee of the Knesset (fax 972-2-6753199) and MK Avraham
Burg, Speaker of the Knesset (fax 972-2-6754193).
Sincerely,
Eitan Felner
Executive Director
-----------------------------------------------------------------------
Position Paper on the Proposed Law: Imprisonment of Combatants
Not Entitled to Prisoner-of-War Status
In recent years, Israel held twenty-one Lebanese civilians in
administrative detention as "bargaining chips" to be exchanged
for Israeli soldiers held captive or missing as a result of the
war in Lebanon, and in particular to obtain the release or
information about the fate of Israeli navigator Ron Arad. Five
of the detainees were released in December 1999, and one more was
released in March 2000.
In April 2000, the Supreme Court ruled, in contrast to its previous
position, that the law pursuant to which these civilians were being
held does not allow the administrative detention of persons who do
not themselves endanger state security. Since the state did not argue
that the detainees came within this rubric, they were being held
unlawfully and must be released. 
Following the decision, Israel released thirteen more detainees. The
last two detainees, Sheikh 'Abd al-Karim Obeid and Mustafa Dirani,
remain in detention and Israel refuses to release them. However,
because of the Supreme Court's ruling, the state must now find a new
legal basis for their detention. The Proposed Law is intended to
provide this basis. 
Both the purpose of the Proposed Law and the manner in which it seeks
to attain that purpose are unacceptable. The Proposed Law establishes
sweeping definitions and grants broad powers to the military, in
contravention of fundamental principles of democratic countries and
of international law.
Principal elements of the Proposed Law
The Proposed Law defines a "combatant who is not a prisoner of war"
as "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" who is not entitled to the status of prisoner
of war under international humanitarian law.
The Proposed Law provides that, when the Chief of Staff thinks that
a person being held by Israel is a "combatant who is not a prisoner
of war," he may issue an order to detain the individual. The order
remains valid until the Minister of Defense announces the end of
hostilities between Israel and the force combating Israel to which
the individual belongs. The order may be issued in the person's
absence, but the individual must be informed of the order at the
earliest possible time and given an opportunity to argue against the
order before an officer holding the rank of Lt.-Colonel. The arguments
are forwarded to the Chief of Staff. 
Within twenty-one days from the day the order is issued, a District
Court determines whether the person being held is a "combatant who
is not a prisoner of war." The decision may be appealed to the Supreme
Court. During these proceedings, which are held in camera, the court
is allowed to examine evidence that is not disclosed to the detainee
or his or her attorney if the judge is convinced that disclosure may
harm state security or public safety. The detainee may meet with an
attorney as soon as possible, but the meeting may be prevented for
up to fourteen days. Only attorneys with security clearance are
allowed to represent detainees held under the Proposed Law.
Where the court determined that the individual is a "combatant who
is not a prisoner of war," the Chief of Staff is required to review
the case once every six months to determine whether special reasons
exist justifying the detainee's release. The detainee may appeal the
Chief of Staff's decision to a District Court.
The detention order does not prevent the criminal prosecution of a
"combatant who is not a prisoner of war." However, criminal
proceedings do not affect the validity of the order, and the
individual may be detained after completing the sentence imposed
in the criminal proceeding.
The Proposed Law does not apply to residents of Israel or the
Occupied Territories unless they took part in hostile activities
against Israel from outside the territory of Israel, the West Bank,
or the Gaza Strip. The Proposed Law applies retroactively to a
"combatant who is not a prisoner of war" held in Israel prior to
the Proposed Law taking effect.
Combatants and civilians in international law
The Proposed Law states that it is based on provisions of
international humanitarian law. Therefore, these provisions
should be explained before examining the sections of the Proposed
Law.
International law does not contain a category known as
"combatants who are not prisoner of war." International law
establishes only two categories of persons involved in a conflict:
combatants and civilians.
A "combatant" is any person who belongs to the armed forces of
a party to a conflict. This definition does not only apply to
combatants of a regular army, but also to combatants of
militias belonging to one of the sides to the conflict, provided
that the combatants meet a number of conditions. For example,
they must openly bear their weapons and distinguish themselves
from civilians by uniforms or other markings that enable them
to be identified from a distance.
The First Protocol of the Geneva Conventions expands the definition
of "combatant" to also include, in certain circumstances, combatants
belonging to guerrilla groups. Israel did not sign this protocol,
and therefore does not recognize the latter as combatants.
Only persons defined as combatants are allowed to take part in war.
These combatants are allowed to use force and perform acts that would
be considered criminal in a civilian context, such as murder, assault,
and causing damage to property, without being considered offenders.
Combatants who are held by the country against whom they were fighting
are entitled to the status of prisoner of war, which requires the
state holding them to safeguard their lives, health, and dignity. A
POW may be held in POW camps, but they may not be prosecuted for the
acts they committed during the war, unless they violated the laws of
war. Combatants' breach of the laws of war does not affect their
status. POWs are allowed, inter alia, to send and receive letters, be
visited by the International Committee of the Red Cross, and practice
their religion. Immediately upon termination of hostilities, they must
be returned to their country, even where a peace agreement has not
been signed.
Persons who are not combatants are civilians. Civilians, unlike
combatants, are not allowed to take part in the hostilities. If they
do, they may be prosecuted under the penal law of the country that
arrested them. They are not entitled to POW status.
Civilians, including those who took part in hostilities, benefit
from the protections of the Fourth Geneva Convention Relative to
the Protection of Civilians in Time of War. The prosecution of
civilians must be conducted, therefore, in accordance with the
rules of this convention. These rules provide, in part, that the
individual must be prosecuted as soon as possible, while ensuring
strict compliance with the principles of due process. After serving
any sentence that is imposed, the individual must be released.
The Fourth Geneva Convention also allows civilians of the adversary
state to be held in administrative detention, but detention under
this article is only allowed if the individual constitutes a concrete
danger to the security of the state. In such a case, the detention
must be reviewed as soon as possible by a court or administrative
tribunal. If it is decided to continue the detention, the state is
required to periodically examine, at least twice a year, whether
continuation of the detention is justified.
>From the general to the specific: the Proposed Law in light of
international law
The Proposed Law contravenes almost all of these rules of international
law, from creating the new category of "combatant who is not a prisoner
of war" to sweeping and almost unlimited use of the sanction of
administrative detention. 
Nullifying the distinction between combatants and civilians
The Proposed Law establishes the new category of "combatant who is
not a prisoner of war." This category equally applies to persons
who take an active part in hostilities and to individuals who do
not take an active part, if they belong to a "force combating Israel."
Under the Proposed Law, a member of a military arm of that combatant
force who kills an Israeli civilian is given the same status as a
person working in the force's medical clinic. By treating these
persons equally, the Proposed Law eliminates the distinction, upon
which international humanitarian law is based, between combatants
and civilians.
Furthermore, because the Proposed Law states that it does not deal
with persons entitled to the status of combatants, according to
international humanitarian law they belong to the civilian category.
The Proposed Law seeks to apply a special law to a particular group
within this category, only because the members of the group are
fighting Israel or belong to a force that is fighting against Israel.
Thus, persons entitled to certain rights pursuant to their status as
civilians under the rules of international humanitarian law will not
benefit from them in Israel, but will benefit from them everywhere
else. This definition makes a mockery of international law, whose
primary purpose is to establish common standards in all countries
and to prevent the situation in which a state conducts hostilities
according to rules it alone established. 
Sweeping use of administrative detention
The primary sanction established by the Proposed Law against a
"combatant who is not a prisoner of war" is administrative
detention. International law allows the use of this means, but
only in exceptional cases, to prevent a concrete danger that the
individual is likely to cause to state security, and where no
other alternative exists. "Combatants who are not prisoners of
war" are civilians and, therefore, if they took part in
hostilities, they may be prosecuted. Administrative detention
is unnecessary. The Proposed Law indeed enables criminal prosecution
of "combatants who are not prisoner of wars." However, the Proposed
Law's provision that enables holding them after they have completed
their sentence imposed in the criminal proceeding nullifies the
significance of the criminal prosecution and turns it into a
proceeding secondary to administrative detention, in violation of
international law.
The Proposed Law enables the administrative detention of any person
who comes within the sweeping category of "combatant who is not
a prisoner of war," without having to prove that the individual
is responsible for any harm to Israel or endangers it in any way.
Such detention violates the requirement of international law that
administrative detention be used only against persons who themselves
constitute an actual danger to the security of the state and
cannot be criminally prosecuted. In its decision in the matter of
holding Lebanese civilians as "bargaining chips," the president
of the Supreme Court, Aharon Barak, stated that  "The difference
between administrative detention of a person who poses a danger to
state security and administrative detention of a person who does
not pose a danger is not a 'quantitative' difference. It is a
qualitative' difference...  The harm to liberty and dignity is
so substantial and profound, making it insufferable in a state
that treasures liberty and dignity." These comments related to
the current law on administrative detention, but apply as well
to the Proposed Law. 
The Proposed Law does not limit the period in which the "combatant
who is not a prisoner of war" may be held in administrative
detention. The detention order remains in effect until the
Minister of Defense determines that "the hostilities between the
State of Israel and the force combating Israel to whom the prisoner
belongs or took part in its activities have ended." The Proposed
Law does not mention the factors on which the Minister of Defense
must rely in making this determination, but states that the notice
given by the Minister of Defense shall be conclusive evidence,
which may not be challenged. This provision, together with the
lack of a requirement of proof that the person him- or herself
endangers Israel's security, enables Israel to administratively
detain persons for a prolonged, essentially almost unlimited,
period of time. 
Insufficient judicial review   
The Proposed Law is inconsistent with the conditions established
for judicial review under international humanitarian law, and
the review it provides is incapable of preventing the sweeping
use of administrative detention.
First, the Proposed Law limits the power of the District Courts
to deciding the status of the detainee, and not to whether the
detention is justified. The Proposed Law confuses two different
proceedings in international law. Decision of the court regarding
the status of the individual is necessary when the question
arises whether the person is entitled to prisoner-of-war status.
Contrarily, in an administrative detention proceeding, the court
must make a broader determination - whether the detention is
justified. The Proposed Law does not enable this determination.
Second, the Proposed Law provides for periodic examination by
the Chief of Staff every six months. This provision addresses
the requirement of international law regarding periodic review.
However, the Fourth Geneva Convention requires that the
examination be made by a court or administrative tribunal
established for that purpose. Giving the detainee the possibility
of appealing the Chief of Staff's decision before a court does
not meet this requirement. The Proposed Law establishes an
advisory committee that is ostensibly intended to meet the
demand of the administrative committee. However, the powers
of the committee are not defined. Also, consultation with the
committee is not required, no provision is made regarding the
status of its recommendations and the Chief of Staff's obligation
to accept them.
Conclusion
The Proposed Law allows Israel to continue its policy of holding
Lebanese civilians as "hostages" until Israeli soldiers held
captive or missing are returned, as if the Supreme Court has not
ruled on the matter. This conclusion is apparent from the fact
that the Proposed Law applies to persons who did not harm Israel,
does not require that detained persons themselves endanger state
security, and gives the Minister of Defense sole power to determine
when the detention ends. The limited judicial review provided by
the Proposed Law cannot prevent holding individuals as hostages.
.
The holding of hostages is absolutely prohibited under international
law. If the Proposed Law is enacted, Israel would become the first
country in the world to sanction by law the holding of hostages, an
act that is a defining characteristic of terrorist groups around the
world.
The Proposed Law ostensibly seeks to establish a general principle
for the holding "combatants who are not prisoners of war." However,
examination of the circumstances in which the Proposed Law was
presented and its wording leads to the conclusion that it is
intended, first and foremost, to enable Israel to continue to hold
Sheikh 'Abd al-Karim Obeid and Mustafa Dirani as "bargaining chips"
to obtain the release of Israel soldiers held captive or missing.
The Proposed Law is clearly "tailored" to fit them, which the
drafters of the Proposed Law made no attempt to conceal. The fact
that the Proposed Law does not apply to residents of Israel or the
Occupied Territories and applies retroactively, in violation of
fundamental principles of the rule of law, to persons currently
held by Israel strengthens this conclusion. The attempt of the
drafters of the Proposed Law to use legislation to preserve an
unjust status quo is not befitting inclusion among the statutes
of a democratic state.
Any Israeli law must comply with the limitation clause of the
Israeli Basic Law: Human Liberty and Dignity, which states that,
"There shall be no violation of rights under this Basic Law
except by a Law befitting the values of the State of Israel,
designed for a proper purpose, and to an extent no greater than
required or in accordance with such a law pursuant to authority
expressly stated therein." The Proposed Law does not meet any
of these conditions.
The primary objective of international humanitarian law is to
protect the victims of war and occupation. Most of international
humanitarian law is directed toward that specific end. Israel
has consistently denied residents of the Occupied Territories
rights accorded them under the Fourth Geneva Convention, contrary
to the position held by the international community. It is
dismaying that, when Israel finally invokes provisions of this
convention, it distorts their interpretation, as well as the
spirit of international humanitarian law as a whole in order to
justify the violation of human rights.
-----------------------------------------------------------------
31 May 2000
Imprisonment of Combatants not Entitled to
Prisoner-of-War Status Law, 5760-2000
Purpose
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.
Definitions
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.
Judicial review
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(c) 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 that seven days prior to his being brought
before the President of a District Court in accordance with section
4(A).
Periodical Review
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.
Advisory Committee
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. 
Prison Conditions
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.
Criminal proceedings
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.
Transitional provisions
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.
Implementation
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.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++
LAW Society Lawyer Visits Journalist Al Alami on the  8th Day of His
Detention
13 June 2000
A lawyer from LAW Society today visited journalist Maher Abdul Majeed Al
Alami, 55, from Beit Hanina, Jerusalem. Al Alami has been held in custody in
Ramallah Central Prison since June 6, 2000.
The detainee said in an affidavit to LAW that the GIA (Palestinian General
Intelligence) summoned him on June 6 for interview, for which purpose he was
taken to the Ramallah & Al Bireh Governor's headquarters (Al Muqata'a).
However, he waited there for two hours, without being interviewed, before
being taken to the Ramallah police criminal investigation unit and then to
the Central Prison, where he is still in custody.
Al Alami said that his jailors had told him he was being held by order of
President Arafat. He added that there was also an order signed by Major
General Ghazi Al Jabali, Palestinian Chief of Police. The order stated that
Al Alami's custody was for an unlimited period, simply because he had
'broken the law'. No further explanation was offered. Al Alami said that
Captain Ali Ghnaim, director of the Ramallah criminal investigation unit,
had interrogated him several times about 'criticising the PNA'.
Al Alami emphasised that he had been told to "be silent" and forced to sign
a bond to that effect. Although the prosecution had not seen him, his family
was allowed to visit and he was permitted to receive medicines. Al Alami
suffers a heart condition that requires continuous medical attention. The
detainee described his treatment by the police as 'not bad'.
According to information gathered by LAW, Al Alami participated in a talk
show that was broadcast on Al Quds Educational Television on the evening of
Wednesday 31 May 2000. The programme focused on the PNA's policy of closing
down local TV and radio stations, such as Al Nasr TV and Radio Al Manara. Al
Alami was also questioned about his opinions published in the Al Istiqlal
newspaper.
LAW Society reiterates its concern about the arrest of Maher Al Alami and
the recurrent arbitrary arrests of journalists, intellectuals and
politicians for practicing their right to freedom of speech. LAW Society is
also concerned about the repeated closures of local TV and radio stations
for the same reason, as these actions seem to be becoming the official
policy of certain Executive Authority apparatuses.
LAW Society considers Al Alami's arrest as arbitrary and demands the
following of the PNA:
1. The immediate release of Maher Al Alami.
2. An end to the arbitrary arrests and the immediate release of
all political prisoners.
3. The reopening of all TV and radio stations, guarantees for
the supremacy of law and respect for human rights and an end to barring
freedom of speech in accordance with local and international law.
LAW - The Palestinian Society for the Protection for Human Rights and the
Environment is a non-governmental organisation dedicated to preserving human
rights through legal advocacy.
LAW is affiliate to the International Commission of Jurists (ICJ), The
Federation Internationale des Ligues de Droits de l'Homme (FIDH), The World
Organisation Against Torture (OMCT), and is a member of the
Euro-Mediterranean Human Rights Network (EMHRN)
LAW
PO Box 20873
Jerusalem
Tel: 00 972 2 583 3428/3298/3537/3530/3430
Fax: 00 972 2 583 3317
Email: law at lawsociety.org
Website: http://www.lawsociety.org




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