## Facts

- A and B, Palestinian residents of the Gaza Strip, were placed in administrative detention by Israel in 2002 and 2003 on suspicion of involvement with Hezbollah and hostile activity.
- Their administrative detentions were periodically reviewed and upheld by the Gaza Military Court under the security detention regime then applicable in Gaza.
- In September 2005, Israel ended its military rule in the Gaza Strip, which required a new domestic legal basis for continued detention.
- On 12 September 2005, internment orders were issued for A and B under the Internment of Unlawful Combatants Law, 5762–2002.
- The law authorizes detention of an “unlawful combatant,” defined as a person who took part in hostilities or is a member of forces carrying out hostilities against Israel and who does not meet the conditions for prisoner-of-war status.
- Judicial review began in the Tel-Aviv–Jaffa District Court on 22 September 2005. The District Court upheld the internment orders, finding that release would harm state security.
- The District Court continued conducting periodic reviews and repeatedly upheld continued internment, relying on findings that A and B were members of Hezbollah, that Hezbollah remained engaged in hostilities with Israel, and that A and B had previously participated in covert hostile activity and could return to it if released.
- A and B appealed a series of District Court review decisions. The appeals were consolidated in the Supreme Court (Court of Criminal Appeals), including CrimA 3261/08, and decided on 11 June 2008.

## Issues

1. Whether the Internment of Unlawful Combatants Law violates the right to personal liberty under Basic Law: Human Dignity and Liberty, and if so whether the violation satisfies the limitations clause (proper purpose and proportionality).
2. How “unlawful combatant” should be interpreted, and whether the statutory category can be applied consistently with international humanitarian law and the Geneva Conventions framework.
3. Whether detention under the law is preventive (administrative) rather than punitive, and what showing of individualized security danger is required to justify internment.
4. Whether, after the end of Israeli military rule in Gaza, Israel could continue to detain A and B under the law while hostilities with Hezbollah persisted.
5. Whether the evidence before the reviewing courts was sufficient to justify A and B’s continued internment.

## Decision

- The Supreme Court dismissed the consolidated appeals and affirmed the District Court’s decisions approving A and B’s continued internment.
- The Court held that the Internment of Unlawful Combatants Law infringes liberty, but serves a proper security purpose and can satisfy proportionality when interpreted and applied with strict substantive and procedural limits.
- The Court interpreted “unlawful combatant” in a manner consistent with international humanitarian law, treating those detained under the law as civilians for international-law purposes, while allowing security internment where required by necessity during an armed conflict.
- The Court characterized detention under the law as administrative and preventive, not a criminal punishment, and held that continued detention requires an individualized assessment of danger supported by clear and convincing administrative evidence.
- Applying that construction, the Court accepted the lower courts’ findings that A and B were linked to Hezbollah, that hostilities with Hezbollah continued, and that releasing A and B posed a real security risk because they could rejoin hostile activity.

## Legal Principles

- A statute authorizing preventive security detention may be valid under Basic Law: Human Dignity and Liberty if it serves a proper security purpose and meets proportionality requirements, including meaningful judicial control.
- “Unlawful combatant” is not treated as a third status outside the combatant/civilian structure in international humanitarian law; persons detained under the law are treated as civilians, with detention permitted only on security-necessity grounds.
- Internment under the Internment of Unlawful Combatants Law is administrative and preventive; it is not a substitute for criminal prosecution and is not justified as punishment.
- The State must show an individualized security danger; membership or activity must be tied to a real risk from release in the context of ongoing hostilities.
- The evidentiary burden is demanding for an administrative measure of this severity: detention should rest on clear and convincing administrative evidence, with statutory presumptions applied narrowly.
- Use of classified material in security detention review may be allowed, but must be balanced by procedural protections, including hearings, judicial scrutiny, and periodic review with the possibility of appeal.
- A change in Gaza’s governance framework after disengagement does not by itself end the State’s ability to detain under the law when hostilities with a hostile force continue and detention remains subject to repeated judicial review.

## Conclusion

The Supreme Court of Israel (Court of Criminal Appeals) upheld the Internment of Unlawful Combatants Law as consistent with Basic Law: Human Dignity and Liberty when strictly construed to require preventive, individualized detention supported by clear and convincing administrative evidence and subject to ongoing judicial review, and it affirmed the continued internment of A and B based on their ties to Hezbollah and the ongoing security risk their release posed.


A and B v. Israel, CrimA 3261/08, ILDC 1069 (2008)