Defense Minister Naftali Bennett has recently informed defense establishment officials that he intends to treat Gazans who cross into Israel as “illegal combatants,” and thereby increase the number of Gazans incarcerated in Israel. Bennett seeks to use them in the event of future negotiations over the return of Israeli prisoners or dead soldiers.
If the defense establishment accepts Bennett’s demand, such infiltrators will be held under the same procedures that apply to administrative detainees – those detained without charges – who are arrested in exceptional circumstances. However, in contrast to these, Gazan detainees held as illegal combatants can be imprisoned indefinitely.
Officials in the defense establishment were shocked by Bennett’s demand, arguing that such a decision would have major significance, not just in terms of international law. They said that most Gazans come into Israel out of economic distress, wishing to find work in the country. They carry knives, axes or old grenades knowing that only that way will they be arrested, rather than returned to Gaza through the hole in the fence through which they entered.
The Defense Minister’s Office refused to comment on the plan.
Many of these Gazans are minors, other are desperate, weakened people just waiting to be arrested. Large numbers of detainees will become a burden on the forces along the border, requiring much effort in transporting them to detention facilities.
Defense officials say that many such Gazans have mental problems, and try to enter in search of work and food. Some want to spend time in jail, where they can sleep and eat. Others are worried because of their sexual orientation or after being involved in some dispute. A recent case involved charges against four young infiltrators: The indictment stated they came here intending to be arrested without being returned to Gaza.
An illegal combatant in Israeli law is defined as a person who participates in hostile acts against the state, directly or indirectly, or as a person who identifies with a unit committing hostile acts, one that is not affiliated with any state or organization. Such affiliation gives a detainee the status of a prisoner of war under international law, as detailed in the Geneva Convention. The new status would apply to a Gazan, unaffiliated with any organization, who crosses into Israel carrying a knife.
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According to the law proposed by Bennett, an officer with the rank of captain or higher, approved by the chief of staff, will be able to determine if such an infiltrator can be deemed an illegal combatant. This officer will be allowed to incarcerate the Gazan for a week, until a decision is reached regarding an arrest order, without any need to let him see an attorney or to get a court order.
After one week, an officer with the rank of major general or the chief of staff will decide –if they believe he meets the criteria and that his release will pose a security risk, the detainee will receive an arrest order for 14 days or more, after being given a chance to voice his arguments before a lieutenant colonel or higher-ranking officer. Once every six months, the detainee will be brought before a district court judge for judicial review.
International law ceased recognizing laws pertaining to so-called illegal combatants, based on the view that there is no third category beyond that of combatants or prisoners of war. For the international legal community, a person fighting in the ranks of an army or an organization which recognizes the rules of war is deemed a prisoner of war when captured. Anyone not affiliated with these two categories is considered a civilian who participated in hostile actions and is to be charged as a criminal.
When civilians engage in combat, they must be charged under the criminal laws of the country holding them. Detention without charges in such circumstances will be monitored under international law. Such persons must be released upon the termination of their sentence or when they’re no longer considered a risk that justifies administrative detention.