Analysis: Could Israeli policy on POWs impact ICC probe?

To combat current violence, Israel has pushed forward with a number of more aggressive national security policies which few or no other democratic countries recognize.

The entrance of the International Criminal Court (ICC) is seen in The Hague (photo credit: REUTERS)
The entrance of the International Criminal Court (ICC) is seen in The Hague
(photo credit: REUTERS)
Israel is gambling again.
To combat the current intifada, the country has pushed forward with a number of more aggressive national security policies, such as house demolitions, which encumber civil liberties based on unique readings of international law that few or no other democratic countries recognize.
Late Monday night, the Knesset passed into law by a 38-8 vote an amendment to the Imprisonment of Illegal Combatants Law (2002) governing declaring certain non-state fighters “enemy combatants.”
The amendment makes it substantially easier to declare fighters enemy combatants by granting temporary authority to do so to IDF captains, down from lieutenant-colonels, and for extended declarations down from the IDF chief of staff to brigadier-generals.
It also extends temporary detention for enemy combatants from 96 hours to seven days, meaning until then the detainee does not get to see a judge.
The idea of declaring non-state fighters “enemy combatants” is to obtain the power to treat them as prisoners without the protections of “prisoner of war” rights that a state’s combatants have under international law.
The premise of this distinction is that just as non-state fighters such as Hezbollah, Hamas in Gaza and ISIS do not fight for a formal state or army, do not wear military uniforms, and ignore international law obligations, they should not benefit from international law protections reserved for those who wear military uniforms and abide by the laws.
This was a position aggressively pressed by the US after the September 11, 2001, attacks in its arrests and interrogations of al-Qaida fighters around the world.
Even in the heyday of the “war on terror,” the global view rejected this position, though it was slightly less rejectionist when Israel adopted the 2002 law.
Since March 2009, however, President Barack Obama declared a break with using the enemy combatant category, saying that it was not only overused, but also that it was at the least questionable whether such a departure from POW principles could be justified under international law.
Later, he signaled that no new detainees would be arrested under law of war indefinite detention principles as the Bush administration had done, and that all of the detainees previously classified as enemy combatants would receive added international law protections and a variety of due process and criminal proceedings. Finally, reportedly, the US considered extending an initial detention period of terrorists prior to seeing a judge to seven days and rejected this in favor of 96 hours since no other democracies go beyond four days.
That means if Israel could defend its enemy combatant rule from 2002 until 2009, noting that the US was doing it, since 2009, Israel has been alone (though Israel can still point out that Guantanamo Bay is still open).
Also, the country is currently in a period where every move it makes relating to international law is under heavy scrutiny by the International Criminal Court prosecution, which has been reviewing potential war crimes allegations against Israelis since January 2015.
All indications from an exclusive interview that Chief Prosecutor Fatou Bensouda gave to The Jerusalem Post in February were that the ICC prosecution is gaging Israel’s credibility on borderline judgment-call issues.
The main war crimes allegations will come down to Israeli targeting decisions during the 2014 Gaza war (Operation Cast Lead) and the settlement enterprise.
Yet when Bensouda needs to decide whether to believe the IDF’s narrative over that of Hamas and possibly human rights NGOs, part of her assessment will take into account whether she thinks the IDF understands international law the way other countries do.
This new amendment will not help that effort.
It sends the message that Israel not only interprets international law and war issues differently than the rest of the world, but that, at least on enemy combatants, it is more concerned about administrative efficiency than holding to the highest standards.
What is most perplexing about the change in law is that there seems no pressing reason for it.
The Post contacted the Defense Ministry, the prime mover behind the change, and the international law spokeswoman for the Justice Ministry, and received no response explaining why the change was necessary.
The law only applies to Hezbollah fighters, ISIS fighters who are not Israeli citizens and Hamas fighters from Gaza, none of whom are currently being arrested or are expected to be arrested in the near future. It does not apply to most fighters or terrorists whom Israel is currently arresting.
It does not apply to Hamas fighters from the West Bank, who are indicted or held in administrative detention under specific West Bank Court rules.
It does not apply to Israelis who join ISIS.
IDF and Justice Ministry documents from July-December 2014 as well as a thorough review of publicly available information that the Post obtained mostly from Hamoked and also from Adalah indicated that during the 2014 Gaza war, the military detained 159 Gazan Palestinians.
It seems, however, that even at the high point, only 25 were detained as enemy combatants.
Three temporary detention facilities were established during the fighting and were located in Israel, but were operated below the maximum capacity and were dismantled at the end of the operation.
The preamble to the law seems to imply that granting the authority to declare captured fighters as enemy combatants needed to be delegated to lower ranking IDF officers to avoid a crisis in the field by enabling quicker decisions on dealing with prisoners.
But the above description of the 2014 Gaza war, that around 25 detainees were so classified, most of whom it appears did not remain in the category of enemy combatants beyond weeks or months, suggests there was no crisis.
Curiously, the preamble does not mention the 2014 Gaza war, meaning it is unclear how updated the law was and how much it took into account the ICC’s probe of the IDF.
Clearly, lately Israel has exhibited greater confidence that Bensouda will not decide to prosecute Israelis, with former IDF Legal Division head Maj.-Gen.
(res.) Danny Efroni even calling ICC involvement very doubtful.
Is this informed confidence or overconfidence? And is the amendment to the Imprisonment of Illegal Combatants Law a “yawn” moment only important to law of war experts with very little real world meaning until the next war? Or could it be another turning point that torpedoes Israel’s case before the ICC prosecutor? Only time will tell.