Articles

Introduction

In March 2026, 9,446 Palestinians were under the custody of the Israeli Prison System (IPS), according to reports by Hamoked, an Israel-based human rights NGO. Only 1,357 of them have been convicted, 3,398 remain in remand detention awaiting criminal proceedings, 1,249 are held in custody under the Unlawful Combatants Law, and the remaining 3,443 are held under administrative detention with no criminal charges pressed, nor formal accusation of committing an offense other than being considered a risk to public order.

Several non-profit organisations and UN agencies have extensively documented human rights violations perpetrated by the Israeli Defence Forces (IDF) and the IPS against individuals deprived of liberty, including acts of torture, ill-treatment, and unlawful restrictions on the right to a fair trial (Baumgarten-Sharon & Stein, 2015; Albanese, 2023; OHCHR, 2024; Amnesty International, 2024; Hutcheon, Jackson, & Sadoughi, 2024; Euro-Med Human Rights Monitor, 2025; Albanese, 2026). Serious concerns regarding the deliberate character of such violations persist, and while human rights instruments, including the Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT), remain uncontestably applicable, this article will not attempt to discuss whether the acts perpetrated by IDF or IPS officials constitute breaches of international human rights law. The evidence is undeniable. Rather, this article aims at understanding what are the main guarantees provided by International Humanitarian Law (IHL) for Palestinians deprived of liberty, which operates as lex specialis in situations of occupation, and whether Israel is complying with the obligations set out under this framework.

Firstly, this article will explore the legal regimes applied in the Occupied Palestinian Territories (OPT) by Israeli authorities for administrative and remand detention; then it will  analyse whether such regimes comply with IHL, and finally it will discuss whether Israel’s implementation of such legislation, notably the Unlawful Combatants Law, are in compliance with the treatment and safeguards required by IHL.

Detention and Criminal Prosecution in an Apartheid Court System

In OPT, Israeli settlers and Palestinians systematically receive a differentiated treatment before the judicial system. While Israeli citizens residing in unlawful settlements are subject to the Israeli common civil and criminal law systems, Palestinians are subject to the jurisdiction of military courts established since 1967 by Military Orders (MO) 2 and 378.

According to B’tselem (2017), the military courts have jurisdiction over Palestinian nationals suspected of committing two categories of offenses:

1. “Security offenses” which include “any offense enumerated in the security legislation and in statute”, and
2. Threats to “public order” including traffic violations, and all criminal offenses that are not defined as security offenses.

Military Courts ground their jurisdiction in orders enacted by the IDF for the administration of military operations in occupied territories, and the control of public and private matters of Palestinians, including restrictions on freedom of assembly, expression, and movement, use of land, and criminal matters that – in eyes of the IDF – are of interest to the State of Israel.

Military orders, therefore, provide the criminal and security grounds under which a Palestinian can be arrested. For instance, MO 101 from 1967 provides that Palestinians can be detained for any act that may be considered by the IDF to be an offense against ‘public order’ or ‘security’, such as organising and participating in protests, taking part in assemblies or vigils (i.e. one or more persons who have gathered in a place for a political purpose), holding or waving flags and other political symbols, or printing and distributing political material. Similarly, MO 1651 prescribes detention for criminal offenses,  such as disturbing a soldier, offending an IDF authority or symbol, disobeying orders given by IDF, or even throwing objects, including a stone, amongst other offenses common to the Palestinian judicial system, including murder, assault, kidnapping, etc.

Individuals arrested for committing any of these offenses can be brought into custody and held under administrative detention for a period of six months, extendable for unlimited six-months periods, without having any accusation, criminal charge pressed or trial initiated. This regime is grounded in MO 1591, which authorises administrative detention where there is reasonable cause to believe that the “reasons of security of the region” or “public security” require the detention of a particular individual.

On the other hand, individuals who are arrested may be subject to criminal prosecution –often on a discretionary basis– under a range of legal frameworks, including the aforementioned Military Orders, and the Counter Terrorism Law (2016), which typifies acts of terrorism as regular or “grave” security offenses. Other commonly invoked frameworks include the Entry into Israel Law (1952) and MO 329 (1960), which establish the category of “infiltrators” and jointly criminalise unlawful presence or attempted entry into Israel; MO 1310 (1992), which codifies traffic offenses; and the Unlawful Combatants Law, which provides grounds for the detention of individuals alleged to have participated in hostilities against Israel.

While Military Courts can be established in times of occupation under Article 66 of the Fourth Geneva Convention (hereinafter GC IV), their function and jurisdictional exercise in OPT have raised serious concerns amongst scholars and civil organisations due to their lack of compliance with international fair trial and due process standards (Weill, 2007; Ramati, 2020; Simmons, 2021; Herzberg, 2021). What remains further reproachable is the unclear application of security and criminal law regimes to indiscriminately detain individuals for the ‘security of the State’, as often referred to by Israeli judicial authorities. International Humanitarian Law provides a legal basis to carry out detentions under grounds that will be further discussed, and while the Geneva Conventions provide a wide margin of appreciation for states to determine the scope over which such grounds can be applied, human rights standards will always remain a counterbalance to  arbitrary or unlawful restrictions.

What can IHL tell us about Deprivation of Liberty?

Under the Fourth Geneva Convention, there is a distinction between “interment” and “detention”. In the 2025 Commentary to Article 46, ICRC notes that the terms ‘internment’ and ‘assigned residence’, refer to “non-criminal measures ordered against a protected person based on the serious threat that their activities pose to the security of the Detaining Power” (see also: ICRC, 2014). The notion of detention, whether preventive or punitive, instead relates to the act of deprivation of liberty under a criminal justice framework (ICRC, 2025).

While the Convention does not provide specific grounds under which a protected person can be detained, it does provide a legal basis for civilian internment in relation to the commission of offences “solely intended to harm the Occupying Power”, under Article 68 (Pejic, 2026). According to ICRC’s 2025 Commentary, this notion refers to ‘minor offences’ whose consequences ‘are not serious for the Occupying Power’, i.e. “offences not constituting an attempt on the life or limb of members of the occupying forces or administration” or “a grave collective danger, or seriously damage the property of the occupying forces or administration or the installations used by them”. ICRC’s Commentary from 1958 further indicates that this provision was “intended to draw a distinction between such offenders and common criminals”, an interpretation in line with Article 76, which provides that protected persons must always, “if possible, be separated from other detainees” (accused of criminal offenses). Therefore, provided this distinction, internment of civilians for security offenses “intended to harm the Occupying Power”, must be carried out in accordance with Article 78, distinctively as a last resort, and only when and if “absolutely necessary, for imperative reasons of security”.

Detention based on criminal offenses should be, in principle, governed by the existing legislation of the Occupied Territory. However, under Article 64, paragraph 2 of GC IV, the Occupying Power may introduce penal regimes, provided that they are “essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them”. In this sense, the Occupying power cannot arbitrarily extend its domestic law to an occupied territory, as the International Court of Justice (ICJ) held in its 2025 Advisory Opinion on the Policies and Practices of Israel: “Israel has to a large degree substituted its military law for the local law in force in the Occupied Palestinian Territory at the beginning of the occupation in 1967” (par 136) and “the extension of Israel’s law to the West Bank and East Jerusalem is justified under any of the grounds laid down in the second paragraph of Article 64 of GC IV” (par 139). Therefore, any imposition of domestic Israeli law or regulation that does not satisfy the conditions in Article 64 is to be considered unlawful, and therefore, any internment, detention, or incarceration of civilians grounded in domestic regulations may constitute a grave breach of IHL, pursuant to Article 147 of GC IV.

Regardless of the ground for arrest, civilians interned for either security reasons or detained for criminal offenses are still protected persons under GC IV, and therefore all the basic rights granted under Articles 27, 37, as well as Articles 79-141 related to treatment, procedural safeguards, and conditions of detention should be respected (ICRC, 2015).

The Civilian Status of Palestinians

As widely recognised by the ICJ and UN Human Rights bodies, Palestinian nationals who do not participate in hostilities remain protected as civilians, under the provisions of GC IV. Particularly under Article 47, protected persons in occupied territory “shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced…”. Therefore, any act of deprivation of liberty carried out by the IDF must comply with the procedural and substantive requirements prescribed by GC IV (ESCWA, 2014).

As previously mentioned, the Fourth Geneva Convention provides obligations for states when depriving civilians of their liberty who have committed ‘criminal’ and ‘security’ offenses. The rights and privileges conferred by the Convention cannot be derogated except under exceptional circumstances as established in Article 5. However, according to ICRC’s 2025 Commentary, even if GC IV allows to derogate some rights of protected persons (including individuals deprived of liberty), it does not deprive them of that status. As such, Palestinians can only be stripped of the status of civilians only when and if they directly participate in hostilities.

Based on Common Article 3(1) to the Geneva Conventions, Articles 51§3 of Additional Protocol I (to which Israel is not a party but is cited for reference) and the principle of distinction, the protected status granted to civilians under GC IV can only cease “for such time” as their direct participation in hostilities lasts. The International Committee of the Red Cross in its Interpretative Guide (ICRC, 2009) and scholars such as Schmitt (2010), Milanovic (2009), and Azarova (2009) provide a detailed explanation of the conditions required for a civilian to lose protection against hostilities that will not be the object of discussion in this article (see also: PHPCR, 2007). However, it must be emphasised that, based on the status conferred by GC IV, and as opposed to combatants’ privileges under GC III, civilians do not have the right to participate in hostilities. Therefore, they can be subject to internment and criminal prosecution since they do not enjoy immunity from prosecution for lawful acts of war under GC III (ICRC, 2003).

The question that remains, consequently is whether the participation of Palestinians in acts that may be considered to contravene the security interests of the State of Israel, and that have been qualified as ‘unlawful combatants’, can subsequently allow stripping of their protected  status, as Israeli Authorities have attempted to do, and to treat them as a separate category of individuals not protected by the Geneva Conventions.

The Unlawful Combatants Law

In March 2002, the Unlawful Combatants Law (UCL) was adopted by the Knesset with the purpose of preventively detaining and criminally prosecuting Palestinian nationals who might be identified or suspected of having participated in hostilities against Israel, or are members of organised armed groups, and who are not entitled to Prisoner of War status under the Geneva Convention III (Diakonia, 2024). This law additionally grants authority to IDF officers to hold such individuals under administrative detention for an undetermined period, while judicial authorities can initiate criminal proceedings against any individual suspected of participation.

UCL has been subject to international criticism, particularly in relation to human rights concerns and abuses. Before October 7^th, many individuals under administrative detention often faced long waiting periods until authorities adjudicated the status of ‘unlawful combatants’, with extremely poor procedural and due process guarantees, and subject to various violations of fair trial standards under ICCPR (Bob, 2025). However, after October 7, the Law was amended to further alter procedural safeguards. These amendments include extending the time permitted to issue an incarceration order and to bring a detainee before a district court, allowing judicial review to take place without the presence of counsel, and imposing additional restrictions on access to legal representation (Saul, 2025).

Criticism to UCL has also focused on provisions that grant the IDF broad discretion to determine who may be arrested under the presumption of belonging to this category. This discretion extends to defining what types of conduct may constitute a “hostile act” and to setting the standard of proof required for such determinations. Nevertheless, it remains one of the main pieces of domestic legislation that the State of Israel has invoked to arrest Palestinians, particularly after October 7.

The law was subject to constitutional control by the Supreme Court in the Iyyad case (11 June 2008). In its judgement, the Court rejected the argument that the definition of “unlawful combatants” contradicts IHL and refrained from determining whether the GC IV applies to detainees under the UCL, as it was unnecessary since, in their view, it met the standards required by the Convention (Baruch, 2022).

While an ‘unlawful combatant’ is defined under section 7 of UCL as “a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel”, the term has no meaning under international law (Scheinin, 2007). What the Fourth Geneva Convention does consider is that civilians participating in hostilities may (1) lose protected status and be lawfully targeted by military operations for such time as their participation lasts, and (2) may be subject to interment followed participation when not targeted in military operations.

Firstly, under the Convention, protected status grants a form of immunity from attacks; i.e. civilians cannot under any circumstance be lawfuly targeted. Such protection may cease, however, under conditions previously referred to, causing the person to consequently become a lawful military target. This is a widely acknowledged circumstance that has been integrated into Israeli caselaw. In the case The Public Committee against Torture in Israel et al. v. The Government of Israel et al. (14 December 2006), the Supreme Court analysed whether a person considered “terrorist” or any organisation associated as such, should be treated either as ‘combatant’ or ‘civilian’ under international law in the context of “targeted killings” against alleged members of terrorist organisations. The Supreme Court decided that before establishing a civilian can become a lawful military target, it is necessary to obtain well-founded and verifiable information that such person is taking part in hostilities before attacking them, and that such individuals may not be physically attacked if less harmful means could be employed against them, such as arrest, interrogation, and trial.

However, the Court limited its judgment to affirming that ‘unlawful combatants’ cannot fall into the category of ‘combatants’ since they do not belong to the armed forces (section 25). It further refused to recognise that an ‘unlawful combatant’ should be treated as a civilian, and rather affirmed the existence of such notion as a third category despite not being recognised under international law (ICRC, 2006).

Regarding whether a civilian participating in hostilities can be interned, it must be highlighted that there is no formal consensus on whether GC IV extends protected status to civilians who  directly participated in hostilities and who fell into the power of the occupying state – i.e. under custody (ICRC, 2003). However, scholarly interpretations on this matter tend to acknowledge that protection under GC IV should apply.

According to Pejic (2026) and Saul (2025), there is no doubt that direct participation in hostilities by a civilian would meet the threshold of seriousness to classify it as an act ‘intended to harm the occupying power’, and therefore such person could be placed under internment, depending on the nature of their individual activities and the continuing threat that they personally pose. The treatment and procedural safeguards as protected civilians under GC IV should, by extension, be applied given that such person is no longer actively participating in hostilities However, the burden is on the detaining power to determine what conduct meets the high bar for internment – i.e. where it is absolutely necessary and for imperative reasons of security. Such notion is also held by ICRC’s interpretation of the applicability of IHL in combatting terrorism (ICRC, 2015).

In the case A and B v. State of Israel (11 June 2008), the Israeli Supreme Court found that, given that administrative detention constituted an “unusual and extreme measure”, the State is required to demonstrate by clear and convincing evidence that a sufficient security threat existed to warrant its use against individuals accused of being unlawful combatants (ICRC, 2008). Despite recognising the absence of many procedural guarantees and rights for individuals subject to the enforcement of this law, the Court found that the purpose of this law is to prevent individuals allegedly engaging in terrorism from returning to the ‘cycle of hostilities’. Consequently, such persons can be held under administrative detention provided there is ‘clear and convincing evidence’ that “even if the detainee did not take a significant direct or indirect part in the hostilities against the State of Israel, he belonged to a terror organisation and made a contribution to the cycle of hostilities in its broad sense”.

In this judgment, the Court validated the enforceability of such law in preponderation of what authorities consider ‘security concerns’ and the protection of the ‘security of the state’ to restrict some basic human rights, such as ‘meeting with counsel’, and ‘judicial review’, as recognised under domestic law. This view suggests how the judiciary system insists on making interpretation on the requirements and conditions under which human rights can be derogated, and the type of legal regime that can be applied while upholding the supremacy of domestic law in spite of their international obligations.

Conclusion

While through its caselaw, the Israeli court system refuses to apply the provisions of GC IV consistently on issues related to Palestinian territories – or rather, applies some of its provisions on a discretionary basis, it recognises the applicability of the Hague-regulations and customary humanitarian law. However, such application is not only a demonstration of a lack of willingness to abide by their obligations under international law, at least with regards to  the protection of Palestinians living under the occupation, but evidence that the applied international legal framework is insufficient to mitigate the abuses and human rights violations committed against persons deprived of liberty, particularly when domestic law ideologically and institutionally outweighs other legal regimes.

The enforcement of the Unlawful Combatants Law, and Israel’s constant refusal to recognise Palestinians arrested under this law as ‘civilians’, demonstrate the unwillingness of Israel to respect and protect the rights provided by the Geneva Conventions and the ICCPR to Palestinians residing under Israel’s occupation. And further, its adoption and enforcement methods suggest that it has been utilised not only to fight terrorism, but as a legal weapon that can be invoked against any Palestinian acting outside the control of the Defence Forces.

The type of evidence the IDF relies on to accuse Palestinians of participating in hostilities or perpetrating acts that can be criminally prosecuted often remains unknown. In many cases, this evidence is classified or confidential information that counsels do not have access to. However, this context is only a minor representation of the largest system of oppression enforced through a differentiated justice system that numerous organisations have referred to as a symptom of Apartheid.

The Israeli justice system has been proven to be insufficient and ineffective in protecting civil rights in occupied territories, and therefore it only leaves the international community to push Israeli authorities to uphold their obligations and guarantee full enjoyment of rights for all individuals, whether detained or not.

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