Practice Relating to Rule 128. Release and Return of Persons Deprived of Their Liberty
Section A. Release and return without delay
Israel’s Manual on the Laws of War (1998) provides: “In any event, at the end of hostilities, the prisoners must be returned to their State of nationality.”
Israel’s Manual on the Rules of Warfare (2006) states: “When hostilities end, prisoners-of-war must be repatriated.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
In its judgment in the A. v. State of Israel case in 2008 concerning the legality of national law with regard to unlawful combatants, Israel’s Supreme Court stated:
46. … [D]etainees under the Internment of Unlawful Combatants Law [(2002)] may remain in detention for prolonged periods of time. Notwithstanding, as we shall explain immediately, the purpose of the law and the special circumstances in which it was intended to apply, lead to the conclusion that the fundamental arrangement that allows detention orders to be made without a defined date for their termination does not depart from the margin of proportionality, especially in view of the judicial review arrangements that are provided in the law.
As we have said, the purpose of the Internment of Unlawful Combatants Law is to prevent “unlawful combatants” as defined in section 2 of the law from returning to the cycle of hostilities, as long as the hostilities are continuing and threatening the security of the citizens and residents of the State of Israel. For similar reasons the  Third Geneva Convention allows prisoners of war to be interned until the hostilities have ended, in order to prevent them returning to the cycle of hostilities as long as the fighting continues. Even where we are concerned with civilians who are detained during an armed conflict, international humanitarian law provides that the rule is that they should be released from detention immediately after the specific ground for the detention has elapsed and no later than the date when the hostilities end. …
50. As we said at the outset, the appellants, who are inhabitants of the Gaza Strip, were originally detained in the years 2002–2003, when the Gaza Strip was subject to a belligerent occupation. At that time, the administrative detention of the appellants was effected by virtue of the security legislation that was in force in the Gaza Strip. Following the end of military rule in the Gaza Strip in September 2005 and the cancellation of the security legislation in force there, on 20 September 2005 the chief of staff issued detention orders for the appellants under the Internment of Unlawful Combatants Law. …
51. In their pleadings … it was argued [by the appellants] that according to the provisions of the Fourth Geneva Convention, Israel should have released the appellants when the military rule in the Gaza Strip ended, since they were inhabitants of an occupied territory that was liberated. …
52. … The end of military rule in the Gaza Strip did not oblige Israel to release automatically all the detainees held by it who are inhabitants of the Gaza Strip, as long as the personal threat that the detainees represented continued against the background of the continued hostilities against the State of Israel. This conclusion is clearly implied by the arrangements set out in articles 132–133 of the Fourth Geneva Convention. Section 132 of the aforesaid convention provides the general principle that the date for the release of detainees is when the grounds of detention that originally led to their detention no longer exist. The first part of article 133 of the convention, which relates to a specific case that is included within the scope of the aforesaid general principle, goes on to provide that the detention will end as soon as possible after the hostilities have ended. Article 134 of the convention, which concerns the question of the place where the detainees should be released, also relates to the date on which hostilities end as the date on which detainees should be released from detention. Unfortunately, the hostilities of the terrorist organizations against the State of Israel have not yet ended, and they lead almost on a daily basis to physical injuries and mortalities. In such circumstances, the laws of armed conflict continue to apply. Consequently it cannot be said that international law requires Israel to release the detainees that were held by it when the military rule in the Gaza Strip came to an end, when it is possible to prove the continued individual threat presented by the detainees against the background of the continued hostilities against the security of the state.
In its judgment in the Said case in 2008, concerning the continued detention of a Palestinian from Gaza under the Internment of Unlawful Combatants Law (2002), as amended in 2008, Israel’s High Court of Justice stated:
26. An internment order under the Internment Law is not limited in time in advance. It is subject to periodic judicial review (section 5 of the Law). This review is intended to examine, the first time it is held, whether grounds exist for the internment. In subsequent reviews, which are made once every six months, the court must examine whether the release of the internee will harm state security, or if there are special reasons to justify his release (section 5(c) of the Law). …
28. … [T]he court making the judicial review of detention under the Internment Law may limit and shorten the period of detention, giving consideration to the quality and intensity of the evidence brought before it regarding the security threat posed by the detainee, and giving consideration to the time that has passed since the order was made. The judicial review is intended to ensure that the absence of a date for termination of the internment order made under the Law does not disproportionately violate the detainee’s right to personal liberty, and that detainees under the Law are not held for a longer period of time than is necessary when taking into account significant security considerations.
In its judgment in the A. v. State of Israel case (No 4) in 2009, concerning the legality of national law with regard to unlawful combatants, Israel’s High Court of Justice stated:
The main difficulty in approving a detention order is that the detention orders pursuant to the law [Internment of Unlawful Combatants Law (2002)] are not required to include a defined date for the conclusion of the detention. The law albeit notes that the detention shall not continue after “the cession of the hostilities”, but clearly, knowing the history of the struggle against terrorism, it can be said that at this time, at very least, it appears to be an abstract point in time (see also
“A”, at par. 46 A. v. State of Israel case
, 2008]). In this situation, persons who have been declared as unlawful combatants are liable to find themselves in detention for long periods, and in fact, for an unlimited period of time. The partial solution provided in the law for this difficulty is found in the periodic judicial review of the extension of the detention order, and the court’s ability to limit and shorten the detention period in accordance with the evidence brought before it, its intensity, quality and currency, and in light of the period of time during which the detainee has been detained pursuant to the detainment order. In this fashion, prevention of disproportional impingement upon the detainee’s right to liberty should be ensured (see also
: CrimA 7446/08 Said v. The State of Israel
(unpublished, 7 November 2008)).
[emphasis in original]