العربية
HE
العربية
HE
Over a year ago, on October 7, 2023, a horrific war broke out with the Hamas massacres in the southwest of Israel and the abduction of hundreds of civilians and soldiers to Gaza, about half of whom are still held hostage. Over the past year, Israel has conducted massive bombing and shelling in the Gaza Strip, and a ground operation in which tens of thousands of Palestinians have been killed, and hundreds of thousands displaced and their homes destroyed. Israel has detained thousands of Palestinians in the Gaza Strip, holding them in inhumane conditions far below the required minimum standard, with systemic violence and abuse. The International Committee of the Red Cross (ICRC) is denied access to all Palestinian detainees, those held in the Gaza Strip, and those in incarceration facilities in Israel and the West Bank.
The detention of Palestinians from the Gaza Strip constitutes a mass enforced disappearance. Israel holds hundreds of people for long periods of time incommunicado, in unknown locations, without administrative proceedings or judicial review, without access to counsel, and without providing any information about the fact and location of detention to the International Committee of the Red Cross (ICRC) nor to any other entity, and without supplying the families with an address for receiving reliable information. All this in systematic and grave violation of its obligations under international law.
Furthermore, in the framework of efforts to trace Gazans presumed to be held in Israeli custody, HaMoked has dealt with dozens of cases in which Israeli authorities are unable to locate Palestinians who were last seen in the custody of Israeli troops. It appears Israel does not maintain any mechanism for recording the fate or circumstances of Palestinians who were in the hands of military forces in Gaza, in blatant disregard of legal obligations toward detainees and the civilian population under the laws of war.
Detention as “Unlawful Combatants”
The framework Israel has used to hold detainees from the Gaza Strip is its Incarceration of Unlawful Combatants Law, 5762-2002, and subsequent amendments. The law defines unlawful combatant 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, where the conditions prescribed in Article 4 of the Third Geneva Convention of 12th August 1949 with respect to prisoners-of-war and granting prisoner-of-war status in international humanitarian law, do not apply to them”.
Immediately after the outbreak of the war, the Knesset passed a temporary order amending the Unlawful Combatants Law to enable holding detainees for 75 days before the detention must be confirmed by a judge, and for the first 180 days with no access to an attorney. These time periods have subsequently been amended several times. The most recent amendment allows for holding Unlawful Combatants for 45 days before they must be brought before a judge and before they can meet with an attorney. It should be noted that “unlawful combatant” is a category that does not exist under international law, and therefore, Israel’s obligations in holding these people are those of an occupying power holding protected people in custody.
Thus Gaza detainees have been held for prolonged periods of time isolated from the outside world and without judicial review. All this, without the High Court of Justice (HCJ) addressing the State’s obligation not to hold prisoners incommunicado and in unknown locations, neither in the framework of petitions for writs of habeas corpus nor in the framework of the petition against the amended law regarding unlawful combatants.
As of November 1, 2024, 1,627 people were held as Unlawful Combatants in the Israel Prison Service, and an additional unknown number in military detention facilities.
Tracing detainees during the October 2023 war
For over thirty years, HaMoked has operated a hotline to trace Palestinian detainees from the West Bank and the Gaza Strip. HaMoked is practically the only entity through which Palestinians can find relatives in Israeli detention, as no information is provided directly to families. Instead Israel has maintained an arrangement to provide families with this information via HaMoked, within 24 hours from the submission of the request to the military. Additionally, before the war, Israel would provide lists of inmates to the ICRC, and allowed its representatives to visit incarceration facilities. With the outbreak of the war, Israel denied any information or access to the ICRC – a High Court petition against halting ICRC access, filed by Israeli human rights organizations, including HaMoked, is still pending. Furthermore, while Israel continued to respond to HaMoked tracing requests regarding West Bank Palestinians, it refused to provide any information regarding Gaza detainees, in violation of its basic obligation to update the ICRC and establish an information center to supply families with reliable information about their loved-ones’ arrest and whereabouts.
The result of all this is that there was no way to trace Gazans in Israeli custody, whether they were arrested in Gaza or in Israel. Only in May 2024, in response to multiple HaMoked High Court petitions, has it been possible to trace inmates, but only partially and after long weeks. This, in violation of the Fourth Geneva Convention, which includes the obligation to record every arrest of a protected person, and the obligation to establish an information center to provide information about detainees, deceased persons and people who have lost their home. The High Court of Justice has deviated from decades of its case law and has upheld without reservation Israel’s disavowal of its international legal obligations regarding Gaza detainees and has dismissed dozens of petitions in this matter.
Only following HaMoked’s determined legal battle to trace hundreds of Gazans incarcerated since the outbreak of the war, did the State supply an email address via which it is possible to coordinate a visit by an attorney to an inmate. This now constitutes the only avenue for tracing the whereabouts of Gaza detainees. The reply is delivered by a dedicated military coordination control center – unless the inmate is banned from meeting with an attorney, as is the case for all Gaza detainees for the first 45 days of their detention.
In many cases, the arrangement is implemented as expected, and a request to set a meeting of an attorney with a person presumed to be incarcerated leads to tracing the inmate and communicating this fact to their family. From May 2024, when implementation of the arrangement began, and until the end of October 2024, HaMoked filed 901 requests for a meeting with an attorney, and in 501 of them the military revealed the whereabouts of the detainee. It should be noted that in most cases where HaMoked’s attorneys met Gazans in custody who had been thus traced, it turned out that the inmates did not know where they were being held nor where they had been held previously.
The unaccounted for: the response of “no indication of arrest”
However, in this period, from May to October 2024, in 400 of HaMoked’s requests, the military replied that there was “no indication of arrest or detention”. In some of the 400 cases, it is possible that the person was not in fact arrested – many families turn to HaMoked in their frantic search for their loved ones, having lost contact with them during the mass displacement or bombings of inhabited buildings by the Israeli military. However, in many cases, the missing are people who were last seen near Israeli soldiers or in their custody in the Gaza Strip, while they were being questioned, held at a checkpoint and so on. In other cases, these are people who were seen in Israeli incarceration facilities by former inmates who told the family they had encountered their loved ones there.
The question marks surrounding a response of “no indication of arrest or detention” are highlighted by the following case where a resident of Gaza returned to his family after he was released from military custody lasting from May 28, 2024 to August 2, 2024 (HaMoked case no. 133658). He told his family that he had been held by the military inside Gaza and transferred from one location to another. In response to HaMoked’s request to trace him, the military replied on June 24, 2024 – at which time we now know he was in Israeli custody – that there was “no indication of arrest or detention”. Furthermore, the media documentation of the Israeli military’s prohibited use of Gazans as human shields strengthens the concern that the military does not duly record those in its custody, who might even end up dead in such circumstances without any documentation of the fact.
Habeas corpus petitions to the High Court of Justice
When the military replies there is “no indication of arrest or detention”, and insofar as the family has clear information indicating that the person was last seen in the custody of Israeli security forces, HaMoked petitions the HCJ for a writ of habeas corpus. The petitions are filed pursuant to the HCJ judgment of May 2, 2024, delineating the arrangement for coordinating meetings with counsel. In the petitions, HaMoked demands that the military reveal what entity holds the petitioner, where and under what law; if they were released and transferred to another entity, to provide all relevant details, including when, where and the petitioner’s current location and condition. In addition HaMoked demands that the State reveal whether the petitioner has died while in military custody and under what circumstances; and insofar as they are dead, to divulge where and by whom the body is held.
From May through October 2024, HaMoked has filed 24 petitions for writs of habeas corpus concerning 30 individuals – 28 men in a wide range of ages, a 17-year-old youth and a 5-year-old girl – following the response of “no indication of arrest or detention”. Two of the petitions led to the petitioner being traced, after it turned out there was an error in the processing of the tracing request (one of these petitions was deleted and the other is still pending). Another 16 petitions were rejected without any information emerging regarding the fate of the petitioners; in the framework of some of these proceedings, the State conducted on the Court’s instruction some flimsy technical enquiries to try to trace the petitioners, which led to nothing. One petition was deleted at the request of the family, who received convincing information that their son was held in Ketziot military detention facility. The remaining 5 petitions are still pending;
A clear case where a petition was rejected despite the indisputable arrest of the petitioners is the case of the Hijazi family. Israeli forces detained six members of the family in Rafah on 28.5.2024, along with several other relatives from the extended family. The other relatives were traced following a petition on their behalf and after the ban on their meeting with an attorney expired. But the six family members have not been traced. Although the arrest cannot be disputed, the Court laconically rejected the petition on their behalf based on the State’s claim there was “no indication of arrest or detention”, and on the grounds the State benefited from “the presumption of good governance”. This is just one of several cases in which there is clear evidence of the petitioners having been in the military’s custody, yet the Court makes no serious attempt to get to the root of the disappearances, and does not express the slightest doubt as to the military’s conduct.
The disappearance of a 5-year-old girl and two elderly men
All of the disappearances on which HaMoked petitioned are worrying, but the most alarming is the case of the Ajur family, a father and his 5-year-old daughter on whose behalf HaMoked petitioned the HCJ on August 29, 2024. The two were last seen on February 24, 2024, after soldiers raided their home located behind Shifa hospital, where the child, her parents and the father’s uncle were present. Soldiers opened fire, wounding the child and her mother. Soldiers took the girl to another room, saying they were going to treat her wounded shoulder. They forced the mother to leave her and move south with other women, leaving behind her daughter and spouse. The uncle was also instructed to leave the house and he was later taken in for questioning with the other men of family. Nothing is known of the child’s fate from that time and there is grave concern for her life (HaMoked handled a similar case in which an ill and elderly woman was left with soldiers when her family was ordered to leave the area, and she was later found dead in unknown circumstances). When members of the Ajur family returned to the place after some two weeks, they discovered the home had been shelled. The family received two reports that the father had been seen in incarceration facilities inside Israel. The family contacted HaMoked, which contacted the military coordination center, which responded on July 24, 2024 that there was no indication that the child and her father were held by Israel.
In this petition, as in the others, after the State responded that there was “no indication of arrest or detention” of the petitioners, HaMoked maintained that the child and her father had undoubtedly been held by the military. Therefore, the Court instructed the State to make additional enquiries and to check whether there was any documentation of the arrest operation or the possibility of unlogged incarceration or death in custody. The State responded yet again that there was “no indication” the petitioners had been held or arrested by Israel and therefore there could be no indication they had died in custody.
In the short judgment of October 13, 2024, the HCJ rejected the petition based on the State’s claim that there was “no indication” to the petitioners having been held “by the security forces in the past or present”, that is, throughout the period from the date of the purported date of arrest, and this given that the State benefited from “the presumption of good governance that has not been contradicted”. It should be noted that the Court did not express any interest in the fate of the child and did not instruct the military to record such incidents in future.
In two other cases, the HCJ rejected the petitions for writs of habeas corpus for elderly men in their 70s. In one of the cases, a 75-year-old was taken to a military base in Jabalya on May 24, 2024, and as far as is known, was held there until the base was cleared. Some of those held there were arrested and others released, bu the man’s family heard nothing of him. On June 3, 2024, his relatives found his personal items, including his identity cards, in the empty base. On August 1, 2024, HaMoked’s petition on his behalf was dismissed, again on the grounds that according to the State, there was “no indication” he had been arrested or held by Israel, and that the State benefitted from the presumption of good governance (HaMoked case no. 133363). In a similar case, a 76-year-old man with terminal cancer was last seen by his family when he was arrested by the military from his home in Khan Yunis. The petition was dismissed on the same grounds on September 15, 2024 (HaMoked case no. 134326).
Israel’s abdication of responsibility
All of these cases indicate a systemic failure of Israeli forces to document the holding of people in custody for whatever length of time and of their circumstances during their holding. This failure is especially severe given the non-communication of such information to the ICRC, the denial of ICRC access to incarceration facilities and the prolonged ban on inmates’ contact with the outside world, for long weeks, and particularly in view of the numerous reports about the military’s unacceptable treatment of the civilian population in Gaza, and the severe deterioration in the conditions of all Palestinian security inmates. Combined, all these lead to a situation where it is impossible to trace and learn the fate of people who were seen in the custody of the military, and this in turn breeds unacceptable treatment of those held in custody, and frustrates any possibility of investigating suspicions regarding torture and severe violation of rights. There is grave concern that the military opts not to record soldiers’ actions in the Gaza Strip or conceals such information. Among other things, this practice enables the prohibited use of people in custody, uninvolved and otherwise, to perform military functions, as documented in media reports.
Given the absence of judicial intervention in the individual cases, on November 6, 2024, HaMoked wrote to the Military Advocate General to demand an inquiry into the military’s conduct that leads to the disappearance of Gazans who were held in custody by the military. HaMoked noted that the various cases indicate that the security forces have failed in their duty and in specific cases abandoned to their fate helpless people, elderly, children and the infirm. The absence of comprehensive records about the holding of people in custody for however brief a period, leads to a situation of lawlessness where the troops on the ground are de facto allowed to do as they please with people they capture, without there being any possibility to discover the fate of the captives or investigate suspicions of torture and other unacceptable acts towards them. The MAG has yet to respond to this letter.
HaMoked calls on the military to uphold its duties under the laws of war and to diligently record every individual held in its custody, including those not deemed detainees, or those held briefly as well as those who died in its custody; to hold people in designated locations dedicated for this purpose, even when in proximity to a combat area; to establish a central database to collate all such information or to provide such information to the ICRC. If the military does not acknowledge it is bound by these duties, it is up to the HCJ to order the military to act accordingly and clarify to the military that it is subject to international law, and in particular the laws of war.
