العربية
HE
العربية
HE
On November 2, 2023, HaMoked and Gisha submitted to the High Court of Justice (HCJ) a petition for writs of habeas corpus in the name of 568 Palestinians from the Gaza Strip who were in Israel lawfully prior to the Hamas attack on October 7, 2023. They were subsequently incarcerated by Israel and held incommunicado for several weeks. The petitioners asked that the families of the detainees be informed of their whereabouts and the legal basis for their detention, and also that the detainees be released insofar as their incarceration is illegal. The petitioners also requested that insofar as the detainees remained incarcerated in unofficial places of detention, these locations be declared as official incarceration facilities and the detainees be allowed access to attorney to monitor the conditions of detention and its legality.
The petition concerned hundreds of Gazans who had stayed in Israel pursuant to entry permits for work or receipt of medical treatment, until their permits were sweepingly revoked following the Hamas attack on Israeli communities in southern Israel. The petitioners clarified that all those detained had been rendered illegal aliens through no fault of their own, and that their lives and wellbeing were at risk, as their return to Gaza was impossible and their safety in Israel uncertain, in view of the fact that some had already been threatened or harmed by Israeli citizens or security personnel. The organizations noted that many family members had contacted them to assist in tracing their relatives with whom all contact had been lost following the war, some of whom while they were trying to reach the West Bank out of fear for their safety.
According to unofficial reports, the petitioners wrote, apparently many Gazan laborers were held against their will by the Israeli military in undeclared and inadequate incarceration facilities in the West Bank, incommunicado and without the possibility to receive legal counsel. From firsthand accounts received by HaMoked, incarceration conditions were extremely harsh; they were held out in the open, without shade or shelter, without adequate access to food, water, bathroom facilities and medication, and while being exposed to improper treatment and even violence at the hands of soldiers. In one case at least, a released detainee stated that he and other inmates were told that they were being taken to be executed and only when they reached Ofer military camp did they realize that this had merely been psychological torture.
The organizations claimed that there was cause for concern that these were mass arrests carried out in obscurity, in a “normative vacuum”, without clear legal grounds, without documentation, in unknown conditions and in facilities that were not officially approved to function as prisons and were unsuitable for holding thousands of people. The organizations noted that there were sick people among those incarcerated, old and young, who had been lawfully present in Israel for the purpose of receiving medical treatment, and that their incarceration could put their lives at risk.
This petition was filed following two similar habeas corpus petitions: On October 22, 2023 HaMoked petitioned together with other Israeli human rights organizations in a bid to locate over 400 Gaza residents who had been incarcerated in Israel following the war. The HCJ limited the scope of this petition to just the 10 individual petitioners who formally signed the petition, and left without any recourse the hundreds of others who were listed in the petition but had not been formally included due to the urgency of the situation. Thereupon, the State announced that the competent body to address in the matter was the National Security Council (NSC). In response to HaMoked’s enquiry, the NSC disclosed the whereabouts of the 10 petitioners and also of 15 others about whom HaMoked had also inquired, but without revealing the legal basis for these detentions. The petitioners had no choice but to delete the petition. The HCJ based its judgment in this matter on its earlier judgment on HaMoked’s October 10, 2023 petition for writs of habeas corpus regarding two Gaza journalists apparently detained on October 7. In this case, the Court ruled that Israel held no obligation towards residents of the Gaza Strip, given that it was a territory controlled by a terrorist organization and did not establish what were the legal framework and duties incumbent on Israel in holding Gazans. This petition was also deleted and in an unprecedented step, heavy costs were imposed on the petitioners.
In the November 2 petition, the HCJ ordered the State to respond only in matter of the handful of petitioners about whom the organizations had applied directly to the NSC before they petitioned the Court. Regarding these petitioners, the State revealed that some had already been returned to the southern Gaza Strip, together with some 3,000 others, in the framework of two secret operations, pursuant to a Security Cabinet decision on the evening of November 2, 2023, whereby “laborers who were staying in Israel on the day the war broke out will be returned to Gaza”. Regarding one of the petitioners, who was in Israel for the purpose of receiving medical treatment before he was incarcerated, the State revealed that he was no longer in custody, having been transferred to the Palestinian Red Crescent on October 22, 2023. As to another petitioner, a minor who arrived in Israel on a “single day” entry permit to receive medical treatment, the State announced he had been released to the West Bank, “outside any legal obligation”. Two others, the State announced, were still in custody: one was held on instructions of the Israel Security Agency (ISA), and, as Israel admitted, for days he had been held due to “the exceptional turn of events… without any legal authorization, but his incarceration has been made legal pursuant to Regulation 17 of the 2023 Defence (Emergency) Regulations (Iron Swords) (Custody and Removal of Illegal Aliens Who Are Residents of the Gaza Strip” – that is, his detention was legalized after the fact, by virtue of revisions to the Regulations, which were introduced following the filing of the petition. As to another person, the State informed that he had been placed in detention pursuant to the 2002 Incarceration of Illegal Combatants Law.
On November 13, 2023, the Court deleted the petition on the grounds that it “has been exhausted and made redundant insofar as it concerns the first remedy” [i.e., the locating of inmates and their release]; and as to the other remedies, insofar as they concern the two petitioners who are still in custody pursuant to various legislation, the petitioners retain their right to petition the Court on their behalf.
In sum, never before has the Court handled with such blatant contempt petitions for writ of habeas corpus and families’ basic right to be informed about their loved ones’ whereabouts, regardless of the inmate’s place of origin. Apparently, according to the HCJ, Israel’s obligations under both international and domestic law vanish in the current war, and the Court’s oversight vanishes as well.
