Center for the Defence of the Individual - High Court of Justice rejected HaMoked’s petition to reveal the whereabouts of 62 Gazans incarcerated in Israel and thus again sanctioned protracted incommunicado detention
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חזרה לעמוד הקודם

High Court of Justice rejected HaMoked’s petition to reveal the whereabouts of 62 Gazans incarcerated in Israel and thus again sanctioned protracted incommunicado detention

On December 12, 2023, HaMoked petitioned the High Court of Justice (HCJ) to issue writs of habeas corpus for 62 Palestinians from the Gaza Strip who were detained by Israel – some inside Israel or the West Bank, some in Gaza – whose place of detention remains unknown. HaMoked demanded that the State disclose the detainees’ current whereabouts, which authorities are holding them, the law underlying their incarceration, and the circumstances surrounding the putative release of some of them. HaMoked also requested the release of the detainees insofar as they were held unlawfully, or in locations that were not official incarceration facilities. Additionally, HaMoked demanded the petitioners be allowed to meet lawyers to review their conditions of detention and its legality.

The detainees, two of them minors, were arrested following the outbreak of the war on October 7, 2023. HaMoked wrote that from the start of the war, hundreds of families of Gazan detainees called for assistance but that despite persistent efforts vis-à-vis the various Israeli incarceration authorities, HaMoked succeeded in tracing just a few of the detainees, most often following legal proceedings and after a protracted period of time. The whereabouts of countless others, among them the current petitioners, remain unknown, contrary to Israel’s international-law obligations. HaMoked stressed that “these detention facilities in which residents of the Gaza Strip are held, are de facto outside the rule of law”. Testimonies of those released suggest that the incarceration conditions are extremely harsh and fall far below the minimum standard required.

All of the 62 detainees named in the petition constitute formal petitioners, this after the Court dismissed earlier habeas corpus petitions filed since the war broke out on the grounds that most of the detainees listed in the petitions were not formally party to them – due to the urgency involved and the difficult circumstances arising from the war. The Court allowed these previous petitions only with regards to the few whose formal participation in the legal action was possible, leaving hundreds of others in incommunicado detention with no remedy under worrying conditions, and their families in the dark regarding their loved ones’ fate.

The State was required to respond to this latest petition on January 4, 2024. However, it requested numerous extensions, claiming they were required “in order to receive approval from senior officials of the respondents to the draft response”. On January 23, 2023, the State finally submitted its response, which did not address the substantive issues, but merely demanded the petition’s summary rejection. The State added that if the petition was not summarily rejected, the State requested an additional 21 days to respond on substantive grounds. However, on February 18, 2024, the Court summarily rejected the petition regarding all of the 62 individual petitioners. Again the Court unreservedly adopted the State’s position and ruled that “the petition in hand concerns different petitioners whose matters vary one from the other. The factual basis regarding each of the petitioners is different, and consequently the normative framework which applies to them could be different”. The Court added that “the matters of different petitioners should not be brought together in the same petition”, given that “the factual and legal infrastructure necessary for their substantiation is different. Such is the case even if they share a common issue”.

On these flimsy formalistic grounds, the Court again refused to address the disappearance of hundreds of people from the Gaza Strip, leaving dozens of families with no remedy, anxious about the fate of their loved ones, and condemned 62 detainees to remain indefinitely without minimal legal assistance.