Center for the Defence of the Individual - Individual habeas corpus petitions to locate incarcerated Gazans held incommunicado and in unknown locations by Israeli forces
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חזרה לעמוד הקודם

Individual habeas corpus petitions to locate incarcerated Gazans held incommunicado and in unknown locations by Israeli forces

On February 18, 2024, the High Court of Justice (HCJ) rejected HaMoked’s petition for writs of habeas corpus on behalf of dozens of Palestinians registered as Gaza Strip residents who had been detained by Israel following the outbreak of the war on October 7, 2023, who have been held incommunicado and in unknown locations. This was the third mass habeas corpus petition filed by HaMoked on behalf of Gaza detainees. The HCJ dismissed the petition in its entirety on a flimsy formalistic grounds, whereby “the matters of different petitioners should not be brought together in the same petition”.

HaMoked was therefore compelled to begin filing individual petitions for writ of habeas corpus, with powers of attorney signed by the detainees’ relatives (following the Court’s ruling in an earlier petition of November 2023). Each petition demands that the State inform the family of the petitioner’s whereabouts and the legal basis for arrest; the circumstances of his release or transfer to any other entity, if such happened; and that he be allowed to meet with an attorney in order to verify the legality and conditions of the detention.  HaMoked asserted that even during this difficult and unprecedented war, Israel is obligated under every law, international and domestic alike, to provide without delay a notice on the whereabouts of every detainee, regardless of whether they are suspected of taking part in hostilities or attacks against civilians. The petitions note that Israel now holds several hundred detainees for indefinite periods of time and without ensuring their most basic rights, primarily the rights to due process, to counsel and to judicial review. HaMoked argued that incommunicado detention at unknown locations significantly increases the risk that detainees will be subjected to torture or cruel, inhuman or humiliating treatment and that such detention in itself amounts to inhuman treatment. HaMoked reasserted that testimonies and media reports indicate that the Israeli security forces’ conduct is far from ensuring the bodily integrity and dignity of Gazan detainees. HaMoked added that the Rome Statute defines enforced disappearances as a crime against humanity.   

In its responses to nine of the petitions, the State argued that the petitions should be dismissed outright. The State divulged no information on the whereabouts of the detainee, but that “these detainees are held pursuant to Israeli law, either pursuant to the Incarceration of Unlawful Combatants Law of 2002, or pursuant to criminal detention orders; and as a rule, they are first held in military detention facilities during their initial [period of] incarceration and the examination of the need to continue it; and insofar as their continued incarceration is needed, there are slated to be transferred to incarceration in facilities of the Israel Prison Service”. Each of these responses cites the Alwahed judgment, in which Justice Sohlberg ruled soon after the war broke out that Israel is not obligated to provide information to the families of incarcerated Gazans. Oddly, the judgement does not contain any normative legal framework for this determination, relying instead on a Biblical passage:

As our ancient enemies have said: “We have heard that the kings of the house of Israel are merciful kings” (Kings A 20; 31); The possibility given to the relatives of detainees from the Gaza Strip, in the past, in completely different circumstances, who had been detained in the course of an armed conflict, to request information about them, is nothing but an act of mercy, offered ex gratia, exercisable by the security forces at their absolute discretion.

In four other petitions, the State submitted a substantive response: in one case, it was stated that there was no indication of the arrest or incarceration of the petitioner (the petition is pending further inquiries); in another case, it was stated that the petitioner had been released (and so the petition was deleted); in the case of a detainee who was arrested in the West Bank and is not defined as an “unlawful combatant”, it was stated that he was held in Anatot military incarceration facility, and he was allowed to consult with an attorney. The fourth, devastating case, is a habeas corpus petition of an elderly, bedridden woman who was last seen when the military came to the family home near Shifa hospital in the Gaza Strip. The military arrested the men and forced the women to flee, promising to take the helpless grandmother to Shifa hospital. Family members later found her body in the ruins of their home; the petition was therefore deleted.  

It should be noted that on February 19, 2024, human rights organizations, including HaMoked, petitioned the HCJ against the Incarceration of Unlawful Combatants Law (Amendment 4 and Temporary Provision – Iron Swords), 2023, enacted following the outbreak of the war, pursuant to which most of the detainees from Gaza are held. In the petition, the petitioners argue that the amendment, valid for four months and renewed periodically, radically altered the original Law to allow the incarceration of inmates without any administrative proceeding for a maximum period of 45 days, instead of 96 hours as was before, and without any judicial review for up to 75 days, instead of about two weeks, as previously stipulated. In addition, the Amendment initially allowed preventing a meeting with an attorney for up to 180 days, and later revised to stand at 90 days, but in practice, even after 90 days, meeting with an attorney is not enabled. The petition is still pending.