In response to HaMoked habeas corpus petition: State insists on its refusal to provide information on location of Gaza detainees, but for the first time since the outbreak of the war, provides an email address to coordinate meetings with lawyers

Since the start of the war on October 7, 2023, when it comes to detainees from Gaza, Israel has acted as if it were no longer a lawful state abiding by its own laws and international legal obligations. For months, Israel has been holding hundreds of Gazans in incommunicado detention in unknown locations, under conditions that are far from meeting the obligatory minimal standards, with no access to attorneys or the ICRC, and without informing their families of their whereabouts. It seems many of them are held pursuant to the Incarceration of Unlawful Combatants Law (Amendment 4 and Temporary Provision – Iron Swords), 2023, enacted following the outbreak of the war.  The Amendment – against which a High Court petition filed by human rights organizations, including HaMoked, is still pending – allows the prolonged incarceration of Gazans without any administrative proceeding or judicial review (for up to 45 days and 75 days, respectively), and currently also allows preventing a meeting with an attorney for up to 90 days.

In February 2024, the Court rejected on formalistic grounds HaMoked’s petition for writs of habeas corpus to reveal the whereabouts of dozens of Palestinians from Gaza who had been arrested following the outbreak of the war. HaMoked had no choice but to file individual petitions to demand that in each and every case the State inform the family of the petitioner’s whereabouts, the grounds for detention and that they be allowed to meet with an attorney in order to assess the detention conditions and legality. HaMoked argued that even following Hamas’ vicious attack and this unprecedented war, Israel was obligated under all relevant laws to communicate without delay the whereabouts of detainees, including those suspected of taking part in hostilities.

Time and again the State responded that the petitions should be dismissed outright, on the outrageous claim that Israel was under no obligation to provide information to the family of Gazan detainees. However, after the Court scheduled a hearing in one of the petitions (HCJ 2254/24), the State submitted on April 28, 2023 a notice informing that following an individual examination, “there is no preclusion for the petitioner to meet with a lawyer at this time, insofar as he is thus interested. Accordingly, a written application is to be sent to the [specified] email address… under these circumstances, where the petitioner can meet with a lawyer at the place of his detention, this petition… has become void and should be deleted”.

During the hearing that was held three days later, the State clarified that applications regarding other Gazan detainees could be sent via this same mail address, and that scheduling a visit will necessarily also include notice of the detainee’s whereabouts. The Court therefore ruled on May 2, 2024, that the petition had been voided and that “insofar as in future there will be cases where the remedy of a writ of habeas corpus is requested before the elapse of 90 days [from the date of arrest, during which the Unlawful Combatants Law allows denying a meeting with counsel] and after the request has not been answered – the Court’s door is open”.