Tracing Detainees

Every year the Israeli military detains thousands of Palestinians in the Occupied Palestinian Territories (OPT). The military does not notify the families of the detention and place of detention, and does not even provide an official contact point for families to make direct inquiries about their loved-ones.

Detainees' rights – among them the right to due process, including the right to legal representation, the right to adequate holding conditions, the right not to be subjected to torture or inhuman and degrading treatment and the right to family visits – are among the most well-established of human rights, but the primary condition for their realization is that the place wherein the detainee is being held will be known, allowing his lawyers and relatives to visit him, appraise the treatment he receives and act for the realization of his rights. Beyond that, the knowledge of a person's place of detention has deep emotional value to his family.

The right to notification of the detention and holding place is a basic right of both the detainee and is family. The demand that the authorities immediately notify where a detainee is being held or allow that he do so himself, is self evident in any place where human rights are respected.

The military legislation in the OPT stipulates in the Order regarding Security Provisions that "Upon an individual's arrest, a notice will be sent without delay as to the fact of his arrest and his location to a relative, unless the detainee requested otherwise". The Order further stipulates that "In accordance with the detainee's request, the notice [...] will also be sent to a lawyer named by the detainee". The obligation to immediately give notice of place of detention is established also in Israeli legislation – the Prisons Ordinance and the Police Ordinance. Nonetheless, despite the authorities' legal obligation to inform families of the whereabouts of the detainee, Israel does not uphold its duty, and on top of that, it refuses to allow families to inquire with the authorities directly, and even forbids security detainees from phoning their families.

In almost all cases, the only way families can discover the whereabouts of their loved-ones is through HaMoked. Every year, HaMoked receives thousands of requests to trace detainees, because the authorities who hold detainees notify nothing to the families, not even when the detainees are transferred from one detention place to another. The Palestinian families' distress is even greater given the fact that Israel incarcerates prisoners and detainees from the OPT inside Israel, thereby breaching international law, which prohibits the transfer of prisoners and detainees to the territory of the occupying power.

Since its inception, HaMoked has been aiding families of Palestinian detainees to receive current information on their loved-ones' place of detention in the shortest time possible. In 1989, HaMoked filed, via the Association for Civil Rights in Israel, its first petition to compel the military to uphold its duty and notify the family of a person detained in the OPT of his whereabouts. Following the petition the military formulated a procedure – which was entered as a judgment of the court – to improve the methods of notification of detainees' families, inter alia, by sending notification postcards and by the daily publication of detainees lists. In the framework of the arrangement, achieved through the petition and by discussions between HaMoked and the Attorney General, HaMoked's right, as a public body, to apply on behalf of families to the Military Incarceration Control Center, established to comply and provide information on detainees' whereabouts.

Following the Hirbawi petition, filed by HaMoked to the High Court of Justice (HCJ) in 1995, the control center began compiling all information on detainees and their location from the various agencies holding detainees – the military, the Israel Prison Service (IPS), the Israel Security Agency (ISA) and the police – and provide up-to-date information on the detainee's place of detention within 24 hours from the time of request. HaMoked regularly monitors the control center's operation and tries to instill an exceptional emergency procedure in cases of minors, woman and wounded persons, who are entitled to special protections and conditions.

Mostly, the control center responds within a day or two from the time of HaMoked's inquiry. Still, in some cases many days pass until the detainee's whereabouts are communicated, whether because of lack of correlation between the place of detention and the listing in the computerized systems, because the detainee has never been registered or because the agency holding him refuses to reveal his whereabouts.

At times, HaMoked is forced to submit petitions for writs of habeas corpus, to compel the state to disclose the whereabouts of the detainee and justify the the legality of the detention. These petitions serve as a check against the state's power to exploit the option of arrest in an arbitrary and uncontrolled manner, and they are lodged in cases where there is high probability that the person has been arrested but cannot be traced. It should be noted that two habeas corpus petitions filed by HaMoked in an attempt to trace Palestinian residents of the OPT who had gone missing, led to the exposure of the secret prison, Facility 1391.

Although in the present detainees' families can be aided – via HaMoked – by the control center to receive information about their loved-ones, this course does not meet the legal requirements and the state's undertaking to the Supreme Court. Israel continues to refrain from informing of its own initiative and "without delay" about the detention and whereabouts of persons.