Dear friends

“Hard cases make bad law,” U.S. Supreme Court Justice Oliver Wendell Holmes wrote. I think of this quote every time we get a judgement from Israel’s High Court of justice in these terrible times.

The war that erupted on October 7 with the massacres perpetrated by Hamas in southern Israel and Israel’s massive military response sowing death and destruction in the Gaza Strip, is an incredibly difficult time for so many of us, including for human rights defenders here. The work of HaMoked’s legal department is challenging in “normal times” (if half a century of occupation can be termed normal), but these days cast a dark shadow such as we’ve never known.

An important part of our work concerns demanding basic rights for Palestinians held by Israel who are classified as “security inmates”. Normally we receive information on their incarceration conditions both from families after they visit and from the detainees and prisoners themselves when our lawyers visit them. Since the war began, however, there have been no family visits, and it is almost impossible for lawyers to visit prisoners. As a result, these people are completely cut off from the outside world. We have received disturbing reports about a drastic deterioration in the conditions of these people: severe overcrowding, long periods without electricity and running water, confinement to their cells almost all of the time, with limited access to food and necessary medical care. In response to these reports, we did what we do best: we petitioned the High Court of Justice, together with partner organizations.

We were shocked that the Court saw no need to look into our allegations, completely ignoring the complete isolation of the inmates from the outside world, making it difficult to get the full picture. Instead of demanding answers from the state, the Court focused on procedural matters and various threshold claims to quickly reject our petition, without addressing the basic rights of inmates, which according to established case law must also be respected during times of crisis. 

We witnessed the same disturbing attitude from the Court in our habeas corpus petitions regarding prisoners whose whereabouts were unknown. Over the past month, hundreds of families from the Gaza Strip have contacted HaMoked, despite all the difficulty this entails, requesting, even begging that we help them find loved ones who were in Israel before October 7 with work permits or permits to receive medical care, whose families had not heard from them since the war broke out.

The legal basis is clear: Israel cannot hold people incommunicado. The obligation to notify relatives of their whereabouts applies both in routine times and during times of emergency. Previously, the Court always took habeas corpus petitions very seriously, handling them quickly and efficiently. Now, however, the High Court of Justice issued two judgements devoid of any legal basis, ruling that Israel had no obligation towards people it held from the Gaza Strip. Only after we petitioned a third time, did the State provide an address to supply information on the hundreds of people on whose behalf we petitioned, and also decided to release them and thousands of others who had apparently been held with no legal basis.

“The Court sits among its people,” then-Chief Justice Aharon Barak once said. It is sad but not surprising that among the broader public in Israel there is currently little sympathy for Palestinians’ rights, and even many voices calling for vengeance and collective punishment of all residents of Gaza, following Hamas’ atrocities. But I confess that I was surprised by the extent that the Court has also been swept up in this same, dangerous climate.

Precisely at this time, we at HaMoked are determined to continue our work and to fight for basic human rights, even in the impossible situation in which we all find ourselves.

Wishing all of us better times, which will inspire better legal rulings.

Attorney Daniel Shenhar
Director of HaMoked’s Legal Department