Israel high court hears first case challenging secret detentions in Gaza war

JERUSALEM - Israeli government lawyers defended the secret detention of Palestinians from Gaza before the country’s Supreme Court on Wednesday, arguing that the state is not required to disclose where it has held potentially thousands of detainees apprehended during the war.

The hearing, which lasted less than an hour, was the first on Israel’s incarceration of Palestinians from the Gaza Strip since the conflict started on Oct. 7. It was held after an Israeli rights group, HaMoked, brought a petition to locate a Palestinian medical worker detained by Israeli forces during a raid on Nasser Hospital in southern Gaza in February.

The petition, for a writ of habeas corpus, is part of a broader legal effort by rights groups to figure out where and under what legal framework Israel is holding the Palestinians its security forces have rounded up during military operations in Gaza. The case, while technically centered on the fate of one man, could also have sweeping implications for Israel’s commitment to rule of law during wartime, as it faces global scrutiny over the conduct of the war, including by top international courts.

“There is no obligation to provide this information,” Ran Rosenberg, a lawyer for the state, said at the hearing Wednesday. He cited an earlier ruling by a high court justice saying the state considers Gaza “enemy territory” and has no duty to alert the families of detainees to their whereabouts.

Thousands of Palestinians have gone missing in Gaza since the start of the war. Some of the missing are still buried under the rubble, while others have vanished into Israel’s opaque military detention system. HaMoked, which provides free legal aid to Palestinians, said it hoped the hearing would force the court to rule on the detentions and compel authorities to allow the detainees access to lawyers.

“What is the legal basis for detention?” Nadia Daqqa, a lawyer from HaMoked, asked the court Wednesday. “There is no explanation as to why we can’t know where the person is held.”

Israel launched its military campaign in Gaza after Hamas-led militants staged a brutal attack on Israeli communities near the border, killing about 1,200 people and kidnapping more than 250 others. At least 34,000 people have been killed in Gaza, according to the local Health Ministry, which does not distinguish between civilians and combatants but says the majority of the dead are women and children.

The Israel Defense Forces said Wednesday that it apprehends terrorism suspects in Gaza as part of its effort to “dismantle Hamas’s military capabilities.”

“Individuals suspected of involvement in terrorist activity are being detained and questioned,” the IDF spokesperson’s unit said in a statement. “Individuals who are found not to be taking part in terrorist activities are released.”

Israel has sent about 1,500 detainees back to Gaza through the main Kerem Shalom crossing, according UNRWA, the U.N. relief agency for Palestinian refugees.

In a report released last month, UNRWA said former detainees described being beaten, threatened and deprived of food, water, toilets and sleep. Responding to the report, the IDF said mistreatment of detainees “is a violation of the IDF’s values and contravenes IDF orders and is therefore absolutely prohibited.”

HaMoked submitted requests to the IDF to locate 1,317 Palestinians from Gaza, including 29 women and 19 teenage boys. It also brought four blanket habeas corpus petitions to the Supreme Court, which the justices rejected on procedural grounds.

The group began filing petitions for individual detainees, including the subject of Wednesday’s hearing, a 43-year-old X-ray technician named Muhammad Hamid Salem Abu Musa. A high court judge last month ordered the IDF, the head of Israel’s prison service, its chief military prosecutor and others to respond to HaMoked’s petition.

Abu Musa, who is from the city of Khan Younis, was reportedly detained by Israeli troops in February as they swept through Nasser Hospital, apprehending dozens of patients and medical workers, according to the Gaza Health Ministry.

“Since then, his whereabouts have been uncertain,” his brother, Jasser Abu Musa, said in a phone interview.

The IDF said it stormed the medical complex to recover the bodies of hostages it believed were being held there - and to stop what it said was militant activity in and around hospital grounds. Israeli forces did not find any hostages’ bodies in the raid, but said they discovered boxes of medicine bearing the names of Israelis kidnapped by Hamas.

“Hundreds of terrorists and terror suspects” were arrested, the IDF said, and “transferred to undergo further investigations by security forces.”

Abu Musa had worked at the hospital as a radiology technician for roughly two decades, his brother said. And he was at work in October when his young son, Yousef, arrived at the hospital morgue following an Israeli strike on the family home.

Jasser, 45, said he heard from former detainees that his brother is “being treated well” in Israeli custody, and that Wednesday’s hearing “offered a glimmer of hope amid the uncertainty.”

Still, the family’s fears deepened when civil defense workers in Gaza discovered several mass graves at the Nasser Hospital complex in the weeks after the raid. Some of the graves contained bodies buried there before the operation.

“I have little faith in the court given the ongoing violations of human rights in Gaza,” he said. “My only wish is to hear that Muhammad is safe.”

In court on Wednesday, lawyers for the state did not say under which legal framework Abu Musa was detained, but said broadly that Gaza detainees are being held under either Israeli criminal law or a 2002 law on the incarceration of unlawful combatants.

The law on unlawful combatants allows Israel to hold people accused of “hostile acts” against the state without charge or trial. In a filing this week, the state said Abu Musa would be granted access to a lawyer - but it did not say where he is being held.

“The decision-makers have decided at this time not to provide this information to NGOs or to families,” Rosenberg, the government lawyer, said.

The panel, which did not rule on the case Wednesday, seemed skeptical of the state’s argument. Justice Ofer Grosskopf questioned why there is not a clear avenue for rights groups and relatives to seek information about individual detainees short of petitioning the high court.

“In a country governed by the rule of law, everyone has to petition the high court, so the high court asks the state’s attorney to locate a detainee?” Grosskopf said.

Israel has not allowed the International Committee of the Red Cross to visit Palestinian detainees since the start of the war. The ICRC has also called on Hamas to release the hostages still held by Palestinian militants in Gaza and to allow its representatives to visit them in the meantime.

Israeli media reported earlier this year that the defense establishment supported providing the ICRC with information on about 60 detainees from Gaza. But the state reversed course after far-right National Security Minister Itamar Ben Gvir intervened, saying details regarding Palestinian detainees should only be shared if Hamas first provided information about the remaining hostages in Gaza.

“It’s shameful that Israeli authorities would aspire to behave like terrorists,” Jessica Montell, executive director of HaMoked, said in an interview before Wednesday’s hearing.

“We should be a law-abiding country committed to respecting international legal standards,” she said.

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Alon Rom in Jerusalem and Hajar Harb in London contributed to this report.