Israel has faced so many threats, from the October 7 invasion, to ongoing rocket fire from Hamas, Hezbollah, and Yemen, to the ongoing holding of almost 240 hostages by Hamas, that it has been hard to keep an eye on whether Israel is living up to its obligations regarding protecting Palestinians in the West Bank and securing the rights of Palestinians it detains generally.
Closing in on around 150 Palestinians have been killed in the West Bank since the war started. Most have been killed by the IDF, and many were terrorists (see Thursday’s Gush Etzion terrorist attack), but anecdotally more than 10 were either killed by settlers or by IDF troops under circumstances that the IDF itself is probing as possibly problematic or criminal.
On top of those killed, there have been clear-as-day cases of IDF soldiers or settlers beating or otherwise humiliating Palestinians.
The US and allies of Israel in the European Union are up in arms on the issue, and it could even affect how long they give Israel to continue the Gaza war.
US envoy Brett McGurk went out of the way to flag the issue as one of the major reasons for visiting Israel this week, right next to discussing Israel’s security needs and securing the release of the hostages.
The IDF has promised transparency on these issues, but it took repeated requests for nearly two weeks to get details, and the details are still limited. The Justice Ministry, which is handling the settlers, did not provide an official response.
Unofficially, it appeared clear that the IDF, the Justice Ministry, and the police are having problems moving forward on the various cases at a normal pace in the context of the war.
Is any delay due to lack of resources because of: being overwhelmed with fighting and prosecuting a spike in terrorists, a lack of enthusiasm with prosecuting Jews in the shadow of the October 7 massacre of Jews and ongoing rocket fire on the home front, or a mix of both?
In a separate but parallel story, since October 7, administrative detention of Palestinians has spiked to 2,070, up from 1,319 last month, according to information the Israel Prison Service has provided to the Hamoked NGO.
“Unlawful combatants”
In addition, Israel in early November declared 105 Palestinians as “unlawful combatants,” which under Israeli law (and American law after 9/11) refers to enemy forces who are viewed as not entitled to the prisoner of war status under Article four of the Third Geneva Convention.
Those Palestinians were captured during the October 7 battles in Israel, but this number has grown since as the IDF has added Hamas and Islamic Jihad terrorists whom it captured during fighting in Gaza.
Further, an estimated 4,000 Gazan workers (out of the 21,000 who had permits to work in Israel before October 7) “disappeared” into special military detention camps.
In September, Israel broke a 30-year record for administrative detention of Palestinians, hitting 1,264, Hamoked announced.
This issue could also affect broader US and EU support for the Gaza invasion.
On top of that issue, the International Criminal Court has entered the fray more aggressively than at any time since it started to review the Israeli-Palestinian conflict in 2015.
Where are all of these trends going in the weeks and months to come?
Regarding Israeli legal obligations toward Palestinians in the West Bank, the picture is extremely unclear. The IDF provided updates only on three cases.
There is only one criminal probe, which has not yet reached the point of a decision whether an indictment will be filed.
On October 28, an IDF soldier from the Nahal Haredi unit who was off duty shot and killed Palestinian Bilal Salah, 40, who had been harvesting olives near Nablus. That part is undisputed. From there, the soldier claims he was under attack and first shot in the air as a warning before shooting lower, but still not necessarily to kill.
According to Haaretz, a relative of Salah witnessed the shooting and claims that there was no friction between the sides in this case and that suddenly the soldier just shot Salah for no reason other than claiming that Salah was harvesting olives in an unauthorized way.
Haaretz also quotes a security source saying that the specific area where Salah was harvesting was authorized, and that the soldier was either confused about the rules or was trying to invent an excuse for his conduct, which in any case could be problematic if the dispute really was just over olives.
There was no evidence that Salah had a weapon, and he was shot in the chest, leading to the soldier being arrested and being held pending a decision regarding whether to charge him, and with what.
The other two cases were viewed by the IDF as below the criminal threshold and were dealt with as disciplinary issues.
In one case, a disciplinary punishment was handed down more than a week ago against a soldier from Unit 967 who taped or otherwise forcibly planted an Israeli flag on the body of a Palestinian. The soldier then sang various songs to humiliate the Palestinian, and a video was taken of the incident to share the humiliating episode, all leading to the soldier being fired from his position, but without being expelled from the army entirely. The IDF Spokesperson’s Unit was unaware of what new unit he was in.
In a third case, an IDF reservist from Etzion Unit 21 kicked a Palestinian and sometime more than a week ago was given a disciplinary punishment of 10 days of IDF detention, having to remain on a closed military base (not the same as actual prison), as well as being expelled from the reserves.
One of the above IDF cases related to an October 21 incident where three Palestinians from the Wadi as-Seeq village were detained and handcuffed by soldiers and settlers.
According to the Palestinians, they were detained for nearly the whole day, were severely beaten and abused, including being stripped and forced to sit for hours in their underwear, were urinated on, and were burned with cigarettes.
In a statement to The Jerusalem Post shortly after, the IDF noted that the arrest in Wadi as-Seeq – which it says was made following discovery of a knife and an ax on the Palestinians – was “contrary to what was expected of soldiers and commanders in the IDF.”
But when the Justice Ministry was contacted about any progress in cases against the settlers involved, no update was given despite multiple requests.
Informally, once again, it seems that the cases are moving slowly either because of the prosecution being overburdened with work against Palestinian terrorists during the war, or because of a lack of an appetite to go after Jewish crimes against Palestinians in the middle of the war with Hamas.
The police also did not respond to a request for an update.
On October 11, three Palestinians were reportedly killed and eight injured by an attack of West Bank Jews with their faces covered. None of the authorities that the Post contacted had an update on this issue.
As of November 1, according to the NGO Yesh Din, settlers had attacked Palestinians in more than 100 incidents in at least 62 towns and villages in the West Bank under cover of the war from October 7 to October 22.
It is unclear how much is happening on the Israeli side to prosecute these past acts or to prevent new ones, with huge amounts of energy being poured into cracking down on Hamas also in the West Bank.
The numbers of administrative detainees did spike after October 7 to new highs, but, according to sources, the number of new detainees do seem to be flattening.
That said, with the Israel-Hamas war potentially lasting weeks if not months more, without even getting to a later round of insurgency, it is expected that the numbers will not start to drop in the near term.
In nonwar times, most administrative detainees are held for three to six months, with two years being much rarer, and more than two years being exceedingly rare.
It is unclear what impact the war will have on these trends, but during the Second Intifada, detentions lasted longer than in calmer times. It will be important for Israel to show not only transparency, but also that each individual case really is getting looked at carefully, something that is much harder for judges when their caseloads spike.
Temporarily, the 105-plus unlawful combatants have been transferred to Israeli civil courts in the South, which are temporarily reviewing their cases in proceedings parallel to administrative detention. This means there is judicial review of the full charges against them by the judge, but that the defense lawyer only sees a paraphrase of the charges, to protect intelligence sources and methods.
There are multiple problems here that make the Hamas Gaza detainees different from West Bank Palestinians.
From the IDF’s perspective, it has not controlled Gaza since 2005, and enemy fighters from Gaza are analogous to an enemy army, as opposed to terrorists from the West Bank, who have committed crimes, but whom Israel has responsibility for as part of its ongoing “belligerent occupation” (a legal, not political term, carrying certain legal responsibilities) of the West Bank.
But unlike nation-state enemy armies, Gaza Hamas terrorists wear no uniforms and systematically abuse the laws of war. This means they may not have standard prisoner of war status and rights.
Also, there are big evidentiary problems: many of the arrested Hamas terrorists, and many of the Jewish victims’ bodies, were evacuated under fire, without engaging in standard practices to keep evidence easily traceable. Even without the problem of being under fire, the mass executions were chaotic, and tying a specific terrorist to a specific killing may only be possible for some of the terrorists, who happened to take videos of their crimes.
That means a murder charge may not be possible for many terrorists. So how to deal with them?
The IDF said the Justice Ministry is handling the issue, while the ministry declined to comment on record.
Sources indicated that the ministry is working on establishing some kind of ad hoc special war crimes tribunal similar to the Nuremberg tribunal of World War II, the Iraq tribunal against Saddam Hussein, and others.
Former Israeli judge Steve Adler has justified such a tribunal, which might also require legislation, on several grounds.
He has written in the Post, “A special law and court would underscore the uniqueness of the crimes committed on October 7. This trial is not just a typical murder case…. This trial involves unimaginable horrific actions, including murdering groups of bound children… and are a stain on humanity.”
He added, “Hamas… are zealots whose ultimate goal is to destroy Israel. The motivation behind these acts is not purely criminal but driven by religious fanaticism…. The October 7 attack was part of a plan involving Iran, Hezbollah, and Hamas to destroy Israel.”
Another legal issue which these tribunals could address, Adler noted, is that they could include provisions for the death penalty and provide for civil wrongful damages claims to sue countries sheltering Hamas leaders.
For the Hamas killers from October 7, where the direct evidence proving who they killed is absent, a special tribunal could provide lesser crimes of terrorism and felonies to at least put them in jail for a long time – though how long could be controversial.
Shortly after a cabinet decision after November 3 to release and not having anything to do with the Gazan workers who had been temporarily detained with the advent of the war, 3,200 workers were returned to Gaza.
The Israeli government gave almost no details, but foreign reports said that the workers were returned to Gaza in a haphazard fashion with no particular plan or guidance about where they could or should go, given that many of their homes or even neighborhoods might have been destroyed.
It was also unclear if 800 or more workers were still being held, or if the original 4,000 number of detained workers was inflated.
The Prime Minister’s Office and the Foreign Ministry declined to comment, though the issue was pushed through by Prime Minister Benjamin Netanyahu.
The Shin Bet (Israel Security Agency) addressed how the workers could be released en masse with allegations that many of them may have spied for Hamas to enable the October 7 invasion.
There was no official response, but sources indicated that those Palestinian workers who were released had been checked to see if they had any connection to October 7.
Generally, the cabinet presented its decision with an emphasis on the outcome that Palestinian Gaza workers could no longer be present in Israel, ending a program that had included 18,000-21,000 workers.
National Security Minister Itamar Ben-Gvir reportedly protested the decision to return them to Gaza, demanding to keep them in detention, seemingly not trusting the Shin Bet review, or as a negotiating chip to help get back Israeli hostages held by Hamas.
By the government overrode Ben-Gvir, and even if it was not handled well in terms of how the Gazan workers were returned, this issue is mostly over and is not expected to be a continuing problem for Israel with the ICC or the global community.
However, there will be a “day after” the war, and most of these other issues will return to the headlines and to the world agenda.
Without even getting into ICC attention to the conduct of the IDF’s war in Gaza, Israeli authorities ignore or slow-walk these other legal issues at the Jewish state’s diplomatic and legal peril.
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