Israel holding some 6,000 Palestinian prisoners, 'unlawful combatants'

Since October 7, administrative detention of Palestinians has spiked to 2,070, up from 1,319 last month, according to information the Israel Prisons Service (IPS) has provided to the HaMoked NGO.

In addition, Israel has 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.

Further, there are an estimated 4,000 Gazan workers (out of the 21,000 who had permits to work in Israel before October 7) who recently “disappeared” into special military detention camps, probably at Anatot and Ofer.)

Altogether, Israel now holds 6,704 “security” prisoners, which includes the administrative detainees as well as another 2,321 detainees facing criminal charges, and another 2,313 prisoners who are serving sentences following convictions in the Israeli military courts, according to HaMoked and the IPS.

Administrative detention record

In September, Israel broke a 30-year record for administrative detention of Palestinians, hitting 1,264, Hamoked announced. 

The previous record of 1,108 had been recorded in March 2003 at the height of the Second Intifada. 

There have not been this many Palestinians in administrative detention since the First Intifada of the late 1980s-early 1990s.

In February, HaMoked had previously said that the IDF had broken its record for administrative detentions of Palestinians dating back around 20 years to the 2002-2003 era of the Second Intifada.

Even during the later years of the Second Intifada and during the Knife Intifada of 2015-2016, the number of administrative detainees was more in the 700 range.

In quieter years over the last two decades, the numbers were usually down closer to 200-300 at a time.

Over the years, sometimes the US and regularly Europe, have criticized Israel for using administrative detention and for other tactics like night arrests of Palestinian minors. 

Administrative detention may not be valid in the eyes of the US, Europe and much of the human rights community because it abridges standard criminal proceedings and rights.

For example, defense lawyers do not get to see classified evidence whose revelation could expose Israeli intelligence sources and methods. But it still includes judicial proceedings, the judges see all of the classified evidence, and most detainees are held for three to 12 months, meaning not forever.

The IDF responded, “Administrative detention is used only in cases where security authorities possess reliable and grounded information which indicates a concrete danger which a detainee presents to the West Bank, and where there are no alternatives to removing the danger.”

It added that every administrative detention decision is made on an individual and case-specific basis.

Even before October 7, more Israeli civilians had been killed by Palestinian terror attacks from the West Bank in 2023, around 40, than any year since the Second Intifada nearly 20 years ago. 

From 2019-2021, combined only around one-third the number of Israelis were killed compared to the first eight months of 2023.

The IDF has also said that the administrative detention judicial proceedings are serious and that decisions can be appealed to the High Court of Justice.

Regarding the unlawful combatants, HaMoked is not saying they should be exonerated, but rather that they should either be dealt with as prisoners of war or that anyone who committed war crimes against Israelis should be charged and punished for them in the normal course of criminal procedure in Israeli courts.

It is extremely rare for Israel to declare an individual as an “unlawful combatant.” Generally, even with Hamas and Islamic Jihad terrorists, they bring them to trial in the Israeli military courts, or in special cases, place them in administrative detention.

There have been sone past rare cases where Israel declared a Hezbollah terrorist to be an “unlawful combatant.”

HaMoked speculated that the 105 declared unlawful combatants were Hamas forces who were captured inside Israel as part of Hamas’s invasion of Israel’s South on October 7.

Prisoners of war have certain set protections and procedures for how they must be detained until the end of a war and for returning them to their country of origin once a conflict has ended.

The US brought back the idea of unlawful combatants after 9/11 to enable it to process al-Qaeda terrorists who it captured in Afghanistan and other places who were not viewed as being part of a country or military, but rather part of an amorphous international terror group.

The basic principle is that someone wearing a uniform and observing the laws of war, even if an enemy, must have certain rights.

In contrast, international terrorists wear no uniform and do not observe the laws of war. As such, the US, and in rare instances Israel, has argued that no special prisoner of war status should be granted to such terrorists, in this case including Hamas’s war crimes in the South.

The IDF said, “there are terrorists who were captured in connection with the slaughter perpetrated by a terror organization and who are detained by the State of Israel. This is according to the law, whether based on [judicial] detention orders or whether based on the authority of IDF officials who have jurisdiction to order their detention. Regarding the latter category, judicial review regarding any continued detention will take place before a judge 45 days from the date of the detention order.”

HaMoked already successfully petitioned the High Court of Justice to determine the exact locations of where 10 of the Gazan workers have been detained to then facilitate other legal processes on their behalf.

At press time it was also moving toward following a similar petition regarding another 420 Gazan workers.

Regarding the detained Gazan workers, the IDF said, “due to the war in the South, residents of Gaza that happened to be within the territory of the State of Israel or Judea and Samaria have been transferred to a place to reside, where they do not have a permit for continued residence in Israel, and regarding which due to the war situation in Gaza, they cannot be returned at this time to Gaza.”

It added, “The question of how long they will be held and their return to Gaza will be reviewed by the political echelon.”

It was unclear whether this last reference to the government meant that the political echelon would wait for the moment that the war had died down and then immediately and unconditionally return the Gazan workers, or whether the political echelon might lay out conditions and try to use the issue as a card to play in future diplomatic negotiations.