Unlawful Incarceration: Legal Analysis of Israel’s Military Detention Regime 

Since the outbreak of hostilities on 7 October 2023, Israel has arrested thousands of Palestinians from Gaza and the West Bank, including East Jerusalem. Harrowing accounts of detainees’ abuse and ill-treatment, including torture and sexual violence, have since emerged.

This publication analyses the regime relied on by Israel to detain Palestinians from Gaza: the Incarceration of Unlawful Combatants Law, 5762-2002; its amendments of 18 December 2023 and 28 July 2024; and official policy vis-à-vis detainees adopted since 7 October 2023.  

This framework deprives detainees of crucial protections enshrined in international humanitarian law (IHL) and complementary provisions of international human rights law (IHRL), including on the permissible grounds for detention; the review procedure for the legality of detention; and external oversight as well as contact with families and humanitarian organisations such as the International Committee of the Red Cross (ICRC).  

These provisions aim to prevent unlawful confinement, ill-treatment, inhumane conditions of detention, and enforced disappearances of detainees. With these critical safeguards removed as a matter of law and State policy, Israel has established a detention regime that institutionalises unlawful practices. 

The publication addresses the responsibility of Israel and third States to bring the detention regime in line with the requirements of international law, to end ongoing violations of IHL and IHRL, and to provide redress for victims. It also examines the potential individual criminal liability of those responsible for creating and maintaining the regime for war crimes and crimes against humanity. 

All materials relating to the 2023-2024 hostilities in Israel and Gaza can be found here. 

COVER PHOTO: A group of Palestinians who had been detained by Israeli soldiers in the Shucaiyye District in eastern Gaza have been released. Following their release, these Palestinians, marked with scars and numbers on their hands, received medical treatment. AShraf Amra/Anadolu Agency, Deir Al-Balah, Gaza, 10 December 2023. All rights reserved.