Accounting for Those in the Hands of the Belligerent: Security Detainees, the Missing and the Dead in the Israeli–Hamas Conflict

Abstract

Five Israeli nationals, two soldiers and three civilians, have gone missing since the 2014 Israeli–Hamas violent escalation, and they are currently held incommunicado by Palestinian armed groups in the Gaza Strip. In response, the Israeli Government revoked some entitlements from Hamas security detainees held in Israel. It also withholds bodies of Palestinian militants, killed while carrying out attacks against Israelis, refusing to hand them over to the families. The bodies are to be buried in Israel until Israeli nationals, or their remains, are repatriated by Hamas. In several instances where the authorities returned the remains to the next of kin, they imposed various restrictions on the funeral arrangements. The Israeli Supreme Court recently examined the Government’s practices, with some judges finding them unlawful. These developments call for the analysis of the matter under the law of armed conflict (LOAC), taking into account that other States involved in armed conflict encounter similar challenges. This article accordingly discusses some of the legal obligations arising when persons, or their remains, are believed to be in the hands of the belligerent party. It also considers the legality of certain measures taken to promote their repatriation.