‘Legal Whack-A-Mole’

On August 7, 2024, a panel of three judges on Israel’s Supreme Court convened for the second time to discuss conditions at Sde Teiman, a military base in the south that the Israel Defense Forces (IDF) had converted into a prison camp. In the days following October 7, 2023, the IDF used it to detain roughly 120 militants who had taken part in the Hamas-led attack. The facility, assembled in haste, was intended to serve as a temporary site for registration and interrogation, before detainees were moved to more established prisons. (Sde Teiman had been used as a short-term detention facility in previous wars with Hamas, in 2009 and 2014.) Following Israel’s invasion of Gaza, however, hundreds of Palestinians from inside the Strip were incarcerated there on suspicion of being members of Hamas. Many were held for weeks on end.

A veil of secrecy initially surrounded the facility. But as thousands of detainees passed through Sde Teiman, rumors of abuse slowly trickled out. Starting in December 2023, investigative work by Ha’aretz showed evidence of severe mistreatment: prisoners were being kept cuffed and blindfolded for days on end, and sleeping on thin mattresses in one of several compounds in which the lights were kept on at night. In April 2024 an Israeli doctor who volunteered at the facility sent senior government ministers an anonymous letter testifying that some prisoners were initially cuffed so tightly that blood flow to their extremities was constricted, necessitating the amputation of hands and feet. (The IDF ultimately replaced plastic cuffs with looser metal ones.) By May CNN, the BBC and other news outlets outlined further physical and psychological abuse, based on testimony from both released Palestinians and Israeli whistleblowers. As Aryeh Neier described in these pages, abuses at Sde Teiman included beatings, humiliation and degradation, and punitive measures for religious worship. In an investigation by The New York Times, and in reports by human rights organizations like B’Tselem, former detainees testified to having suffered sexual violence; one such assault would later be caught on video.

On May 23 a coalition of human rights groups led by the Association for Civil Rights in Israel (ACRI) petitioned the Supreme Court to stop holding detainees at Sde Teiman, claiming that the facility violated Israeli and international law.¹ Israeli administrative law is relatively permissive with regard to standing; the court tends to allow third parties like the ACRI to challenge state actions even when the plaintiff has not suffered direct injury. In this case the court allowed another uncommon practice: the ACRI based the petition not on direct testimony, which the court acknowledged would be challenging to collect under the circumstances, but on evidence from the media and reports by NGOs. 

Five days after the petition was filed, Herzi Halevi, then the IDF’s chief of staff, formed a committee to examine conditions at military prison facilities. Strikingly, the state did not deny many of the severe charges of rights violations. Instead, at the first hearing, on June 5, it notified the court that it had begun to relocate five hundred of the seven hundred prisoners then at Sde Teiman to facilities with more adequate conditions, a move it promised to complete in ten days. (A further thirty detainees were released, following interrogation, and returned to Gaza.) By the second hearing, in August, only twenty-eight detainees remained at the site, the state lawyers said in court. Sde Teiman would continue to operate, but as a medical and temporary detention facility at which prisoners would be held for a maximum of fourteen days. Holding conditions would be improved, the state said.

It was a rare success for an organization that has fought against the odds, and often against Israeli public opinion. Founded in 1972, the ACRI is the country’s oldest and most prominent human rights group. As the war dragged on, it took on cases concerning prisoners’ rights, freedom of speech at antiwar protests, and severe movement restrictions on Palestinians in the West Bank. The organization’s victory in the Sde Teiman case was by no means perfect: the court did not discuss accountability for many of the human rights violations. (In late July, notably, the IDF’s Military Police Corps arrested nine reserve soldiers suspected of sexual violence against a detainee at Sde Teiman; five were ultimately indicted.) But as the scholars Yuval Shany and Amichai Cohen wrote in Lawfare following the court’s final decision in September, the outcome “underscores the ability of civil society groups to use the law to effectuate change in government policy even during wartime.” It also demonstrated one of the ACRI’s main modes of influence: their petitions can push administrators to correct course even before the court issues a decision. 

“In my view, the point of taking the state to court is to enact change,” Oded Feller, the group’s chief legal counsel, told me. In some respects, he said, the ACRI prefers it when an administrative agency commits to changing its practices immediately rather than being forced to by a court ruling. Decisions can take years to reach, and in their aftermath the ACRI often still needs to fight for their implementation. A lawyer at Gisha, an organization that has petitioned the court to allow more humanitarian aid into Gaza, echoed that sentiment last year. “We don’t want the court to ask questions and the government to answer,” she said in a June interview on Kan, the Israeli public broadcaster. “We want children’s stomachs to be full.” 

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When they founded the ACRI, the group’s leaders sought to model it after the American Civil Liberties Union: an independent, non-governmental organization dedicated to promoting civil rights. Its founding charter noted the absence of a bill of rights in Israel, and, acknowledging that the country’s large ethnic and religious minorities might find themselves perpetually in the political minority, positioned the organization as a defender of individual liberties. (The charter was written against the backdrop of protests by the Mizrahi-led Israeli Black Panther movement, which were violently suppressed by the police, and early demonstrations against the occupation of the West Bank.) Many of the ACRI’s early leaders were prominent law professors from the Hebrew University, and though the group has pursued its goals through lobbying, advocacy, and education, legal work quickly became its primary focus.

Over the years the ACRI has won precedent-setting cases concerning sex discrimination in the IDF, censorship of LGBTQ content on public television, and torture perpetrated by Shin Bet, Israel’s Security Agency. Its membership is broadly liberal, but the group is unaffiliated with any political party; about a fifth of the staff is Palestinian (mostly citizens of Israel), including a few senior members. It regularly collaborates with a number of organizations–including Gisha, Adallah, the Association for LGBTQ Equality, the Israeli branch of Physicians for Human Rights, and many others. But as the seniormost of those groups, it has also become an umbrella organization of sorts—a “human rights supermarket,” Feller told me, referring to the broad range of issues they take on.

By the nature of its work, the ACRI has always courted controversy. “We’ve had multiple Skokies,” Feller said—referring to the 1977 case in which the ACLU defended neo-Nazis’ First Amendment right to march through the town of Skokie, Illinois. In the mid-2000s, for example, they argued that Yitzhak Rabin’s assassin, Yigal Amir, had the right to marry his partner in prison, despite his life sentence and extreme unpopularity. (Amir reportedly hesitated about having the ACRI represent him, due to their “support of terrorists,” but ultimately assented.)

In the late 1980s, with the outbreak of the first intifada, the ACRI’s legal work increasingly focused on human rights violations in the occupied territories: administrative detention, restrictions on free movement, and excessive violence by security forces. In one notable case from 1989, they successfully petitioned the Supreme Court to order the IDF to criminally prosecute Yehuda Meir, a colonel who had ordered his soldiers to “break the limbs” of a group of Palestinians who had been arrested for rioting in the West Bank. Meir had been forced to leave the IDF after a disciplinary hearing, but the Supreme Court accepted the ACRI’s stance that this was insufficient. It was the first time the Court had issued a direct order to the IDF’s advocate general, setting precedent for its future involvement in administrative decision-making. (Meir was ultimately convicted, though only demoted to the rank of private.) In 1992, following an escalation in attacks on Israeli civilians by Hamas and Palestinian Islamic Jihad, Rabin’s government decided to arrest and deport 415 members of those organizations from the occupied territories to Lebanon. The ACRI quickly sought a restraining order against the decision, which the court granted—though it ultimately allowed the government to go ahead with the move. Rabin, who went on to lead the Oslo Accords, called the group the “Association for Hamas Rights.”

During the second intifada, as concern for Palestinian rights quickly faded from the Israeli mainstream, the ACRI’s work in the occupied territories started drawing more criticism. Yoav Dotan, a law professor at the Hebrew University, argued in 2002 that the group had lost the pragmatic, apolitical ethos that had enabled its early success in promoting individual liberties. His critique was both legal and strategic. Legally, he argued, they were playing fast and loose with petitions against IDF operations in the West Bank—some of which, he claimed, had a weak evidentiary basis and were unlikely to succeed. And strategically, he wrote, by appearing to be in opposition to the IDF at the peak of the second intifada—there were twelve suicide bombings against civilians in March 2002 alone—they had dampened the organization’s public image. Yuval Elbashan, another legal academic, said at the time that the ACRI’s focus on these cases was ultimately counterproductive: the courts would reject them anyway, and in the process human rights would become even more associated with the left and less broadly consensual. But from a human rights perspective these objections had little weight. The core principle of such rights is their universality, and a fight for rights that relies on public opinion for affirmation is fundamentally hollow.

Feller concedes that the courts were unlikely to take on some of their petitions—not, however, because they were unfounded but because judges are generally loath to intervene in military decision-making, particularly in the midst of conflict. “I don’t recall a single legal case where I didn’t think we had a firm legal and evidentiary basis,” he told me, even as he admitted that losing also comes with a cost: “If the court rules against us, it can turn bad practices kosher.” 

Yet petitions could also have a positive extralegal effect. In a 2002 interview, the chairwoman of the ACRI at the time, Dr. Na’ama Carmi, told Ha’aretz: “We knew that some of these petitions were unlikely to be accepted by the court, but that was not the sole criterion for their success. Petitions also serve as a direct check on power, by encouraging the authorities to think twice before acting. Their submission can, by itself, prevent injustices.” 

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Since October 7 the ACRI has been leading, or co-leading, a number of high-profile cases pertaining to the war in Gaza, with a particular focus on Palestinian detainees. “Like everyone, we were initially in complete disarray,” Reut Shaer, a lawyer on their legal team, told me. “There was a sense that our toolkit was completely inadequate for something of this magnitude.” Many were also personally affected, with family members in the towns and kibbutzim Hamas had attacked. But within a couple weeks, evidence of worsening conditions in prisons—congested cells, restrictions on food and water, no family or lawyer visits—had begun to filter in. 

On October 25, 2023, the ACRI petitioned the court to order the Israeli Prison Service (IPS) to restore full rights to prisoners. But the petition, which was based on anonymous testimony, was denied—the government claimed that the IPS had withdrawn only privileges like family visitations, not fundamental rights, and the judges found the anonymous evidence too thin. “October 2023 was not a good time to be in a ‘he said, she said’ situation with the state,” Shaer said. The judiciary was also reeling from the attack, and far more likely to be sympathetic to the state’s security concerns than to the conditions of prisoners suspected of carrying it out.

In February 2024, the ACRI led another petition, calling on the state to allow the International Committee of the Red Cross to visit Palestinian administrative detainees. After October 7 Israel had barred all ICRC visits and stopped providing the organization with any information about prisoners’ conditions. The government’s move was widely understood as a punitive way to exert pressure on Hamas, which was blocking the ICRC from visiting the hostages in its captivity. (“Hamas’s war crimes don’t change Israel’s obligations to those it detains,” the ACRI wrote in the petition.) Even members of Netanyahu’s government opposed the policy. Ronen Bar, the head of Shin Bet, publicly denounced it for contravening international law and harming Israel’s strategic alliances with the West. Itamar Ben Gvir, the far-right minister of national security who oversees the IPS, wrote in response that October 7 had made it possible to end the “summer camp” conditions detainees had been enjoying at Israeli prisons. (Ben Gvir had also exacerbated the crowded conditions at Sde Teiman and the IDF’s other temporary detention sites by refusing to admit many of the prisoners into IPS facilities.) 

After stalling for weeks, the government responded that it was putting together an “alternative mechanism” for assessing prisoners’ conditions and communicating information to their families. In August, evidently losing patience, the court ordered the government to clarify why ICRC visits had been stopped. They have yet to respond: the state’s lawyers have now asked for an extension seventeen times, and the hearing has been repeatedly postponed.

The ACRI drew heat for taking on all three cases, particularly from right-wing activists. At the August hearing on Sde Teiman, as the ACRI lawyer detailed the conditions at the facility, protesters loudly disrupted the proceedings. One woman shouted: “Is anyone talking about the conditions our hostages are being held in?” Other audience members began chanting “Shame.” The ACRI’s lawyers have been heckled, doxxed, and threatened. Roni Peli, who until February led their work in the occupied territories, told me she was sent a picture “that made it clear they know where I live.”

Tom Nisani, an extreme right-wing activist who leads Beyadenu, an organization dedicated to asserting Jewish sovereignty of the Temple Mount, regularly posts videos of himself harassing the ACRI’s lawyers to his X page. “The only thing that will make these people think twice is…exposing them,” he wrote in a June post. He included pictures of an ACRI lawyer who, he claimed, sought to “improve the catering conditions of Nukhba terrorists in prison.” “Nukhba,” the name of the elite Hamas fighting unit that led the massacres of Israeli civilians on October 7, has become a catch-all term for “Palestinian” for many on the Israel right—and, by extension, a means of justifying all abuses done to Palestinian prisoners.

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The ACRI’s work depends on an independent legal system that had come under strain in the year before October 7, during which the government attempted to overhaul Israel’s judiciary. Netanyahu’s justice minister, Yariv Levin, sought to restrict the Supreme Court’s ability to exercise judicial review over laws passed by the Knesset, to limit the courts’ power to strike down government decisions deemed “unreasonable,” and to bring judicial appointments under government control by altering the makeup of the Judicial Selection Committee. “The legal and democratic infrastructure that we rely on was under constant threat of radical change,” Shaer told me. “But Gaza was actually not top of mind for us, before the war.” 

Emboldened by support from the current government, settler violence has run rampant in the West Bank. According to the UN Office for the Coordination of Humanitarian Affairs, the number of weekly violent incidents against Palestinians saw an uptick after Netanyahu’s cabinet was sworn in at the end of 2022. In the past month and a half alone, settlers have attacked the towns of Khirbet al-Marjam and Jinba, setting fire to several houses and beating local residents (the police subsequently arrested twenty Palestinians, and no settlers). In late April settlers attacked Palestinian residents in Bardala, a town in the north of the West Bank, torching homes and a goat pen.

Netanyahu’s fragile governing coalition depends on support from the far right, leading him to grant powerful cabinet positions to some of the most extreme members of the Knesset. Bezalel Smotrich, a far-right settler, was not just appointed minister of finance but also given special oversight of the West Bank, in the Ministry of Defense. “The real judicial overhaul was in the occupied territories,” Peli says. “They had essentially stripped the Civil Administration”—the IDF body that governs parts of the West Bank—“of many of its authorities, which now reside directly under Smotrich.” Decisions about the confiscation of Palestinian land or the destruction of Palestinian houses, she said, are now made by an “intra-settler Ministry of the Interior,” with which the ACRI can’t engage to the same extent.

When the war started, the judicial overhaul had in some respects slowed; Levin, the justice minister, seemed to have realized that creeping change is likelier to succeed than his initial all-at-once approach, which prompted broad public outrage. But the rule of law seems to have loosened all the same. Even in cases the organization has taken on and won this year, the road to effecting change has been bumpy. One ACRI petition, for example, prompted the attorney general to clarify, in May, that the police cannot confiscate antiwar signs at political protests. But the confiscations have continued apace, and suppression of the protests has only grown more violent, with the police increasingly apprehending participants by force. In late October the police updated their internal guidelines to allow themselves to use stun grenades to disperse demonstrations, some of which had been flowing into major highways and blocking traffic. Ultimately, senior officers know that they are more beholden to Ben Gvir than to the letter of the law.

In late September, when the court ruled in favor of the ACRI, Sde Teiman had been reduced to just a field hospital and several compounds housing a few dozen detainees. “There was something encouraging in seeing we’re not entirely weightless,” Shaer said. At the same time, it’s hard to escape the feeling that they are fighting a losing battle. “Even when we win, it doesn’t change the big picture,” Peli told me. “The direction we’re heading is the same.”

Indeed, even the shadow of a victory over Sde Teiman seems to have been fleeting. Between October and December, according to IDF numbers, more than 1,300 Palestinians were apprehended in North Gaza. This brought the total number of Gazans currently detained in Israel to roughly 3,400, many of them at Anatot, an IDF camp in the West Bank, and at Ofer, an IPS facility. In January a major Ha’aretz investigation found that conditions at the two sites have rivaled Sde Teiman: prisoners have testified to being beaten, woken up arbitrarily in the middle of the night, and blindfolded for days. Some are not told where they are; others have been forced to wear the same clothes for months on end. Two prisoners have died in custody, one in each camp.

In their ongoing game of legal whack-a-mole, the ACRI wrote to the IDF’s advocate general and to the IPS, asking them to investigate conditions at both sites. The IDF subsequently closed the detention facility in Anatot in early February. In the course of the cease-fire, which stretched from mid-January to mid-March, Israel released close to two thousand Palestinian prisoners, some of whom were held in Ofer. With no evidence of improving conditions for the remaining prisoners, however, the ACRI joined Physicians for Human Rights Israel in an additional appeal about Ofer; the state has yet to respond.

On March 18 Israel broke the cease-fire with a series of airstrikes, and the fighting in Gaza resumed. Both Ofer and Sde Teiman are reported to be filling up again.