Justice Delayed, Justice Denied? The HCJ’s ICRC Visits Judgment
On June 3, 2026, the Israeli Supreme Court, sitting as a High Court of Justice (HCJ), issued a long-awaited judgment in a petition brought by four Israeli nongovernmental organizations against the Israeli government, the commissioner of the prison service, the attorney general, and the military advocate general. The petition sought to compel the authorities to provide information to the International Committee of the Red Cross (ICRC) about Palestinian security detainees held in Israeli prison facilities and to allow ICRC representatives to visit them in prison. Such information sharing and visits have been banned since Oct. 7, 2023, and the court held that in the absence of a clear justification for deviating from the relevant provisions of Israeli law and international law, the ban cannot be allowed to continue.
At first glance, the case illustrates the continued relevance of legal safeguards to the Israeli-Palestinian conflict, despite the security situation in the region deteriorating and the growing political pressures on the Israeli Supreme Court. Still, the fact that such a straightforward decision with urgent implications for conditions inside Israeli prisons took two and a half years for the court to deliver suggests Israeli authorities may have dragged their feet. More concerningly, the timeline perhaps indicates the court’s efforts to manage the case’s political fallout: Issuing the judgment after major hostilities in the Gaza Strip had ended already, and after all Israeli hostages held by Hamas and Palestinian Islamic Jihad had been returned, arguably rendered the decision more palatable to the mainstream Israeli public.
Background Facts
Israel currently incarcerates more than 9,000 Palestinians from the Gaza Strip and the West Bank who have been suspected, accused, or convicted of security offenses or are otherwise considered to be a security risk (hereinafter referred to as security prisoners). Some prisoners are held by Israeli civilian authorities, such as the Israel Prison Service (IPS), and some by the Israel Defense Forces (IDF). Some security prisoners have been held in detention since before Oct. 7, and some were detained after that fateful date.
About half of the security prisoners have been held in criminal detention (as suspects, indictees, or convicted persons) in connection with the alleged or judicially proven commission of security offenses as defined under Israeli penal law or IDF security legislation in the West Bank. The rest of the security prisoners have been held in preventive detention for presenting a security risk to Israel or the West Bank under administrative detention laws applicable in Israel or the West Bank, or under Israel’s Incarceration of Unlawful Combatants Law 2002 (which creates a rebuttable presumption of dangerousness for individuals who take a direct part in hostilities).
Since 1967, Israel has allowed ICRC representatives to visit security prisoners, pursuant to Article 143 of the Fourth Geneva Convention. This policy was embedded in 2002 in IPS Order No. 03.12.00. Following the Oct. 7 attack and the ensuing large-scale hostilities, information sharing with the ICRC and prison visits were suspended. The change in policy was never clearly explained. It appears that the IPS raised concerns about the potential effect of the visits on internal prison security and that other state officials objected to facilitating active monitoring by the ICRC of Israeli prisons given the situation facing the Israeli hostages kidnapped and held by Hamas and Palestinian Islamic Jihad: The hostages were denied all communication with the outside world, including ICRC visits; they were subjected to inhumane treatment; and information about their fate and whereabouts was withheld. The deteriorating relations between Israel and the ICRC following the latter’s public criticism in October 2023 of certain aspects of Israel’s war in Gaza and the ICRC’s failure to obtain access to the Israeli hostages held in the Gaza Strip may also have contributed to the sidelining of the organization.
Four Israeli nongovernmental organizations—the Association for Civil Rights in Israel, Physicians for Human Rights–Israel, Hamoked, the Center for the Defence of the Individual and Gisha, and the Legal Center for Freedom of Movement—filed a petition on Feb. 22, 2024, against the ban on ICRC visits and information sharing. The organizations maintained that the visits assumed special importance given reports about the deteriorating conditions in Israeli prisons and the parallel suspensions, in some contexts, of prisoners’ access to lawyers and family members.
The ICRC refused to participate in the legal proceedings. The organization had been added by the petitioners as a respondent whose legal rights might be affected by the petition, but the ICRC requested and received permission from the court to be removed from the case. According to the judgment, the ICRC considered that involvement in such legal proceedings might complicate its mission in the region.
The government’s principal strategy in the case was to repeatedly file motions to postpone memorial submissions, including an attempt to delay its initial reaction memorial (which it never submitted). The government requested the frequent postponements purportedly to allow the Israeli bureaucracy time to formulate a new policy and to receive input from the political echelon. The government also cited the need for time to negotiate an alternative visits mechanism (involving foreign monitors), an opportunity for the cabinet to consider such an alternative mechanism, and delays due to rising security tensions that fluctuated sharply over the litigation period.
The delays, however, were likely indicative of the government’s weak legal argument and its efforts to “buy time” in order to avoid implementing a nonreciprocal and highly unpopular legal obligation, perceived as “soft on terror.” The repeated requests for delay also seem to reflect the government’s lawyers’ decreasing ability to force politicians to comply with an unpopular law, even when the law’s content is clear and straightforward.
Eventually, the Israeli Supreme Court issued an order nisi on Aug. 25, 2024, shifting the burden of proof to the respondents and requiring the government to justify the policy or face an adverse judgment. After another series of motions to postpone the deadline for a written reply to the order, including one motion that claimed a written response might complicate the negotiations for the release of Israeli hostages (in exchange for Palestinian security prisoners), the state submitted a short memorandum on Oct. 29, 2025. All in all, the government submitted about 30 delay requests in the case.
When the government finally filed its response, it mentioned a number of policy rationales for the information sharing and visits ban, including national security risks associated with potential information leaks following visits from international actors, the fact that Israeli hostages were denied contact with the ICRC, and that alternative visit mechanisms—which eventually did not materialize—were deemed preferable. The government also noted that the detention of all Palestinian prisoners in Israel is subject to judicial review and internal mechanisms for monitoring prison conditions. The government submitted additional briefs to the court on Dec. 12, 2025, and May 8, reiterating its objection to the petition, despite recent factual developments (including the return of the body of the last hostage and a last-ditch attempt by the prime minister to avoid an adverse judgment by agreeing to ICRC visits in five detention facilities without allowing the organization to conduct personal interviews with security prisoners).
The Main Judgment
Justice Daphne Barak-Erez wrote the main judgment. She noted that despite the Knesset never having passed a law mandating information sharing with the ICRC and ICRC visits, a number of government-issued regulations, including IPS Order No. 03.12.00, formalize the visits and information sharing, with the purpose of fulfilling Israel’s international obligations, which the state never denied. These legal provisions give rise, according to Barak-Erez, to a legal right, as opposed to a discretionary privilege that the government can waive. The main judgment also held that the steps taken to ban the ICRC from receiving information and visiting detainees failed to comply with the regulation’s terms themselves requiring the government to facilitate such cooperation.
Barak-Erez then moved to discuss the applicable international law norms. She affirmed previous judicial holdings regarding the existence of an armed conflict between Israel and terror groups operating in the Gaza Strip and Judea and Samaria (the West Bank) and that customary international law constitutes part of Israeli law, unless overridden by domestic legislation. She also recalled that international human rights law may be used to fill gaps in international humanitarian law, and that Israeli law should be interpreted when possible in accordance with the state’s international legal obligations. Furthermore, she noted that despite Israel’s long-standing opposition to the de jure applicability of the Fourth Geneva Convention to Judea and Samaria (the West Bank), it has always accepted the de facto applicability of its humanitarian provisions, including those governing conditions of detention.
Barak-Erez affirmed that the role of the ICRC in armed conflict, including receipt of information about detainees and visits of places of detention, is anchored in a number of provisions of the Fourth Geneva Convention (citing Articles 76, 136, 140, 142, and 143) and Article 45(3) of the subsequent First Additional Protocol, which apply to Israel as part of the humanitarian provisions it undertook to respect and—at least in some cases—as customary international law. She noted that the Fourth Geneva Convention allows for suspension of visits in certain cases “for reasons of imperative military necessity” but “only as an exceptional and temporary measure” and in “cases where absolute military security so requires.” She also referred to an earlier HCJ case—Obeid (2001)—in which the Israeli court required the government to allow an ICRC visit with two Lebanese detainees, holding that the relevant security considerations do not justify a three-year suspension of such visits.
On the basis of the applicable law, Barak-Erez held that the sweeping ban on information sharing and visits for more than two and a half years is unlawful under both international law and Israeli law. The government’s attempts to legally justify the ban were limited in nature and focused mostly on the question of the ban’s reasonableness (invoking the aforementioned Obeid framework of analysis). Yet the government failed to explain why the policy was not changed after all Israeli hostages were returned to Israel, why the ban had no time limit, and whether general concerns about information leaks through prison visits were even relevant to ICRC visits. Barak-Erez opined that the exception found in Article 5 of the Fourth Geneva Convention applied to communication with a specific person in concrete circumstances. It could not serve as the basis for a sweeping ban, whose compatibility with international law was never adequately explained.
With regard to the minister of defense’s invocation of his specific power to suspend visits pursuant to the Incarceration of Unlawful Combatants Regulations, Barak-Erez ruled that the minister only exercised this power in October 2025—two years after the war started—and that the decision could not retroactively cure the problem of the lack of a legal basis for the visits ban in the preceding period. Moreover, the sweeping nature of the minister’s decision was incompatible with the overarching Incarceration of Unlawful Combatants Law’s reference to Israel’s humanitarian obligations and with the text of the regulations themselves, which implied that the minister had the power to ban visits only in individual cases.
Barak-Erez also rejected the government’s claim based on the Obeid case, explaining that one cannot really compare a specific decision involving a visit ban for two detainees with a sweeping ban affecting thousands of detainees. The time that had passed since the ban was first introduced and the weakness of the government’s justification supported a finding that the ban was unreasonable and even arbitrary in nature.
The prime minister’s directive on May 8 allowing ICRC visits in five detention facilities—but prohibiting the holding of personal interviews—did not influence the case’s outcome. According to Barak-Erez, personal interviews were a central component of ICRC visits under both Israeli law and international law, and the government did not properly justify its sweeping deviation from this legal requirement.
In conclusion, Barak-Erez wrote that Israel aspires to be a law-abiding state and that ICRC receipt of information and visits do not confer specific benefits on security prisoners, but facilitate monitoring and oversight of detention conditions. These are, she noted, basic legal standards. Barak-Erez further explained, in short, that cooperating with the ICRC also serves Israel’s own interests to monitor conditions of detention and can also assist Israel in refuting claims that security prisoners are mistreated.
Finally, Barak-Erez alluded to the emotional and moral difficulty of dealing with questions surrounding the provision of information about and visits to Palestinian security prisoners, while Israeli hostages are denied any contact with the outside world. Yet, with the return of the last of the Israeli hostages, this is no longer a dilemma that the Israeli court needs to confront.
The Concurring Opinions
Justice Barak-Erez’s opinion was supported by Supreme Court Deputy President Noam Sohlberg and President Yitzhak Amit in separate, shorter opinions. Sohlberg, for his part, agreed that the state had failed to meet the burden of justifying the ban and expressed frustration with the government’s delay tactics. He rejected the government’s attempt to claim that the IPS order is a policy document that can be deviated from at will; instead, he opined that the better view appears to be that it is a form of legally binding regulation. And even if the IPS order was a mere policy document, the government did not justify specific deviations from it, nor did it amend the order—as it could have. It chose instead to act in violation of the order.
He also rejected the government’s claim that an IPS decree issued shortly after Oct. 7, suspending routine activities in prisons, implicitly suspended the visits. Sohlberg noted that some ICRC visits were defined as “special visits” and therefore nonroutine in nature, and that the decree did exclude, in any event, activities protected by legal rights. These arguably included ICRC visits. What’s more, the failure to provide information on security prisoners to the ICRC was certainly not covered by the 2023 decree. With regard to the minister of defense’s invocation of the power to suspend visits under the Incarceration of Unlawful Combatants Regulations, Sohlberg noted that the minister failed to meet the legal obligation to reevaluate on a monthly basis any visits ban (which, he agreed with Barak-Erez, should apply only to individual cases to begin with), and that the minister’s attempt to change the regulations retroactively violated basic principles of legality.
Sohlberg concluded by distancing himself from Barak-Erez’s reasonableness analysis (Sohlberg is a long-standing critic of the court’s extensive reliance on the reasonableness test), expressing the view that it was unnecessary given the government’s failure to point to a source of authority for the ban and to properly justify it. In the same vein, he opined that the international law discussion was unnecessary under the circumstances, given the holding reached by the court under Israeli law. His approach to this matter seems to reflect a more general disagreement between the court’s conservative and liberal justices over the role of international law in domestic adjudication. (Unlike his colleagues, Barak-Erez and Amit, Sohlberg has tended to keep a distance from international law in his judgments, especially those relating to the armed conflict in Gaza).
In his brief opinion, President Amit suggested that the court’s remarkable patience with the government’s many postponements was linked to the difficult security situation prevailing at the time and the hostage crisis, but that, despite the many opportunities to defend its position, the government had failed to do so. He reiterated the point that the judgment does not address special benefits or privileges but binding legal obligations, whose fulfilment he considered as a show of strength: External monitoring would underscore Israel’s deep commitment to the rule of law and would help deflect attempts to delegitimize it.
The Judgment’s Significance
The judgment in the ICRC visits case can be seen as a reaffirmation of the HCJ’s role in protecting the rule of law in Israel, including the rule of international law, even in times of security threats and major armed conflict. It shows that despite the strong political pressures it is subjected to, the Israeli Supreme Court still operates to restrain the government in sensitive areas of national security and can reprimand it when it violates domestic and international law. The court’s analysis of international law in the case appears to be accurate: Its decision engaged with the Fourth Geneva Convention and the First Additional Protocol seriously and attempted to read domestic law in accordance with these international sources. It also underscored the mandatory nature of the duty to allow ICRC information sharing and visits and the very narrow limits that can be imposed on it in exceptional circumstances.
At the same time, one should not overestimate the positive effects of the judgment. First, the litigation was marked by an exceptional series of delays by the government, which suggests a deliberate strategy to avoid the judgment as long as possible rather than defend the case on the merits. This strategy was ultimately quite successful: Visits were resumed more than two and a half years after the ban was imposed. One cannot avoid the feeling that, as long as Israeli hostages were still held in Gaza, the court was not keen to decide the case and assume the political fallout associated with such a decision. Perhaps the judges were concerned that the lifting of the ban could complicate the already difficult prisoner exchange negotiations and could delay the return of the Israeli hostages. Hence, while the court criticized the government for the many delays it sought, it may have been secretly relieved at not being required to authorize ICRC monitoring of Israeli prisons while there were still hostages in Gaza.
Second, the case was decided against the government due to its failure to present a serious legal defense. In other cases relating to the Gaza war, where a plausible defense was raised, the court showed significant willingness to defer to the government’s positions—for example, regarding humanitarian assistance to Gaza and the requirement of registration of foreign nongovernmental organizations. In the current case, however, the government’s disdain for its legal obligations went far beyond what the Israeli Supreme Court will tolerate. Thus, one can hardly consider the ICRC judgment as indicative of the court’s determination to assume a particularly critical approach toward governmental policy in matters relating to national security. To the contrary, as long as the government has some plausible legal arguments, the court tends to decide in its favor.
Third, it appears that while the case was pending for more than two and a half years, the conditions in Israeli prisons deteriorated sharply. In fact, this appears to have been the declared policy of the minister of national security, Itamar Ben-Gvir, who is responsible for the operation of the IPS. The court’s inability to move quickly toward a judgment under these circumstances is disappointing, as is its silence on the question of accountability for those officials who put the illegal ban in place. This case is similar in these respects to the Sde Teiman case we discussed in a previous contribution. There, too, the court’s strong criticism of the government’s failures to ensure adequate detention conditions was made only after the Sde Teiman facility effectively stopped functioning as a major detention place and conditions therein had improved.
Finally, it is noteworthy that right-wing legislators in the Israeli Knesset have already begun deliberating a new bill that would reverse the effects of the judgment and create a new legal basis for suspending ICRC visits. It is clear that such a law, if enacted, would run afoul of Israel’s legal obligations under international humanitarian law. Yet, in an age of populism and just before national elections are due, a significant number of legislators may wear such a law-violating distinction as a badge of honor. At the time of writing, it appears that there is no majority in the Knesset for such a law to pass.
