The Red Cross Visitations of Hostages and Prisoners – Questions and Answers

Since October 7, questions and claims have been raised in the public discourse about the role of the Red Cross in relation to Israeli abductees held captive by Hamas. Among other things, it was claimed that the Red Cross "does not carry out its duties" because it does not visit the abductees, and that Israeli human rights organizations "do not care" about the abductees because they do not appeal to the Red Cross to do so. At the same time, there is also public support for Israel not allowing the Red Cross access to Palestinian prisoners held by them until visits are made possible to the abductees held by Hamas. We have prepared questions and answers that clarify the legal situation on the subject.

What is the International Committee of the Red Cross and what is its function?

The International Committee of the Red Cross (ICRC) is a neutral and independent international organization operating under the Geneva Conventions for the protection and assistance of victims of armed conflict. The Geneva Conventions stipulate, among other things, that in times of armed conflict, each of the warring parties must humanely treat the combatants and imprisoned civilians of the other side and guarantee them minimal medical care and conditions of detention. As part of this, the warring parties must allow the ICRC to visit the detainees so that it could provide them with basic necessities and minimal medical care, allow them contact with the outside world, and monitor the conditions of their imprisonment. This obligation stems from the international community's understanding that precisely in times of war, detainees and prisoners identified with the enemy are at increased risk of violation of their rights, violence, and humiliation.

In addition, the ICRC assists in carrying out prisoner exchange transactions (but does not take part in negotiations).

Why don't ACRI/human rights organizations demand that the ICRC fulfill its role and visit Israeli hostages held by Hamas?

The ICRC has extensive experience in releasing prisoners and hostages in armed conflicts, but its only way to do so is to maintain neutrality and conduct a direct and confidential dialogue on humanitarian issues with all parties taking part in the conflict. It has no authority over the warring parties and cannot impose sanctions on them or force cooperation on them, and its entire activity is conditional on the consent of the parties. The ICRC cannot force Hamas to give it access to the hostages. The only ones who can exert significant pressure are the international community, especially the countries that take part in the mediation, or the countries that contribute to the parties. Demanding the ICRC to visit the hostages will be counterproductive and pointless because the ICRC has no authority to make demands of Hamas.

Since October 7, the ICRC has declared Hamas' abductions and holding of the Israeli hostages illegal under international law and has publicly called for its representatives to be allowed access to them. The ICRC also announced that it was exerting consistent pressure on Hamas to allow it to visit the hostages.

Is Israel obligated to allow the ICRC to visit Palestinian prisoners imprisoned in Israel and hand over their details?

Yes. Israel's obligation to allow ICRC visits is fixed in both international and Israeli law. For decades, Israel has recognized the right of Palestinian prisoners and detainees from the West Bank, Gaza, and East Jerusalem to receive regular visits by the ICRC, even in times of war. Over the years, the Israeli Prison Services have provided the ICRC with the details of the detainees and their whereabouts, and representatives of the ICRC have routinely and frequently visited Palestinian prisoners, sometimes accompanied by doctors who examined the detainees' health.

Is Israel currently fulfilling its duty and allowing the ICRC to visit Palestinian prisoners?

According to media reports, since the outbreak of the war, Israel has prevented visits by the ICRC to prisons and military detention facilities. In early November, the Israel Prison Service commissioner published a confidential letter sent to her by the ICRC in which the organization sought to remind Israel of its commitment to ensure adequate prison conditions and access by representatives of the ICRC to all facilities where detainees from Gaza and the West Bank are held. According to reports, the IPS commissioner replied to the ICRC that it would not be given access to prisons as long as there were Israeli hostages in Gaza. As stated above, the ICRC can operate only with the consent of the parties to the conflict, and therefore cannot enter prisons as long as Israel does not allow it.

Why can't Israel prevent the ICRC visits to Palestinian prisoners as long as Hamas prevents the Red Cross from visiting the hostages?

Legally, international law states that even if one party violates its obligation to allow ICRC visits to detained civilians, this does not relieve the other of this obligation. In other words, even if Hamas violates International Humanitarian Law, Israel must still fulfill its obligations under international law and Israeli law and allow visits by the ICRC to Palestinian detainees.

Morally, Israel is not Hamas. Hamas is holding 134 Israeli hostages under harsh conditions. Testimonies of the hostages who returned to Israel indicate that in many cases the hostages did not receive enough food and essential medical care. Hamas has not provided a list of those it kidnapped and does not provide information about their whereabouts or medical condition. In addition, Hamas refuses to allow visits by the ICRC. Israel is not a terrorist organization, but a state governed by law committed to protecting human rights. Israel's obligations do not change because of Hamas' war crimes and crimes against humanity.

In 2001, then-Supreme Court President Aharon Barak wrote in a ruling dealing with the issue (HCJ 794/98):

"One may ask: are the Applicants entitled to have humanitarian considerations weighed in their matter? They are members of terror organizations. Humanity is beyond them and harming innocent people is the bread of their subsistence. Are the Applicants worthy of having humanitarian considerations made on their behalf, when Israeli soldiers and civilians are held by the organizations to which the Applicants belong, and these organizations do not weigh humanitarian considerations at all, and refuse to provide any information on our men whom they hold captive? Our answer to these questions is this: The State of Israel is a State of law; the State of Israel is a democracy that respects human rights, and gives serious weight to humanitarian considerations. We weigh these considerations, for compassion and humanity are ingrained in our character as a Jewish and democratic State; we weigh these considerations, for a person’s dignity is precious in our eyes, even if he is one of our enemies. We are aware that such an approach seemingly gives an “advantage” to the terror organizations that are without any humanity. But this is a transient “advantage”. Our moral approach, the humanity in our position, the rule of law that guides us – these are all important components of our security and our strength. At the end of the day, this is our own advantage."

For further information: The obligation to allow visits by the ICRC in international law and Israeli law

International law: Article 143 of the Fourth Geneva Convention states that ICRC representatives have the right "to go to all places where protected persons are, particularly to places of internment, detention, and work.... Such representatives and delegates shall have full liberty to select the places they wish to visit." The Convention states that visits may only be temporarily postponed due to essential military needs, such as proximity to combat zones. The Convention is part of customary law that is binding on all states, and Israel is obligated to uphold its provisions both in times of war and in situations of occupation. Israel's obligation to comply with the provisions of the Convention has been confirmed in Supreme Court rulings as well as in past declarations by the State of Israel.

Israeli law: The rights of a person to protected life, body, and dignity are set forth in the Basic Law: Human Dignity and Liberty, and apply to all prisoners and detainees held by Israel. The Israeli Prison Services and the Israeli Army are obligated not only to refrain from violating their rights but also to take steps to ensure supervision of prison conditions, especially during wartime and when there are many reports of violence and humiliation against security detainees and prisoners.

The right of detainees to receive visits by the ICRC is also set out in the Internment of Unlawful Combatants (Conditions of Detention) Regulations, 2002, which apply to thousands of Gazans imprisoned since the 7 October Hamas attack. The regulations do not permit a blanket ban on visits but only for three months if doing so would endanger state security.

Israel Prison Services' regulations also stipulate that representatives of the ICRC may visit criminal and security detainees and prisoners, administrative detainees, and illegal combatants from the West Bank, the Gaza Strip, the Golan Heights, and East Jerusalem, as well as citizens of countries that do not have diplomatic relations with Israel. According to the procedure, a detainee is entitled to a visit every 14 days.