Scorsese’s latest film looks to the past, but misses the larger picture.
Martin Scorsese’s Killers of the Flower Moon, a three-and-a-half-hour historical film, centers on a wave of brutal murders against members of the Osage Nation, a Native American tribe based in northeast Oklahoma. As depicted in the movie, a great number of these murders were of Osage women, many of whom were married to white settlers, and all of whom were killed in a bid to obtain the rights to their land.
The film is founded upon a real-life investigation by journalist David Grann, who examined dozens of murders of Osage people that took place in the 1910s to 1930s during a time that became known as the Reign of Terror. The Osage were oil-rich, but were barred from using their own money, and Grann concluded that this wave of violence was the result of an expansive conspiracy of the Osage’s white financial “guardians.”
Yet while the focus of the film is historical, the issue it highlights — brutality against Native women — is an enduring one.
Disproportionate rates of violence toward Indigenous women, including murder and sexual assault, continue to persist and remain a significant problem. According to a 2017 report from the Centers for Disease Control and Prevention, American Indian and Alaska Native women, as well as Black women, suffer from higher homicide rates compared to other racial groups, and have been murdered at more than twice the rate of non-Hispanic white women.
Per a 2016 National Institute of Justice report, American Indian and Alaska Native women are also much more likely than non-Hispanic white women to experience intimate partner violence, which accounts for a high proportion of these homicides. And according to a 2022 Amnesty International report, almost one-third of American Indian and Alaska Native women have been raped in their lifetime, a rate that’s more than twice as high as that of non-Hispanic white women.
Much like in the film, there’s been limited accountability for many of these offenses due to conflicts of jurisdiction, inaction by law enforcement, and a lack of resources on Tribal lands. Since Tribal nations are sovereign entities, they have their own courts and law enforcement. Because of a Supreme Court decision in the 1970s, however, tribes are broadly barred from prosecuting crimes committed by non-Native people on Tribal lands. As a result, they’ve had to rely on state or federal governments to step in and pursue these cases, a gap that leaves many of them unresolved.
In recent years, reforms to the Violence Against Women Act have given tribes more power to prosecute non-Native people in instances of domestic violence, but the impact of past policies — and the message they sent — lingers.
“Non-Native men harass and kill Native women because settler colonial governments have created a system in which they can do so with impunity,” Liza Black, a historian at Indiana University and citizen of the Cherokee Nation, told Vox.
Indigenous studies experts say that it’s vital to situate the events depicted in Killers of the Flower Moon in this broader context in order to make clear that this isn’t an isolated historical incident. In reality, the tragedy and horror of the Osage murders are part of a much larger, widespread, and ongoing phenomenon. Acknowledging this is critical for understanding the sources of this violence — and confronting them, experts say.
“What [the film] could have done better is connect the historical story that it focused on to what’s happening today and also to the larger context of missing and murdered Indigenous women,” Elizabeth Rule, an assistant professor of critical race and gender studies at American University and enrolled citizen of the Chickasaw Nation, told Vox, “I think it’s important that we have the story of [film protagonist] Mollie Burkhart be told, but it’s also important to provide really critical context to audiences who may walk away thinking this was a story about greed, or a story about individual corruption, or a story about history — when in fact this is a story about systemic violence, and a story about colonization, and a story just as much about contemporary Indigenous communities today.”
An ongoing crisis of violence against Indigenous women
Violence against Indigenous women is an enduring problem for which there continues to be limited accountability.
In its 2016 report, the National Institute of Justice found that more than 84 percent of American Indian and Alaska Native women have experienced violence during their lifetime, a rate that’s 1.2 times that of non-Hispanic white women, a category the report used as a benchmark for comparison. Additionally, 56 percent have experienced an incident of sexual violence, compared to 50 percent of white women who said the same in the 2010 National Intimate Partner and Sexual Violence Survey that informed the report.
“On some reservations, Indigenous women say they don’t know even one woman who has not been raped. Consequently, they tell their daughters what to do when—not if—raped,” Columbia University health sciences professor Robin Whyatt says of the crisis.
These figures are in addition to the high number of Native women who’ve been murdered or gone missing. In a 2008 review, criminal justice experts from the University of Delaware and University of North Carolina Wilmington discovered that Native women living on some reservations were murdered at 10 times the national murder rate. And in 2021, 5,203 Indigenous girls and women were reported missing, “disappearing at a rate equal to more than two and a half times their estimated share of the U.S. population,” according to a 2022 USA Today investigation. While data isn’t available in every state, in Montana — which does track this issue — Native people comprise 6.7 percent of the population but 26 percent of missing persons reports, per Vice News.
Because there’s significant underreporting of instances of violence, and there’s no federal database to which all tribes can submit crimes and missing persons cases, much of this data is also likely an undercount. While some of these offenses are happening on reservations, roughly 70 percent of Native women live in urban areas, and victims’ ethnicities are often incorrectly reported by local law enforcement, masking the number of cases of violence that may be specifically affecting the group.
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In the past few decades, organizations including the Coalition to Stop Violence Against Native Women and the National Indigenous Women’s Resource Center are among those that have sought to draw attention to these issues and lobby for policy changes as part of the Missing and Murdered Indigenous Women movement (MMIW). Originally a hashtag coined by former Canadian journalist Sheila North Wilson in 2012, the MMIW movement builds on years of efforts to raise awareness about the scale of this crisis and give tribes more legal power and resources to respond. As more activists and artists have coalesced around it, many have used red dresses and red handprints to symbolize Indigenous women who are missing and whose voices aren’t heard.
Disproportionate rates of violence are tied to the longstanding legacy of colonization and how it promoted abuse of Indigenous women, experts say.
“This crisis is both cultural and legal in nature,” Mary Kathryn Nagle, a lawyer who focuses on Indigenous rights, told Al Jazeera.
Violence against Indigenous women was central to colonization, writes Whyatt. From the 1400s through the 1800s, groups ranging from Spanish colonists to Gold Rush settlers normalized the rape and sexual abuse of Native women. Additionally, the murder of Indigenous women was key to colonization efforts focused on reducing the population and political power of Native peoples. Native women were targeted due to “their ability to sustain the tribes through childbearing,” Whyatt notes. Their killings were part of “the colonial focus on tribal extermination, including the relentless massacre of Native women,” according to a Columbia write-up.
Later on, American political policies would continue to enshrine gender disparities into law. Under the Burke Act of 1906, many Native women were declared “incompetent,” or unable to manage their own lands without the supervision of a white guardian, a policy that diluted the power they had over their own assets. “For Native women, the one way to be deemed competent was to marry a white man,” according to Project 1492, a website dedicated to sharing US history from an Indigenous perspective. This dynamic is evident in Killers of the Flower Moon, which shows Mollie, an Osage woman, forced to have regular meetings with a white guardian who oversees her and her family’s spending until she marries her white husband.
In the 1970s, Native women were also subject to coercive sterilization campaigns, which led to at least 25 percent of women of childbearing age getting sterilized. These campaigns were driven by physicians in the Indian Health Services who were wary of high birthrates by Native women, and who believed they were “not capable” of making decisions about birth control. Many Native women were pressured into these procedures, while others weren’t even informed that they were happening.
Over time, these policies have established a culture in which violence against Native women has both been encouraged and condoned. Collectively, they’ve also fueled stereotypes that continue to exoticize and dehumanize Native women, and which take the form of everything from revealing Halloween costumes to ugly tropes that portray people as “savages” and “drunk Indians.” There is “a larger ideological framework that has constructed Native women as everything from less than human to less than civilized to overtly sexualized,” Shannon Speed, director of the American Indian Studies Center at UCLA and a Tribal member of the Chickasaw Nation, told Vox.
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These cultural attitudes are compounded by the lack of legal consequences that perpetrators face. Confusion about who has jurisdiction over a case — Tribal authorities, the state government, or the federal government — has long been a major obstacle to addressing violence and seeking accountability. That’s especially been at issue when the perpetrator is a non-Native person, which is the case in 86 to 96 percent of cases of sexual abuse of Native women.
In 1978, the Supreme Court eliminated Tribal criminal jurisdiction over non-Native people in the Oliphant vs. Suquamish decision, which meant that Tribal courts weren’t able to pursue cases against non-Native people who killed or assaulted women on their lands, forcing them to rely on state and federal authorities who often ignored cases.
Perpetrators have been able to exploit these legal gaps, as well as institutional racism against Native people, to evade consequences.
One 2021 study published in the Journal of Forensic and Legal Medicine found that violence toward Native women spiked in places near fracking sites due to an influx of white men working in these areas. “When predominantly indigenous communities are infiltrated by masses of white males, indigenous women tend to face more violence, and the pervasive culture of structural violence tends towards protecting the perpetrators (who are often white) through the biased law enforcement system,” writes Binghampton human rights researcher A. Skylar Joseph.
That trend also has parallels with the film, which saw the killings of Native women increase as a direct result of white settlers attempting to steal their land, knowing that regional law enforcement would do little to stop them.
It wasn’t until 2022 that Tribal nations welcomed a reauthorization of the Violence Against Women Act, which enables tribes to prosecute non-Native people for sexual violence, sex trafficking, and stalking. This policy is expected to improve Tribal nations’ ability to charge perpetrators of these crimes, though experts note that more resources and jurisdictional authority is still required to fully implement these changes.
And it’s little comfort for what happened in between, an entrenched culture that will be difficult to walk back.
A crisis of inaction
Indifference and invisibility are two major barriers that Native communities have also cited as they’ve sought justice.
“Invisibility is the modern form of racism against Native Americans,” Crystal Echo Hawk, a founder of the social justice organization Illuminative and member of the Pawnee Nation, said at a 2020 conference focused on Native representation. Per Echo Hawk and the Great Falls Tribune, a two-year effort called the Reclaiming Native Truth Project conducted from 2016 to 2018 found that 78 percent of people knew little to nothing about Native Americans, and 40 percent didn’t know Native people existed in contemporary society.
“The complete lack of representation in the media, in pop culture, in K-12 education not only erases us from the American consciousness, it inadvertently creates a bias,” Echo Hawk, who consulted on surveys for the project, told the Women’s Media Center in 2018.
Law enforcement’s treatment of cases is just one of myriad areas in which this bias manifests. When crimes against Native women are reported, state and federal authorities often take them less seriously, and excuse missing reports by suggesting that they may have run away from home or are under the influence of drugs or alcohol. In 2016, 5,712 cases of missing Native women were reported across the US, but just 116 were logged by the Justice Department in their federal database. And in 2019, the federal government declined to pursue 35 percent of violent and nonviolent crimes that a non-Native person had committed against a Native person.
Relatedly, a chief challenge in missing persons cases is the lack of media attention and social pressure. This phenomenon was previously dubbed “Missing White Woman Syndrome” by the late journalist Gwen Ifill, who called out the disproportionate amount of coverage that missing white women receive compared to women of color. “I think the overarching thing is that they just don’t care and they know there’s not going to be an outcry,” says Speed regarding the subpar response from authorities in certain cases.
The Guardian called the summer of 2022 a “watershed moment for Indigenous representation in US pop culture” with the success of shows including the comedy series Reservation Dogs and the dramatic action film Prey. Those projects have provided more diverse depictions of Indigenous people onscreen that move beyond stereotypes some viewers may have previously held. Killers of the Flower Moon’s high-profile nature — and Scorsese’s reach as a director — also offered an important opportunity to raise awareness both about the specific attacks on the Osage people and about the connection these killings have to contemporary problems of violence.
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“I certainly think that, viscerally, the film can make people aware,” Robert Warrior, a professor of American literature and culture at the University of Kansas and member of the Osage Nation, told Vox. “The roots of the current crisis do go back to that time.”
As multiple Indigenous studies experts note, however, establishing this broader context — and the pervasive nature of the ongoing problem — is one of the areas in which the film fell short.
“I think it failed to show that this is a systemic issue,” says Black. “The film depicts the violence against Mollie as isolated, and they refuse to challenge the idea that Ernest [Mollie’s husband] loved [her.]”
“The film makes it seem like the violence against Native women is something that happened in the 1920s and that it doesn’t happen today,” adds Speed.
Adding information at the end of the film or including a comment in the personal introduction that Scorsese gives at its start, when he speaks directly to the audience, were options that experts suggested as straightforward ways to convey this connection. Putting a greater emphasis on the role that federal policy played in making Osage people, and Native women, longstanding targets of violence, was another potential opportunity, Warrior says.
Using this film to make these points would have been valuable because of how large a platform the movie has, because of the limited attention violence against Native women has received in the media more generally, and because of the power that attention has in driving public perception and action. Due to the gaps that currently exist in awareness about this issue, Killers of the Flower Moon was a chance to continue calling it out, and to make clear that it’s not confined to the history books. What’s more, it would have meant telling a more complete story about the systemic sources of the violence in the film.
“It’s an important point to make that the violence has always been there and this is one manifestation of it,” says Speed. “It happened long before, and it’s certainly continued.”
The tiny Gulf state has ties with the parties in the conflict. That has made its diplomacy essential — which is exactly what the Qataris want.
Late Tuesday, Qatar formally announced a deal between Israel and Hamas that would temporarily pause fighting in Gaza to facilitate a prisoner exchange of at least 50 Israeli and dual-national hostages for the return of 150 Palestinian prisoners, among other elements.
Implementation of the deal is still being finalized, but it looks like a serious diplomatic breakthrough, though decidedly not a resolution to the conflict. The deal was so sensitive that even as the agreement appeared imminent, senior White House officials were reluctant to confirm until the Qatari government officially announced anything.
Qatar got the spotlight here because of its role as mediator through weeks of painstaking negotiations. The United States played a role, for sure, as did Egypt. But Qatar was a key intermediary.
Even before this most recent war between Israel and Hamas, the very tiny, very rich Gulf state had carved out a bit of a reputation as a diplomatic broker, especially in hostage negotiations. This has been a deliberate gambit on Qatar’s part, which has cultivated and managed pragmatic ties with the region’s main players — becoming a kind of middle man between parties that otherwise do not get along. It’s a key US ally, hosting an American military base critical to US operations in places like Syria and Iraq. Qatar also has ties to Islamist groups, including Hamas, whose political arm has an office in Doha.
This has given Qatar leverage — and, most importantly, access. The United States and Israel do not negotiate directly with Hamas. That has made the Qataris an indispensable go-between. “You have to talk to Hamas to get anything done,” said F. Gregory Gause, professor at the Bush School of Government and Public Service at Texas A&M. “The Qataris are there to help you out — and they’re there to remind you that they’re helping you out.”
Qatar’s role in this conflict extends beyond this week’s deal. In late October, Qatar helped negotiate the release of a couple hostages held by Hamas, and it may be helping to tamp down a wider regional conflict, given its good relations with Iran and open channels with the Iranian-backed militant group Hezbollah. Qatar played a role in mediating the 2014 war between Israel and Hamas, and has supported Gaza, including financing salaries for Hamas civil servants through the sale of fuel to the group — with the okay of Israel, in part because Israel saw it as a stabilizing measure.
Qatar’s diplomacy isn’t limited to the realm of Israel-Hamas, either. Qatar served as an intermediary between the US and the Taliban before the two ultimately negotiated a peace deal directly, in Doha. Qatar’s open lines with the Taliban helped facilitate evacuations from Afghanistan after Kabul’s fall in 2021, and even after. And Qatar has increasingly become known for its skill in hostage negotiations, even outside the region. It recently helped broker a deal to get Russia to return four Ukrainian kids to their families.
“It wants to be influential, diplomatically, and it does understand that, obviously, it’s not a regional superpower that can dictate things,” said Bessma Momani, a political science professor at the University of Waterloo. Yet maintaining these delicate ties — and working those connections — is a very good way for Qatar to advance its interests, and its security. That approach comes with some risks, but, at least right now, they don’t outweigh the upsides for Qatar.
Qatar finds “a way to be helpful and resourceful in specific, niche areas that can have outsized influence,” Momani said. “That’s their strategy.”
How Qatar deployed its strategic diplomacy to secure a deal between Israel and Hamas
After Hamas’s October 7 raid in Israel, where it also captured about 240 hostages, Qatar approached the United States and the Israelis about the potential release of the hostages. According to senior White House officials, this led to the establishment of a channel to work on these negotiations. That working group, or “cell,” as a White House senior official termed it in a call with reporters Tuesday, eventually helped secure the release of two American citizens held hostage by Hamas on October 20. The release served as a kind of test case, and the success of the operation opened up the potential for a wider deal to get many more hostages released. “Qatar really could deliver through the cell we had established,” the senior administration official said.
Weeks of intense diplomacy followed, with the deal often teetering, including over Hamas’s initial refusal to present proof of life. But eventually Hamas agreed, Israel’s government adopted the deal, and Qatar made it official.
There’s still a lot of uncertainty. Israeli strikes on Gaza continued Wednesday, and any prisoner exchange is not likely to start until at least Friday, an Israeli official said. This will be a complex, careful, slow process, and the potential for something to go sideways persists. Maybe the only thing predictable about any of it was Qatar’s involvement.
Hamas’s political wing has maintained an outpost in Doha since 2012, relocating there from Syria after the outbreak of civil war. This Hamas office has come under a lot of scrutiny in the wake of the October 7 attack, but Qatar had welcomed that office with the backing of the United States. At that point, the US had also been relying on Qatari intermediaries to deal with the Taliban.
“With these groups that we, the US, do not engage with directly, it’s better to know where to be able to reach them through intermediaries, should the need arise,” said Kristian Coates Ulrichsen, a fellow for the Middle East at Rice University’s Baker Institute for Public Policy. “It’s better to have them in a friendly partner state such as Qatar, than, say, in Afghanistan or in Iran, or in Syria, where they cannot be reached by a third party, if necessary, at a time of crisis.”
The Israel-Hamas war is that type of a crisis, one where a line to Hamas would be very, very difficult for Israel and the United States to establish, but also very, very essential. It goes both ways, too: For Islamist groups like Hamas, Qatar is a conduit to governments and superpowers.
For Qatar, being friends with everyone is a delicate geopolitical balancing act. It can host a US military base, but it can also share an oil field with Iran. It can keep close ties to Islamist groups that America and many of its regional partners do not like at all. But because it’s been able to leverage these connections, it gets to keep doing what it’s doing.
“It’s about basically trying to maintain working relationships with all parties, and then working those relationships in times of crisis to try to de-escalate complex situations that could otherwise have serious repercussions for security instability, not just in Qatar, but in the region,” Ulrichsen said.
Mediation is a pillar of Qatar’s foreign policy, so much so that, as Ulrichsen pointed out, the resolution of international disputes is actually in its constitution. But Qatar is also a small country in a volatile region. It doesn’t have all that much except a lot of oil and gas money — which, to be very fair, is not an insignificant part of this story. This is a helpful entree to power politics, especially if you can, say, fund a global media outlet like Al Jazeera to promote your worldview, or be there with your hydrocarbons if an entire continent is in an energy crisis.
But overall, Qatar believes that if it can demonstrate its utility in the region — and around the globe — that’s something of an insurance policy in case of insecurity and threats. The same thing goes for hosting a superpower’s military base. Being useful to other countries, and raising its global stature, also helps the world overlook some other troubling aspects about Qatar, including its poor human rights record.
“Qatar is trying to carve out a global role,” Gause said. “We saw that with the World Cup. We see that with Al Jazeera. We see that with all these mediation efforts, and we see it with the Islamist strategy, and we see it with the American airbase. It’s all an attempt to make Qatar relevant and make Qatar necessary so no one will say, ‘Why do we need this little place?’”
So far, this is mostly working for Qatar — and maybe for the rest of the world, too, depending on how this latest deal unfolds. It is not a totally risk-free strategy though. It was tested in 2017, when Saudi Arabia and other states boycotted Qatar over its ties to the Muslim Brotherhood. Then-President Donald Trump jumped in on the side of Saudi Arabia to accuse the Qataris of funding terrorists, too. US diplomats rushed to undo the damage, but the regional boycott ended up lasting about three years. Qatar’s close ties to Islamist groups could one day elicit more pressure from, say, Washington; its position still comes with reputational risks.
It is also likely that Qatar — like many other countries — wanted to find some pathway to de-escalating the violence and horror in Gaza. This deal is not a resolution, but a temporary pause, hostage exchange, and humanitarian access are first steps. As Vox’s Jonathan Guyer pointed out, the truce is an opening, not the end point. “More diplomacy is needed now. Four days of pause isn’t enough.”
That is likely the next test for Israel, Hamas, the United States, and, so it seems, Qatar.
150 Palestinian prisoners are being released as part of Israel and Hamas’s recent hostage deal. But thousands more remain behind bars.
On October 12, in the West Bank village of Wadi al-Seeq, Israeli soldiers and settlers detained three Palestinians and spent hours abusing them. The Israeli newspaper Haaretz reported that the Israelis stripped the detainees down to their underwear, blindfolded and photographed them, beat them with knives and an iron pipe, put out cigarettes on their bodies, and even urinated on them. One of the detainees described the experience as “Abu Ghraib with the [Israeli] army.”
The Israeli military said that it is investigating the incident, but that horrifying account did not occur in a vacuum. Since Hamas attacked Israel on October 7, Palestinians in the West Bank have been victimized by a surge in violence perpetrated by both Israeli soldiers and settlers.
One of the major sources of that escalation is a tool of repression that Israel has long deployed against Palestinians and has used even more aggressively in recent weeks: administrative detention, a practice that allows Israel to jail Palestinians indefinitely without charge or trial.
[Related: Everything you need to know about Israel-Palestine]
The three Palestinians who were abused in Wadi al-Seeq were released on the same day they were detained and subsequently sent to the hospital. But many of Israel’s detainees get locked up for months, or even years, without ever being charged with a crime.
And while Israel argues that this is a lawful preventative security measure — allowing it to target people for a range of political activity, including speech and nonviolent protest — human rights groups have deemed Israel’s use of administrative detention a blatant violation of international law.
Even beyond administrative detention, when charges are brought against Palestinians in the West Bank, they are almost always tried in military courts that have a near-perfect conviction rate. (By contrast, Israelis are usually tried in civil court.) Palestinians, in other words, are sent to a trapdoor instead of a fair trial.
The result is that today, thousands of Palestinians, including hundreds of children, are held in Israeli custody on murky legal grounds — a problem that’s only gotten worse in recent years. Some human rights organizations have called out Israel’s military-imposed legal system in the West Bank as evidence that Israel is committing the crime of persecution, intentionally depriving Palestinians of their fundamental rights because of their ethnic identity.
That’s why, even well before this war, the release of these prisoners has been a key Palestinian demand in negotiations with Israel. And just this week, Israel agreed to a deal where Hamas will return 50 hostages in exchange for 150 Palestinian prisoners and a brief pause in Israel’s bombardment in Gaza.
Imprisoned without charge or trial
Before October 7, the number of Palestinians held by Israel under administrative detention was already at a 20-year high. According to the Israeli human rights organization B’Tselem, there were 1,310 Palestinians imprisoned without charge or trial at the end of September, including at least 146 minors. Since then, Israel has dramatically increased its use of administrative detention, pushing the number of detainees to over 2,000 within the first four weeks of the war. (That’s out of a total of roughly 7,000 Palestinian prisoners.)
“While this is not completely prohibited under international law, the use of administrative detention is only permitted in exceptional circumstances and subject to stringent safeguards,” Elizabeth Rghebi, the Middle East and North Africa advocacy director at Amnesty International USA, told me.
Israel contends that it has the right to circumvent certain international obligations in the West Bank, saying that it’s not part of Israel’s sovereign territory and therefore subject to military laws that can restrict people’s civil rights. But watchdog groups, including the United Nations Human Rights Committee, argue that as the occupying power, Israel must respect human rights in Palestinian territories — especially as the occupation grows older and more entrenched.
And before the war, Israel was not, by and large, deploying this tool lawfully. “Amnesty has found that Israel’s systematic use of administrative detention against Palestinians indicates that it’s used to persecute Palestinians rather than as an extraordinary and selectively used preventative measure,” Rghebi said.
Israel maintains that it detains people because of legitimate security concerns, such as potential participation in violent attacks. But while there is a thin veneer of due process — Palestinians can appeal their detention orders, for example — the reality is that a stunningly low number of appeals succeed, in no small part because as both local and international human rights groups have documented, neither the detainees nor their lawyers are told what evidence Israel has against them. (According to B’Tselem, Israeli military courts only nullified 1.2 percent of detention orders issued between 2015 and 2017, and an investigation by Haaretz found that as of August, not a single detention order had been canceled this year.)
“Evidence has shown that [administrative detention] is a pretext to persecute and deprive people of their fundamental rights and freedoms because they challenge the Israeli military occupation,” Rghebi said.
In 2022, Amnesty International released a comprehensive report pointing to the practice of administrative detention as just one example of how the Israeli state subjugates Palestinians and cracks down on dissent. Since 1967, Israel has issued over 1,000 military orders that criminalize a range of activities in Palestinians’ daily lives, including waving political symbols like flags, being in certain areas without permits, and any kind of speech that can fit into a loosely defined charge of “incitement.” Citing decades of evidence, the Amnesty report outlined an “intentional Israeli policy to detain individuals, including prisoners of conscience, solely for the non-violent exercise of their right to freedom of expression and association, and punish them for their views.”
Indeed, over the years, Israel has detained hundreds of people, including dozens of journalists, for security concerns that amounted to nothing more than social media posts. And since October 7, Israeli forces have been aggressively policing what Palestinians are saying online. Tala Naser, a lawyer at the Palestinian prisoner and human rights organization Addameer, told me that even social media posts that merely include Palestinian flags or quotes from the Quran are being targeted by Israel as sources of incitement.
A conviction rate too good to be true
Not all Palestinian prisoners are held under administrative detention. In fact, before the latest war started, there were roughly 5,000 Palestinians held in Israeli custody, and about 1,300 of them were under administrative detention. Thousands of others are serving sentences because unlike administrative detainees, they actually were charged with a crime and convicted.
On the surface, those convictions might make those cases of imprisonment seem more legitimate. But dig a little deeper and you find a legal system that’s riddled with unjust practices that all but guarantee a guilty verdict. According to the Israeli government’s own data, a whopping 99.7 percent of cases that went through Israeli military courts in 2010 ended in a conviction. “There’s no fair trial guarantees in these courts,” Naser, the prisoner rights attorney, said.
Palestinians are routinely denied counsel, for example, and faced with language barriers and mistranslations that taint testimonies and confessions used in court. But it’s not only a lack of due process that plagues this legal system. Oftentimes, these cases are based on specious and far-reaching charges.
Take, for example, the case of Nariman Tamimi, who was targeted because of a Facebook livestream. Military prosecutors indicted her in 2018 on account of trying to influence public opinion “in a manner that may harm public order and safety,” as well as allegedly calling for violence. But Human Rights Watch, which reviewed the case and evidence in question, said that “nowhere in the video or case file does Nariman call for violence.” Still, Tamimi pleaded guilty and told Human Rights Watch that she did so in order to avoid a longer prison sentence. (Tamimi’s daughter, Ahed Tamimi, who was put under administrative detention when she was 16 years old, was again detained earlier this month for “inciting terrorism.”)
Systematically denying people their right to a fair trial is a violation of international law, and Tamimi’s experience mirrors countless others, including children who receive the same treatment as adults. Israel, after all, is the only country that routinely puts children on trial in military courts, and it even established the “first and only juvenile military court in operation in the world,” according to a report by the United Nations.
All of this points to sham trials being a feature of Israel’s military court system, not a bug.
Incidents of torture
Israel has a long history of torturing Palestinian prisoners. In 1999, the Israeli Supreme Court reviewed various methods of torture used by Israeli agencies and issued a ruling outlawing them. An Israeli government report released the following year not only admitted to the systematic use of torture against Palestinians during the First Intifada but also found that law-enforcement agencies had lied to cover it up.
Yet more than two decades later, Palestinian detainees and prisoners still report being subject to torture and other types of humiliating and inhumane treatment, as in the case of the three Palestinians detained in Wadi al-Seeq last month. And despite its 1999 ruling, the Israeli Supreme Court has repeatedly allowed for torture to continue under certain circumstances.
Since October 7, there has been a spike in reports of abuse and ill-treatment of Palestinian detainees and prisoners. Qadura Fares, the head of the Palestinian Authority Commission for Prisoners’ Affairs, told Reuters that at least four Palestinians have died while being held in Israeli custody, adding that their autopsies revealed evidence of torture and medical neglect.
These harsh conditions were widespread before the war, and even children held in detention have been subject to ill-treatment, physical abuse, solitary confinement, and more. Such practices not only point to more evidence of the unlawful nature of Israel’s detention policies but also give more weight to the growing calls on Israel to release Palestinian prisoners.
What will happen to Palestinian prisoners?
After Hamas’s October 7 attack, in which roughly 1,200 Israelis were killed, the world’s attention turned to the over 200 Israeli hostages who were captured that day and how they could be safely returned to their families.
But as Israel geared up for its subsequent military assault on Gaza, the fates of the thousands of Palestinian prisoners illegally detained by Israel were notably missing from many conversations about how Israel could secure the hostages’ release — a critical omission because those prisoners, which include hundreds of children, are key to at least one potential diplomatic resolution: a prisoner swap.
As the recent deal between Israel and Hamas shows, this was neither a fringe idea nor an unrealistic proposal. In fact, Israel has engaged in these kinds of exchanges many times before, and thousands of Palestinian prisoners have been released as a result of such deals over the years. In 2011, for example, 1,027 Palestinians were let out of prison in exchange for one Israeli soldier held hostage by Hamas.
These kinds of resolutions aren’t exclusive to the region. Time after time, governments seeking to rescue their citizens from being held hostage will insist on not engaging with the captors. Americans, for example, are very familiar with the phrase “We don’t negotiate with terrorists.” But even in the United States, no matter how much chest-thumping there is at the start of a hostage crisis, it almost always ends in paying the captors’ ransom — be it by agreeing to a prisoner swap or releasing a large sum of money.
In Israel’s case, even some of the families of the Israeli hostages have for weeks been pushing Israeli Prime Minister Benjamin Netanyahu to agree to a diplomatic exchange of detainees. They summed up the proposed deal in three words: everyone for everyone — a demand that Netanyahu has so far rebuffed.
But 47 days into the war, which has now killed over 14,000 Palestinians, including more than 5,800 children, it’s clear that Israel’s illegal detention of Palestinians has become a more pressing issue than ever. And how Israel chooses to address it might well determine how this war ends.