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T Pblic Cmmitt Aait Trtr i IralAdala: T Lal Ctr r Arab Mirity Rit i Iral
Pridic Rprt: June 2010
exposedThe TReATMenT of PALesTInIAn DeTAInees DuRIngoPeRATIon CAsT LeAD
This project was made possible by the support of the following funders: ICCO, Trcaire.
www.stoptorture.org.il www.adalah.org
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Exposed
The Treatment of Palestinian Detainees during Operation Cast Lead
The Public Committee Against Torture in Israel
Adalah: The Legal Center for Arab Minority Rights in Israel
Research and Writing: Adv. Majd Badr, Adv. Abeer BakerEditing: Adv. Irit Ballas, Adv. Bana Shoughry-Badarne
English Translation: Ron Makleff
Thank you to Adv. Hassan Jabareen, Dr. Yuval Ginbar, Mr. Carmi Lecker,
Dr. Ishai Menuchin, Mr. Muhammad Sarahne, Adv. Tahreer Atamle-
Mahana, Adv. Samah Elkhatib Ayoub, and Adv. Haneen Naamnih for
their useful comments and contributions to this publication.
This project was made possible through the generous support of:
ICCO & Trcaire
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Table of Contents
Preface: 1.
Introduction: 2
1. The Lost Time: 5
A. Refraining from Notification of Detention: 5
B. The Use of Protected Persons as Human Shields: 8
2. Conditions under Detention and Imprisonment : 14
A. Detention Conditions of Detainees in the Gaza Strip: 17
B. Conditions in Military Detention Facilities in Israel: 19
C. Conditions of the Detainees in Interrogation Facilities
and Prisons: 21
3. Torture and Ill -treatment of Detainees: 24
A. Soldier Violence against Detainees in the Gaza Strip: 26
B. Ill-treatment and Torture during Field Interrogations: 28
C. Torture and Ill-treatment during GSS Interrogations: 30
4. Unlawful Combatants: 32
5. The Duty to Investigate Complaints: 38
A. Comprehensive Investigation of the Treatment of Prisoners
and their Conditions of Incarceration: 38
B. Investigation of Individual Complaints of Detainees filed with the
Attorney General and the Chief Military Advocate General: 41
6. Summary and Recommendations: 43
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1
Preface
This research is the product of attorneys meetings with Palestinians detained during Operation Cast
Lead in December 2008-January 2009 and transferred to Israel for interrogation. The report presents
and analyzes the information obtained from these meetings in light of the relevant legal background,
especially the standards set out in international humanitarian law, and the reports and data published
since the end of the hostilities.
The testimonies paint a grim picture and suggest grave violations of the detainees human rights and
gross contempt for the rule of law. This finding demands an independent and impartial criminal
investigation into the manner in which detainees fundamental due process rights were trampled on and
the rule of law brutally disregarded during and after the fighting. Such an investigation is in accord with
the recommendations of the Goldstone Report, which demands an independent investigation of the
actions of the Israeli military forces on the local level, and in the absence of such a local investigation, on
the international level.
The disregard for democratic values and basic human rights along with the suspension of the rule of law
during the hostilities are a reminder of other, dark places where the war on terror is being waged (for
instance, the conduct of the American military towards Iraqi prisoners, the Guantanamo Bay Detention
Center, the Russian security forces in Chechnya, and others). In all of these places, legal black holes
appear, within which detainees have been stripped of their most basic human rights.
The violation of detainees rights during the hostilities was a product of a policy of collective punishment
against the whole population in the Gaza Strip since Israel disengaged in 2005. The unilateral
Disengagement was accompanied by collective punishment and siege, leading to the recent fighting
being carried out with complete disregard for the distinction between civilians and combatants. The
firing of missiles on Israeli civilians in the years preceding the military operation constitute a war crime,
but it can justify neither the sweeping violation of human rights of Palestinian detainees or the complete
suspension of the rule of law.
The abduction and conditions of confinement (in violation of international humanitarian law) under
which Israeli soldier Gilad Shalit is being held by the Islamic Resistance Movement (hereinafter: Hamas)
do not justify the violation of human rights of Cast Lead detainees and the conditions of their
detention.
The creation of legal black holes leads to massive and rapid deterioration of human rights. We hope that
this report will help to shed light upon and to fill in the black hole the moral and legal cavity which
characterized the treatment of detainees, and which symbolizes the institutionalized disregard for
human rights and the laws of war on the part of the political and military systems, and the refusal of the
Israeli government to enforce the rule of law in these cases.
Dr. Ishai Menuchin, The Public Committee Against Torture in Israel and
Adv. Hassan Jabareen, Adalah The Legal Center for Arab Minority Rights in Israel
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2
Introduction
Much has been written on the military operation launched by Israel in the Gaza Strip on December 27,
2008, which lasted until January 18, 2009.1 Violations of international law by Israel have received much
attentionincluding both violations of human rights and violations of the laws of war. This report will
focus on an aspect of these violations which has not received much coverage: the way that Israel treated
Palestinian residents of the Gaza Strip who were deprived of their liberty, whether detained or
imprisoned, during the operation.
Background: The Operation in Gaza, December 2008-January 2009
Preceding the military Operation Cast Lead (hereinafter: the operation or Cast Lead) was a siege,
which continues until today, on the 1.5 million residents of the Gaza Strip, immediately following the
seizure of Palestinian Authority institutions by Hamas in June 2007. We note that the Gaza Stripconstitutes occupied territory since June 1967.2 The operation was meant, according to the Israeli
government, to change the security situation in the south of Israel. In reality, it reaped unprecedented
destruction and claimed a large number of civilian victims. Among the reasons for the death and injury
of so many Palestinian civilians in the fighting were the bombing of civilian buildings and institutions and
inaccurate or indiscriminate attacks in densely populated areas; grave damage to the health and
emergency rescue systems; and the collapse of electricity, water and sewage infrastructure. The
Palestinian armed groups also fired on Israeli civilian targets, though the damage caused was
comparably small.
In an examination of the publications and reports on the Gaza offensive by international organizations,
especially the UN and its different agencies and international, Palestinian and Israeli human rights
organizations, a variety of subjects are raised, including: damage to UN facilities in the Gaza Strip; harm
to civilians during the fighting; the use by military forces of prohibited weaponry; use of Palestinian
civilians as human shields; damage to hospitals and ambulances and killing of and injury to medical
teams; harm to children during the operation; consequences of the operation on the population from a
gender perspective and through the eyes of women; grave damage to the infrastructure in the Strip; and
1The Israeli government did not declare Operation Cast Lead to be a war as required in clause 40( ) of Basic
Law: the Government. Hence, the war action remained under clause 40() of the basic law, which allows the
government to order military actions necessary for protection of the state and public security.2
At the time of Israels military withdrawal/Disengagement from the Gaza Strip and on 12 September 2005,
Israel declared its military administration over Gaza to have ended. At the same time, jurisdiction over Palestinian
from the Gaza Strip in Israeli civilian courts was enacted by clause 13 of the Criminal Code 1977. According to this
legal model, residents of the Gaza Strip would be accused of committing foreign crimes. For this purpose there was
a need for the written agreement of the Attorney General in order to try them in court, see clause 9(B) of the
Criminal Code. This view is internationally unacceptable; as long as Israel continues to enforce its sovereign
authority in the Gaza Strip it remains occupied territory. Among other examples, that can be enumerated are
Israels complete control over: the airspace and waters of the Strip; the population registrar; movement between
the Gaza Strip and the West Bank; the entry of products into the Strip; and the tax system. See: Sari Bashi and
Kenneth Mann, Disengaged Occupiers: The Legal Status of Gaza
http://www.gisha.org/UserFiles/File/Report%20for%20the%20website.pdf. See also
www.btselem.org/english/Gaza_Strip/Gaza_Status.asp.
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violations by Palestinian armed groups.3 The Report of the United Nations Fact Finding Mission on the
Gaza Conflict (hereinafter: the Goldstone Report) received the most public attention.4 Yet despite the
large amount of material analyzing the operation, there is no detailed description of the fate of those
Palestinians arrested and detained during Cast Lead.
This report will attempt to fill the gap in the literature. The report is based mostly on testimonies taken
by the Public Committee Against Torture in Israel (hereinafter: PCATI) and Adalah: The Legal Center for
Arab Minority Rights in Israel (hereinafter: Adalah) during prisoner visits by attorneys on their behalf.5
Some of the testimonies have been provided anonymously because the victims were unwilling to be
identified publicly. They declined to have their names published because, among other reasons, of the
fear of revenge actions against them or their loved ones at the hands of the interrogation and detention
services or the army.
The report focuses on a number of grave violations of international law concerning human rights and
the laws of war carried out by the security forces. The subjects will be separated into sections in which
the factual findings will be presented, mostly from the testimonies taken; the legal norms on the
different subjects will be presented, which suggest that Israel acted in violation of these legal norms
based on international agreements to which Israel is obligated to adhere and with which it is obliged to
act in accordance.
3Report of UNHQ Board of Inquiry into incidents in the Gaza Strip between 27 December 2008 and 19 January
2009- SecGen Summary, letter to SecCo President (May 2009); Amnesty International, Israel/Gaza: Operation
"Cast Lead": 22 days of death and destruction (July 2009); Euro-Mediterranean Human Rights Network, Active
but Acquiescent: EU's Response to the Israeli Military Offensive in the Gaza Strip (May 2009); FIDH, The
International Federation for Human Rights, Operation Cast Lead, Gaza Strip One Year After, Accountability A keychallenge for peace (December 2009); Human Rights Watch, Precisely Wrong: Gaza Civilians Killed by Israeli
Drone-Launched Missiles (June 2009); Human Rights Watch, Rain of Fire: Israel's Unlawful Use of WhitePhosphorus in Gaza (March 2009); Human Rights Watch, White Flag Deaths: Killings of Palestinian Civiliansduring Operation Cast Lead (August 2009); Report of the Independent Fact-Finding Committee to the League of
Arab States on Gaza: No Safe Place (April 2009); Al Mezan Center for Human Rights, Hiding Behind Civilians: Al
Mezan report on the Use of Palestinian Civilians as Human Shields by the Israeli Occupation Forces (April 2009);
Al Mezan Center for Human Rights, The Targeting of Medical Centers, Ambulance Teams and Civil Defense Teams
during the Israeli Offensive "Operation Cast Lead" against the Gaza Strip, 27 December 2008 18 January 2009
(March 2009); Palestinian Centre for Human Rights, Targeted Civilians: A PCHR Report on the Israeli Military
Offensive against the Gaza Strip (27 December 2008 18 January 2009) (September 2009); Palestinian Centre for
Human Rights, The Impact of the Israeli Offensive (27 December 2008 18 January 2009) on the Water andSewage Sectors in the Gaza Strip (July 2009); Palestinian Centre for Human Rights, Through Women's Eyes: APCHR Report on the Gender-Specific Impact and Consequences of Operation Cast Lead (September 2009);
Palestinian Centre for Human Rights, War Crimes against Children: new report on the 313 children killed during
Gaza offensive (May 2009); Btselem: The Israeli Information Center for Human Rights in the Occupied Territories,
Guidelines for Israels Investigation into Operation Cast Lead (February 2009);Briza, Special Edition, Protocol for
Combatants Discussion of Rabin Pre-Military Preparation School Graduates, in the Context of Operation Cast
Lead (March 2009) (in Hebrew); The Public Committee Against Torture in Israel, No Second Thoughts: Changes in
the IDF's Combat Doctrine In Light Of Operation Cast Lead (November 2009); Breaking the Silence, Cast Lead:
Testimony of Soldiers who Served in Operation Cast Lead (July 2009).4
Human Rights Council, Report of the United Nations Fact Finding Mission on the Gaza Conflict, UN Doc.
A/HRC/12/48, 25 (September 2009).5
All of the attorneys took testimonies on behalf of PCATI, except Adv. Maher Talhami, who took testimonies on
behalf of both PCATI and Adalah.
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4
The first chapter will discuss the lost time, the period between the detention or arrest of the
individuals and their transport to and absorption at official detention facilities in Israel. This chapter will
include a discussion of the refraining from notification about arrests; the significant time that often
passed without a detainees loved ones being informed of his fate; and the use by the security forces of
Palestinian civilians as human shields during the ground operation in the Gaza Strip. The second
chapter will deal with the physical conditions under which Gaza residents were held from the moment
of detention by the army until the conclusion of their interrogation by the General Security Services
(hereinafter: GSS, or Shabak). The third chapter of the report will focus on torture, ill-treatment and
cruel, inhuman or degrading treatment of the detainees at the hands of the security forces from the
moment of their detention by soldiers until the conclusion of their interrogations by the GSS. The fourth
chapter will discuss the holding of a number of detained Gazans as unlawful combatants in accordance
with the Incarceration of Unlawful Combatants Law - 2002. The chapter will further discuss the
consequences of an individual being classified as an unlawful combatant. The fifth chapter will bededicated to the obligation upon Israel to investigate the suspicions of grave violations of international
humanitarian law (hereinafter: IHL) and human rights law. The chapter will focus on the general duty to
investigate complaints or reports concerning treatment of detainees and on the duty to investigate
specific cases brought to the attention of law enforcement authorities. We shall conclude with a chapter
of recommendations.
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5
1. The Lost Time
The arrest and detention of Palestinian residents of Gaza came in several stages. This chapter will focus
on the first stage of their detention, that is, during the period of time in which the army held
Palestinians in the Gaza Strip before their transfer to detention centers in Israel. The chapter will deal
with the lack of immediate notification regarding the detention of individuals and the use of Palestinian
civilians as human shields by the Israeli military forces during this period.
A. Refraining from Notification of Detention
With the detention or capture of an individual, international law requires notification to the individualsfamily and the International Committee of the Red Cross (hereinafter: ICRC) as soon as he is interned,
or at the latest not more than one week after his arrival in a place of internment, even when being
transferred to a temporary camp. This is to be done through the distribution of an internment card
which shall include the detainees address and state of health, to be sent quickly and without delay.6
This obligation is based on Article 92 of the UN Standard Minimum Rules for the Treatment of
Prisoners.7
Israeli law imposes upon the detention and interrogation systems an obligation to give notice upon
detention or change in place of detention, without delay, to an individual close to the detainee and the
detainees attorney. The Israeli Supreme Court recognized this notification obligation as a part of the
basic rights of a detainee, and ruled that the proper authorities inform his relatives of his arrest and his
place of detention so that they will be apprised of what befell their detained relative, and how they are
able to offer him the assistance he requires to safeguard his liberty. This is a natural right derived from
human dignity and general principles of justice, and accrues both to the detainee himself and to his
relatives.8 The court ruled that this right constitutes a guarantee for other basic rights such as the right
to liberty, to life and to bodily integrity.9
6This obligation is based upon Article 106 of the Convention (IV) relative to the Protection of Civilian Persons in
Time of War, Geneva, 12 August 1949 (hereinafter: The Fourth Geneva Convention) and in Article 70 of
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 (hereinafter: The Third
Geneva Convention).7Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the
Prevention of Crime and the Treatment of Offenders held at Geneva in 1955, and approved by the Economic and
Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 (hereinafter: Minimum
Standards for Treatment of Prisoners).8
HCJ 670/89 Odeh v. Commander of IDF Forces in Judea and Samaria, Piskei Din 43(4) 515, 517 (1989) (in
Hebrew). An unofficial translation of the judgment can be viewed at HaMokeds website:
http://hamoked.org.il/items/50_eng.pdf.9
See Article 33 of the Criminal Procedure Law (Enforcement Authorities Detentions), 1996, Book of Laws 1592;
Article 78A(b)of Security Instructions Order (Amendment 53)(Judea area)(No. 1220)(5748-1988); HCJ 9332/02
Islam Muhammad Rushdie Jirar v Commander of IDF Forces in the West Bank, Tak-El 2002(4) 737 (2002). For a
current ruling on the notification requirement and its importance see HCJ 9332/02 Jirar v Commander of IDF
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The Supreme Court decided upon a maximum period of 24 hours for the provision of information on the
place of detention of an individual.10 In this context, the Supreme Court in the Hirbawi Affair gave
official status to an agreement on the implementation of the notification obligation which requires,
among other things, a commitment by the authorities to pass on information by telephone, upon their
own initiative and without delay, to the relatives of the detainee and, upon the detainees request, also
to his attorney. Likewise, the court decided that the Supervision and Control Center of the IDF
(hereinafter: the SCC), is responsible for collecting current information regarding detentions and the
place of detention of individuals, in a manner which will enable the locating of detainees if such
information is requested by an outside body. The court further ruled that the SCC shall convey this
information not only to the detainees family and attorney, but to public organizations dealing with
prisoners rights as well.11
From the outset of the attack and especially with the entry of ground troops to the Gaza Strip, PCATI,
Adalah and other human rights organizations in Israel received dozens of requests from Palestinians in
Gaza and from Palestinian human rights organizations for information on Palestinians detained or
arrested in their homes during the operation. These requests continued to be made until after the
ceasing of hostilities, as the military authorities failed to provide notification of the arrests.
Human rights organizations in Israel cooperated by taking a number of steps to locate the detainees.
Based initially on publications in the Israeli media12 suggesting mass arrests were planned during the
military operation, and later on reports of hundreds of Palestinians arrested and under IDF custody,
PCATI and the Association for Civil Rights in Israel (hereinafter: ACRI) complained on January 8, 2009, in
the name of a number of human rights organizations in Israel to the Chief Military Advocate General
(hereinafter: CMAG), demanding current information on those detained during the operation in Gaza.
The organizations demanded the creation of a mechanism by which people whose relatives were
arrested and representatives of human rights organizations could immediately inquire as to where the
detainees were being held.13
The CMAGs laconic answer of January 19, 2009 regarding the notification obligation sufficed with
pointing out that the ICRC was informed of the detentions of Palestinians in Gaza , and did not include
information about the date of the detentions. The answer further failed to include other details about
Forces (decision delivered on 20.12.2002) (in Hebrew). See also Delay of notification of arrest Guidelines of the
Attorney General 2003.4 (5764).10
HCJ 10447/07 Dabek v Commander of IDF Forces in the West Bank (decision delivered 17.11.2009), filed by
HaMoked Center for the Defense of the Individual which regularly assists in locating Palestinians detained by
Israeli security forces.11
HCJ 6757/95 Hirbawi v Commander of IDF Forces in Judea and Samaria, Tak-El 96(1) 103 (1996) (in Hebrew). An
unofficial translation of the decision can be found on the website of HaMoked: http://www.hamoked.org.il. The
aforementioned agreement was put in writing on 3.3.1996 by the Commanding Officer of the SCC detention
command.12
Hanan Greenberg, "Gaza op: Most detainees not Hamas men," Ynet 13.1.2009. The article can be viewed at:
http://www.ynet.co.il/english/articles/0,7340,L-3655587,00.html.13
The letter from Adv. Lila Margalit and Adv. Bana Shoughry-Badarne to the CMAG (8.1.2009) can be viewed on
the website of PCATI: www.stoptorture.org.il/en.
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the detention conditions of the detainees, except for the fact that the ICRC was allowed to visit Teyman
Field army camp and meet the prisoners there.
In parallel, HaMoked Center for the Defense of the Individual (hereinafter: HaMoked) requested onJanuary 7, 2009 from the SCC to locate tens of Palestinians whose relatives reported they had
apparently been arrested by the army. The following day HaMoked was informed that the SCC was
unable to provide information about the detainees, and thus HaMoked immediately filed a habeas
corpus petition in the name of 15 of the detainees.14 The states response of January 11, 2009 included,
for the first time, information about the petitioners: who was detained, who was released, and where
they were held.15 The response further noted that, As long as the fighting continues in the Gaza Strip,
the IDF may detain more Palestinian residents. The names of those detained shall be passed to the SCC
of Incarceration, under the Military Police. An effort will be made to ensure that the names be relayed
to the SCC of Incarceration not later than 48 hours after their transfer to Israel (emphasis added). It will
be possible to address the SCC of Incarceration regarding specific detainees in accordance with the
existing guidelines of the SCC of Incarceration.16
The state attorneys response implies that the state was not willing to ensure notification of detention
while the army was still holding a detainee in the fighting zone and that the time allowed for notification
would be counted only from the moment of his transfer to Israel. This interpretation of the states
notification obligation has no legal basis, as the obligation to notify is relevant from the moment of
transfer to any temporary camp, even if this camp is located outside the sovereign territory of the state
responsible for the detention. Our view is that the obligation to notify of detention and place of
detention is valid also during hostilities. In this instance, the state attempted to release itself from the
notification obligation whenever the detainee is not in Israeli territory. In this way detainees are held
illegally for an unlimited amount of time in the fighting zone, as captives under the exclusive control of
the military. Even if in exceptional cases the notification obligation was impossible to fulfill, the
authorities must act to fulfill it from the first moment those exceptional circumstances cease to exist.
The official time of arrest has many consequences: for example, it will determine the time at which the
detainee will be brought before a judge for a hearing on whether to extend detention, as well as the
date until which the detainee may be prevented from meeting an attorney. Furthermore, failure to
notify about detention poses a serious danger that the army will use the detainees for its own security
and fighting needs, while humiliating and even torturing them.
The states response further shows that it places the obligation to provide notification of detention,
which legally it must fulfill, on the shoulders of the detainees themselves, their families and those
14HCJ 289/09 Habib Attar v IDF, Tak-El 2009(1) 2437 (2009) (in Hebrew). The complaint, filed on 8.1.2009, can be
viewed on the website of HaMoked: www.hamoked.org.il (in Hebrew).15
The answer did not specify whether or not this information had been passed on to the ICRC.16
See HCJ 289/09 Habib Attar v IDF, note 14 above. See also, the habeas corpus appeal from HaMoked, the states
response and the response of the petitioners to states response. The request was rejected on the basis of legal
precedent and not on its own merits. To view these files, see HaMokeds website and the Supreme Court website:
www.court.gov.il. See also: Article 51 of the 4th
Geneva Convention, which states, The Occupying Power may not
compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at
securing voluntary enlistment is permitted.
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concerned with their well-being. According to the states argument, the detainees families are
responsible for approaching the authorities to receive information about their loved ones, and not vice-
versa.
The result is that although the Israeli military held most of the detainees from January 3, 2009,
substantive information about them surfaced only in response to the petition on January 11, 2009. This
time gap is a serious digression from the deadline dictated in both Israeli and international law.
The experience of operation Cast Lead shows that suspicions of exploitation, ill- treatment and
humiliation were not baseless. Seemingly the lack of public supervision allowed for the use of detainees
as human shields, which will be detailed in the following section.
B. The Use of Protected Persons as Human Shields
During the time in which the army held detainees in the Gaza Strip, with no supervision and with no
judicial review, the soldiers treated them cold-heartedly and illegally exploited them for military
purposes, especially in order to help protect the lives of the Israeli soldiers. Some of the detainees
interviewed by PCATI and Adalah described how the army used them as human shields for many days,
sometimes even for as long as ten days.17
The use of civilians for military purposes as human shields constitutes a grave violation of both
international and Israeli law. The Fourth Geneva Convention explicitly forbids all use of the protected
civilian population to assist the military needs of the occupying army or forced use of the local residents
as a means towards military advantage or for the securing of intelligence.18 The prohibition includes the
use of civilians as human shields, their taking as hostages, and the threatening of family members with
physical harm in order to extract information about their relatives.
Professor Jean Pictet, in his commentaries on the Fourth Geneva Convention, described the use of
persons as human shields as a cruel and barbaric act.19 Although, according to Pictet, the occupying
power may under certain circumstances implement means to achieve control and security, it is not
allowed to make use of protected persons to attain these goals.20
The use of protected persons as human shields also violates the dignity of the Palestinian residents and
their right to protection from violence and humiliation. As such the army also violated Article 27 of the
Geneva Convention, which enforces the rights of protected residents to dignity and humane treatment.
Article 147 of the Fourth Geneva Convention defines the grave breaches of the Convention, which form
the general basis for defining war crimes.21 These grave breaches include the prohibitions on taking of
17Amos Harel, Barak: Criticism of IDF should be directed at me, Haaretz, July 15, 2009. The article can be viewed
at http://www.haaretz.com/print-edition/news/barak-criticism-of-idf-should-be-directed-at-me-1.280018.18
See for example, Articles 28 and 51 of the Fourth Geneva Convention, and note 6 above.19
J. Pictet, Commentary IV Geneva Convention 208 (1958).20
See for instance the final clause of Article 27 of the Fourth Geneva Convention, cited in note 6 above, which
states: However, the parties to the conflict may take such measures of control and security in regard to protected
persons as may be necessary as a result of the war.21
Article 147 of the Fourth Geneva Convention, cited in note 6 above, states: Grave breaches to which the
preceding Article relates shall be those involving any of the following acts, if committed against persons or
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hostages and on coerced service in the occupying army. Further, grave breaches of the Fourth Geneva
Convention are included among the crimes the International Criminal Tribunals for the former
Yugoslavia (1993) and Rwanda (1995) were authorized to prosecute. For example, Article 2 of the
Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) states that compelling a
civilian to serve in the forces of a hostile power or taking civilians as hostages, among other violations,
constitute grave breaches of the Fourth Geneva Convention and hence the Tribunal is authorized to
prosecute these crimes. Article 4 of the Statute of the International Criminal Tribunal for Rwanda (ICTR)
contains similar prohibitions on the taking of hostages. Also in the Statute of the International Criminal
Court (ICC) (1998), Article 8 defines war crimes as grave breaches of the Fourth Geneva Convention
including the compulsion of protected persons to serve in the forces of a hostile power and the taking of
hostages.
The compulsion of Palestinian civilians to serve as human shields for the army, while they were under
the complete control of the soldiers, was an intentional act which exposed their lives to danger and
caused them fear and suffering. With these acts the army also violated the prohibition on torture and
cruel, inhuman and degrading treatment or punishment, as protected by the Convention Against
Torture, mentioned above.
The Israeli Supreme Court has also banned the use of protected civilians as hostages and as human
shields.22 In the detailed precedent-setting decision from 2005, the Supreme Court accepted Adalahs
petition, filed on behalf of Adalah and other Israeli and Palestinian human rights organizations, and
completely and unconditionally prohibited the use of civilians as human shields. The petition was filed
during Operation Defensive Shield in 2002, when Israeli army forces invaded the Jenin refugee camp
and Palestinian cities and towns throughout the West Bank. Reports published by various human rights
organizations, such as Btselem, Amnesty International23 and Human Rights Watch,24 documented at the
time the manner in which army forces carried out unlawful acts in the refugee camp and other cities and
charged that these acts constituted war crimes. On the basis of these reports, the petitioners argued
that Israels actions violated international humanitarian law and international criminal law as well as the
prohibition on violating the life, bodily integrity, liberty, and dignity of residents under the Israeli Basic
Law: Human Dignity and Liberty.
The Supreme Court ruled unequivocally that it is forbidden to exploit the civilian population for the
military needs of the occupying power or to volunteer them into cooperation with the army. From this
general prohibition, the court ruled, follows the specific prohibition on use of local residents as human
property protected by the present Convention: willful killing, torture or inhuman treatment, including biological
experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer
or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile
Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present
Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly.22
HCJ 3799/02 Adalah: The Legal Center for Arab Minority Rights in Israel v GOC Central Command, IDF Tak-El
2005(4), 49 (2005) (in Hebrew). An English translation of the petition and decision can viewed at Adalahs website:
http://www.adalah.org/features/humshields/decision061005.pdf.23
Amnesty International, The Heavy Price of the Israeli Incursions, April 2002, p 11.24
Human Rights Watch, Jenin: IDF Military Operations, May 2002.
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shields in order to gain information or to pass along messages or warnings.25 The court emphasized
that the source of this prohibition was, among other things, the international humanitarian law, which
prohibits the use of protected persons as part of the war effort and requires separation between the
civilian population and the military action. The court further emphasized that the army must not send a
local resident into the area within which a military action is taking place, even with his permission, ruling
that the inherent inequality between the occupying power and the local resident eliminates any realistic
possibility that the local resident could resist the armys instructions; as such it is clear that in most cases
the residents agreement or consent would not be honest or true.
Despite the prohibition imposed by the Supreme Court on the use of Palestinian civilians as human
shields and the dictates of international law, the army continues to use this illegal practice both in the
West Bank26 and in the Gaza Strip, including during Operation Cast Lead. And indeed, some of the
detainees interviewed by PCATI and Adalah testified that they were used by soldiers as human shields. It
seems that this use, in violation of the courts ruling, was made possible, among other things, by the lack
of supervision over the treatment of the detainees, which in turn was possible due to the failure to
provide notification of their detention.
What follows are excerpts from the testimonies taken from detainees relating the manner in which they
were used as human shields by IDF soldiers, in violation of the Supreme Courts ruling.
Mr. Abed Elkarim Mustafa Salah and his minor son
Mr. Abed Elkarim Mustafa Abu Salah is a resident of Jabalia, a father of nine and a construction worker
by trade. On January 4, 2009 at 14:00 some 20 soldiers burst into his home, carried out an aggressive
search causing much damage to the contents of the home, and arrested him and his minor son, Amin. In
his testimony Salah describes, among other occurrences, how he and his son were used as human
shields over a period of 10 days during which they were held by the army in the fighting zone. His
description follows:
At around 14:00 on January 4, 2009, while I was sitting with my family to eat lunch in
my house in Izzbat Abed Rabbo (neighborhood), army soldiers burst the door of my
house and around 20 soldiers entered the house [...] Afterwards they took me out of the
house and instructed me to tell my wife and children to walk in the direction of Jabalia
[...], the Israeli army detained me and my son [...] The soldiers tied my hands and my
sons hands [...] with plastic handcuffs [...] For a period of 10 days the soldiers used me
and my son as human shields, when they would force us to enter peoples houses in
order to search for people in the house. After we would leave the house the soldiers
would send a dog inside and after that they would enter.
During this whole period my son and I were transported with the soldiers and in the
night they would take us back to sleep in the house of Ismail Nabhan. Over this period of
25HCJ 3799/02 Adalah, note 22 above, paragraph 24.
26For cases in which Palestinian civilians were used as human shields, see Adalahs report at:
http://www.adalah.org/newsletter/eng/jul09/Rana_Human_Shields_update_report_Englsih_july_2009.pdf.
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10 days the soldiers sent us into countless homes [...] Entering the houses, searching in
them and opening the doors and the windows.27
After being brought to Israel, Mr. Abu Salah was declared an unlawful combatant and released fourmonths later without charge.
On June 18, 2009 Adalah submitted a complaint to the CMAG on behalf of Mr. Abu Salah demanding the
opening of a criminal investigation against the soldiers. On August 27, 2009 the Military Polices Criminal
Investigations Division (hereinafter: CID) informed Adalah that a criminal investigation had been
opened. Mr. Abu Salah and his son Amin testified before the CID on November 24, 2009. No decision has
yet been announced in their case.
Amin, Mr. Abu Salahs minor son, testified that the army also used his cousin Yusef (19), who suffers
from mental retardation, as a human shield. According to Amin, Yusef was ordered by the army to enter
houses, open windows and doors and destroy house fences.28
Mr. Sameer Muhammad Ali Al-Attar
Mr. Sameer Al-Attar is a resident of Beit Lahiya, works as a driver and is a father of six. On January 5,
2009 the army began to fire toward his home, forcing the family to flee from the house. As the family
left their home, the soldiers detained Mr. Al-Attar, his minor son and eight other residents, and turned
them first into a human shield chain for the soldiers, and then into hostages while they fired from the
house in which the detainees were being held:
While they took me from the house along with 8 other detainees to the house of Khalil
Attar, the soldiers shackled us with plastic handcuffs, ordered us to hold hands and to
walk as a chain with our backs to the soldiers. That is, we were walking down the street.
In the house of Khalil they separated us and shackled my hands behind my back with
plastic handcuffs. My eyes were not covered.
The soldiers took me to a room, ordered me to sit on the ground and began to fire in the
direction of the houses. There was no firing in the direction of the soldiers. Anyone
outside could easily see that we were located in the room next to the soldiers.
After some time, my eyes were covered along with those of all the detainees, and we left
the house. The soldiers walking on the sidewalk told us to walk one after another in the
middle of the road, while every detainee held the clothing of the detainee in front of him.
During this time the soldiers would fire in the direction of the houses. I could hear them
speaking in Hebrew and firing in all directions.29
On July 6, 2009 Adalah petitioned the CMAG in the name of Sameer Attar, demanding the opening of a
criminal investigation against the soldiers. To date, no investigation has been opened in the case of Mr.
Al-Attar and he has not been summoned to testify before the CID of the Military Police.
27From the affidavit of Mr. Abed Elkarim Mustafa Abu Salah taken on April 28, 2009 in Ketziot Prison.
28Reported by Amin Salah to the Al Mezan Center for Human Rights in Gaza on September 5, 2009.
29From the testimony of Sameer Attar, given to Adalah in a telephone conversation in July 2009.
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Mr. Rami Abed Rabbo
Mr. Rami Abed Rabbo is a resident of Jabalia. At around 16:00 on January 6, 2009 he was in his home
together with 15 family members when they were ordered, along with the other residents of theirneighborhood, to leave their home before it would be bombarded. In his affidavit, Mr. Abed Rabbo
describes how he, his brother Raji and Hamad Abed Rabbo were used as human shields over a period of
three days during which they were held by the army:
At 19:00 an officer arrived and checked our identity card numbers on a small computer.
After the check, the officer released all the men except for me and my brother Raji
Misbah Abed Rabbo and Hamad Abed Rabbo. After the check the soldiers shackled our
hands behind our backs with plastic handcuffs. Afterwards, and for a period of three
days, the soldiers held us with them and sent us from house to house in the
neighborhood, which we would enter through the windows and balconies. During these
three days we were shackled with plastic handcuffs and the soldiers did not provide us
with food or water, and they used us as human shields when they would send us into
houses before they entered themselves, and on their orders checking if there were
people in the houses ... The next morning around 05:00 the soldiers ordered us to leave
the house with them and to advance within the neighborhood, instructing us to walk at
the front of the force with the soldiers behind us and aiming their weapons toward us.
On that day the soldiers ordered us to enter first to three different houses in order to
carry out a search and make sure there were no people inside. The soldiers, after we
would exit the house, would send a dog and after it exited they would check a
mechanism hanging around its neck and only then entering the house and setting up
there.30
A complaint on behalf of Mr. Abed Rabbo was filed with the CMAG in September 2009 by Adalah, but to
date no criminal investigation has been opened.
Mr. Raji Abed Rabbo, who was with Rami during their use as human shields, testified that:
After that we were moved to several more houses of neighborhood residents, as I and
another 9 people were sent into the houses before the soldiers and at their command.31On April 8, 2009 Adalah demanded that the Attorney General open a criminal investigation in the case,
which was transferred to the Military Polices CID. In October 2009, CID asked Adalah to provide them
with medical documents supporting his claim that he had been injured as a result of being struck by the
soldiers. To date, no information has been received from the Military Police regarding the progress of
the investigation.
The Goldstone Mission issued findings and conclusions on the Israeli militarys use of Palestinians as
human shields. The investigators of the fact finding mission were presented with many complaints in
this regard, and the Mission researched and documented four cases in detail. The Mission concluded
30From the affidavit of Mr. Rami Abed Rabbo taken on September 3, 2009 in Eshel Prison.
31From the affidavit of Mr. Raji Abed Rabbo, taken by the Public Committee Against Torture in Israel on February
23, 2009.
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that Palestinians were indeed used as human shields, in contrast to the armys denials published in the
media.32 The states response to the Goldstone Mission report confirmed that the complaints were
transferred for criminal investigation, yet it failed to specify the exact number of complaints and did not
provide updates on the results of the investigation.33
Therefore, the Israeli military gravely violated several articles of the Fourth Geneva Convention in its use
of civilians for military purposes through coercion, and their humiliation, injury and taking as hostages.
Thus Israel committed war crimes on the basis of the Geneva Conventions, and the definition of war
crimes in the Statutes of the ICC, the ICTY and the ICTR.
The failure of the army and the detention authorities in Israel to notify human rights organizations and
the families and attorneys of the detainees of their detention and place of detention over a significant
period, beginning with the first detentions on January 2, 2009 and until January 11, 2009, constitutes a
grave infringement of the basic rights of the detainees, as well as a breach of the states obligation to
pass on such information. The State of Israel must abide by the domestic and international law requiring
the conveying of messages without delay on the detention of individuals and their location. It must do
so both upon its own initiative and at the request of any authorized person, including a detainees
relative, attorney, the ICRC, the Public Defenders Office or a human rights organization, no matter the
circumstances of the detention. The lack of information regarding the detainees and their detention
location and conditions constitutes an opening for violence and ill-treatment, which at times
deteriorated to torture by Israeli soldiers, GSS interrogators and Israel Prison Service guards. All of these
acts constitute grave violations of Israeli and international law, and were made possible by exploiting
the state of war and the lack of judicial review of the armys actions.
32See the Goldstone Report, note 4 above, Paragraphs 1106-1032 and 1925-1926. Despite the armys denial of
having used Palestinian civilians as human shields, on March 11, 2010 the Military Advocate General filed an
indictment against two soldiers accusing them of using Palestinians as human shields during Operation Cast
Lead. The two soldiers from the Givati Brigade were charged with violating their authority and for inappropriate
conduct, on suspicion of forcing a 9 year-old Palestinian boy to open several bags suspected of containing
explosive devices. See article on the subject from March 11, 2010 on the Haaretz website:
http://www.haaretz.com/news/two-idf-soldiers-charged-with-using-9-year-old-human-shield-in-gaza-war-
1.264652.33
The states response to the Goldstone Report from January 2010. The response can be downloaded at the
following link: http://www.law.idf.il/SIP_STORAGE/files/3/713.pdf.
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2. Conditions under Detention and Imprisonment
I was held inside the crater together with some 70 other civilians, most of whom I know
from the neighborhood. During this period I was not interrogated and to the best of my
knowledge no one else was interrogated either. On Wednesday [apparently January 7,
2009] they put everyone on a truck, covered our eyes and we drove, with a tank in front
of us, to an army post near the sea which was built after the Disengagement. The post
was five kilometers from the place in which I was held. My son Hussein was left in the
crater and I do not know what happened to him.34
This chapter will examine the physical conditions under which detainees were held over the course of
the operation, from the moment of their arrest or detention by the army until their transfer to the
custody of the Israel Prison Service (IPS). Under international law, from the moment of their detention
by the armed forces, the residents became entitled to protections under international humanitarian law
(IHL) and international human rights law (IHRL). The protections provided by international law to people
deprived of their liberty whatever the circumstances can be summarized in the short, concise words
of the Geneva Conventions: They shall at all times be humanely treated.35 These rules have also been
anchored in Israeli law.
The obligation to act humanely toward those deprived of their liberty has been recognized in manyinternational human rights treaties and conventions. Article 10(1) of the International Covenant on Civil
and Political Rights (ICCPR) states: All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person. Israel ratified this treaty and is
obligated to fulfill its provisions. In addition, international law experts view Article 10 as a part of
customary international law. The Israeli Supreme Court ruled that this article is in keeping with Basic
Law: Human Dignity and Liberty in that it protects the dignity of all individuals, including the detainee.36
This obligation is also anchored in Article 16(1) of the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (hereinafter: CAT), which Israel has also ratified and is
also obligated to uphold.
34From the affidavit of Sameer Attar taken on November 14, 2009, in Ketziot Prison. Mr. Sameer Attar was
detained on Monday morning January 5, 2009, together with his minor son Hussein and many other men from his
neighborhood. At the time of the taking of his affidavit Mr. Attar was being held in Ketziot Prison under the
Incarceration of Unlawful Combatants Law. Mr. Attar has since been released.35
See Article 27 of the Fourth Geneva Convention. See also Article 3(1) common to all four Geneva conventions;
Article 75(1) of the Protocol I Additional to the Geneva Conventions (1977) dealing with wars between states; and
Article 4(1) of the Protocol II Additional to the Geneva Conventions (1977) dealing with wars within states.36
HCJ 5591/02 Yassin v Commander of Ketziot Military Camp, Piskei Din, 57(1) 403, (2003) (in Hebrew) on p. 412.
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The first article of the Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, adopted by the UN General Assembly with regards to detainees and prisoners,37 is
almost identical to the wording of Article 10(1) of the ICCPR noted above. These principles were also
adopted by the Israeli Supreme Court, which ruled that, even if they do not have direct application to
Israeli domestic law, they nevertheless determine criteria by which a reasonable and proportionate
chain of command must function.38 The adoption of the rationale behind these same principles was
proven in a long list of court decisions.39
More specific criteria for protecting the dignity of detainees and prisoners were determined by the
Minimum Standards for Treatment of Prisoners. These were adopted in 1955 by the First United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, and by the United Nations in both
1957 and 1977.40
A further legal source dictating a comprehensive agreement on conditions of detention, most relevant
to the case of detainees from the Gaza Strip, is the Fourth Geneva Convention. The Geneva Convention
requires that detention conditions must ensure the hygiene and the health of the detainees, including
sufficient protection from weather conditions; that the place of detention be adequately heated and lit;
that sleeping quarters be spacious and well-ventilated and detainees be given suitable bedding and
sufficient blankets while taking into account the climate, the detainees age and state of health. Further
there is an obligation to provide daily food and water in sufficient quantity, quality and variety, clean
and hygienic toilets and sufficient water and soap for daily washing and laundry and bathing, and
provision of time for washing.41 In this context the application of the Fourth Geneva Convention is not
considered controversial, as the instructions are of a humanitarian nature and Israel sees itself as
obligated to enforce them.42
37Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Adopted by
General Assembly resolution 43/173 of 9 December 1988.38
See Yassin case, note 36 above; p. 413. See also HCJ 3278/02 HaMoked Centre for Defense of the Individual v
IDF Commander in West Bank, Piskei Din 57(1) 385 (2002) (in Hebrew) (hereinafter: HaMoked Case).39
Crim App 7440/97 State of Israel v Golan, Piskei Din 52(1) 1 (1998) (in Hebrew); HCJL.A. 6561/97 The State of
Israel v Mendelson, Piskei Din 52(5) 849 (2000) (in Hebrew); HCJL.A. 823/96 Vanunu v The Prison Service, Piskei
Din 51(2) 873 (1997) (in Hebrew); HCJ 221/80 Darvish v The Prison Service, Piskei DIn 35(1) 536 (1980) (in Hebrew)
(hereinafter: Darvish case); HCJ 540/84, Yusuf v Director, Central Prison of Judea and Samaria, Piskei Din 40(1)
567, 573 (1986) (in Hebrew); HCJ 253/88 Sajadia v The Minister of Defense, Piskei Din 42(3) 801 (1998) (in
Hebrew) (hereinafter : Sajadia case); HCJ 355/79 Katlan v The Prison Service, Piskei Din 34(3) 294 (1980) (in
Hebrew); PPA 4/82 State of Israel v Tamir, Piskei Din 37(3) 201 (1983) (in Hebrew); HCJ 2245/06 Member of
Knesset Dobrin v Israel Prison Service, Tak-El 2006(2) 3564, 3573 (2006) (in Hebrew); HCJ 4634/04 Physicians for
Human Rights v Internal Secuirty Minister, Tak-El 2007(1) 1999 (2007) (in Hebrew) (hereinafter: Physicians for
Human Rights case); HCJ 337/84 Hukma v Minister of Interior, Piskei Din 38(2) 826 (1984) (in Hebrew); HCJ
7837/04 Borgall v Prison Service, Piskei Din 59(3) 97 (2004) (in Hebrew); HCJ 2605/05 The Human Rights Section
of the Academic College in Ramat-Gan v Minister of Finance, Tak-El 2009(4), 2405 (2009) (in Hebrew).40
Standard Minimum Rules for the Treatment of Prisoners, see note 7 above.41
See Articles 85-90 of the Fourth Geneva Convention.42
See the comments of Chief Justice Barak (ret.) on this subject in the HaMoked Case, note 38 above, pp. 396-7. In
this context, the court further ruled that these instructions have a substantial influence on Israels obligations
toward those detainees held for interrogation purposes, and not only those being detained.
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Israeli law includes comprehensive guidelines for minimum conditions under which a prisoner or
detainee may be held in Israeli detention centers, provided by both primary legislation and secondary
legislation. The general guidelines state that, Detainee must be held under appropriate conditions that
do not harm his Health and dignity.43 Article 9 of the Detentions Law and the regulations issued under
this law, were legislated on the basis of a need to enforce, by means of a detailed law, the authorities
obligation to protect the dignity of the detainee and to ensure that the detainee is held in appropriate
conditions, which will guarantee his bodily integrity, spirit and dignity. The aforementioned article
dictates the rights of the detainee to sanitary detention conditions, to a mattress, a bed, food, light and
ventilation, to a daily walk, to communicate with visitors, to send letters and to other basic conditions.
Israeli law differentiates, and in practice discriminates, between the physical detention conditions of
detainees suspected of security offenses and regular detainees. This differentiation is anchored in
Rule 22 of the Detention Regulations. According to this rule, certain rights will not be provided to
detainees suspected of security offenses and other rights will be respected only partially. For instance,
the right to a daily walk, to a bed,44 to a desk and chair, access to reading material, access to a telephone
and to receive gifts or other items from family members during interrogation, are not applied to
detainees categorized as security detainees. To give a simple and clear example, a security detainees
cell must be painted once a year whereas for other detainees this must be done twice a year.45
International law regarding detainees and prisoners should be incorporated into the Israeli domestic
legal system without any connection to the detainees status, category or the character of the acts of
which they are suspected.46 Even those suspected of the most serious crimes are entitled to be detained
under minimal humane conditions respecting their basic human needs.47 Israeli court rulings emphasize
the need to protect human dignity due to the sensitivity of their status and the presumption of
innocence they are entitled to.48
Thus, Israeli domestic law and international law require that detainees must be treated humanely and
with respect for their human dignity. From this right follows the authorities obligation to hold an
individual under conditions which will enable the physical, spiritual and cultural needs of his existence.
With these rights are counted not only the bare right to eating, drinking and sleeping needed to sustain
the body in a physical sense, but also the minimal human order of a cultural nature by which these
43S. 9 (a) of the Criminal Procedure (Enforcement Powers - Detention), 1996, 1592 (hereinafter: "Detention Law").
Deatailed Regulations found in Criminal Procedure (Enforcement Powers - Detention) (Conditions in Detention),
1997, Compendium of Regulations 5829 ("the Arrest Regulations ")44
On the right to a bed see also: Article 19 of the Minimum Standards for Treatment of Prisoners, note 18 above;
Physicians for Human Rights case, note 39 above; HCJ 5678/02 Physicians for Human Rights v Internal Security
Minister, Tak-El 2003(2) 2647 (2003) (in Hebrew); HCJ 7082/97, HCJ 3910/99 Public Committee Against Torture in
Israel (the petitioner in HCJ 7082/97 and HCJ 3910/99) v Internal Security Minister (decision delivered February
12, 2007); See also, Darvish case, note 39 above.45
See Adalahs letters from April 19, 2009 and September 11, 2009, demanding that this rule be cancelled.46
In the Yassin case, the court ruled that security considerations which brought about the detention of an
individual do not justify his being held in unsuitable conditions. See: Yassin case, note 36 above, p. 411.47
See also Article 11(1) of the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights
and the Fight Against Terrorism, which state: A person deprived of his/her liberty for terrorist activities must in all
circumstances be treated with due respect for human dignity.48
CrimApp 3734/92 State of Israel v Azazmi, Piskei Din 46(5) 72, 79 (1992) (in Hebrew) (hereinafter: Azazmi case).
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needs are enjoyed, in order to sustain the dignity of the individual in the spiritual sense.49 These
general guidelines must be carried out with constant vigilance that at least the minimum requirements
are fulfilled.50 Providing a bed for the detainee, along with a sufficient quantity and quality of food and
provision of the means by which to uphold personal hygiene, make up a minimum required threshold,
which must not be digressed.
Furthermore, our experience and the testimonies that will be presented in this chapter show that
detention conditions during the period of interrogation have for some time served as an interrogation
method, in and of itself, albeit an illegal one (at least according to international law), intended to put
psychological pressure on the detainee in order to break his spirit and force him to cooperate with the
interrogators. Such a means of interrogation constitutes cruel, inhuman and degrading treatment,
prohibited by both the laws of war and by human rights law. In certain cases this interrogation method
is combined with other methods, and together these constitute torture as defined in Article 1 of the
Convention Against Torture.
The following survey of the physical conditions of detention and imprisonment to which Palestinian
detainees were subjected during Cast Lead will deal with both the conditions under which they were
held in the territory of the Gaza Strip and those conditions in detention centers in Israel. There is no
doubt that international law applies to all detainees without exception, and that Israel is obligated to
uphold it. Our view is that the Basic Law: Human Dignity and Liberty also applies to the detention
conditions of detainees within the Gaza Strip just as they do in Israel, because the detaining powers are
the Israeli security forces and army. In any case, although the Israeli Supreme Court has yet to rule on
the applicability of basic laws to the detention conditions of detainees in occupied territories or in a
state of war, the courts opinion is that the principles and rules of administrative law, and with them the
criteria for reasonableness and proportionality, do apply in occupied territory.51
The testimonies and affidavits taken by PCATI and Adalah show that from the moment of their arrest
and detention the detainees were held in disgraceful and inhuman conditions - from their detention in
the Gaza Strip, to their time in temporary military facilities for the purpose of absorption, and continuing
in their cells in IPS detention centers in Israel. The following section concisely describes the illegal
physical conditions under which they were held.
A. Conditions of Detainees in the Gaza Strip
The testimonies collected show that many detainees, including minors, were taken from their homes
and held in large pits, 2-3 meters deep, unsheltered from the bitter cold for days at a time. Each pit held
some 60 or 70 detainees; they were exposed to the rough weather conditions and their hands were
shackled and some had their eyes covered. The detainees were not allowed to leave these pits even to
49Azazmi case, see note 48 above, p. 85.
50See the comments of former Chief Justice Barak on this subject in the HaMoked Case, note 38 above, p. 396.
51See HCJ 2150/07 Abu Safiya v Minister of Defense (decision delivered December 29, 2009), paragraph 14 of
Justice Fogelmans ruling. The courts official English synopsis may be viewed at its website:
http://www.court.gov.il.
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relieve themselves. The sanitary conditions were abysmal, the amount of food and blankets negligible.
Many detainees testified to having been hungry, thirsty and cold. Further, detainees were held adjacent
to combat zones, endangering their lives.52 At least one detainee was held shackled, his eyes covered, in
the shower for two days.53 The detainees descriptions of their detention conditions indicate that the
security forces contravened their basic obligation towards the detainees to protect their dignity and to
prevent their humiliation and debasement, as required by Israeli law, IHL and IHRL.
On January 28, 2009 PCATI, HaMoked and ACRI petitioned the CMAG and the Attorney General
demanding,54 among other things, an investigation of the conditions under which detainees had been
held in the Gaza Strip. To date, about a year and a half since the complaint was filed, the CMAG has
failed to provide any response. The following testimonies by some of the detainees describe the
conditions within the pits:
Testimony of Sameer Ali Muhammad Attar
On the morning of Monday January 5, 2009, Sammer Attar (born 1971), a resident of the Al Atatra
neighborhood, was arrested by the army. Such is his description of the conditions under which he was
held with his minor son (14) for two days adjacent to the combat zone, inside one of the pits:
We arrived at the place where the tanks were posted, and at that moment the tanks
were firing shells on Beit Lahiya. In the place where the tanks were, the Israeli army had
previously prepared a large area, some two dunams, in which it had dug out a crater
with a dirt wall of some two meters. The soldiers ordered us to climb down the dirt walls
and into the crater while shackled, and we were held there under the bare sky for two
days, until Wednesday afternoon [...] The soldiers held us there exposed to the bitter cold
and only on Tuesday morning gave each two of us one blanket. During the whole period
we were shackled and we slept on the dirt. The soldiers would provide us with food once
or twice a day; as for water, we would ask for it and sometimes they would bring us
some, in delay. There were no toilets and they did not provide us with hygienic products
like toilet paper. I was held in the crater with some 70 other civilians, most of whom I
know from the neighborhood.55
Testimony of Hamad Adnan Rajib Attar
Hamad Adnan Rajib Attar, born 1983, is a resident of Beit Lahiya. On January 4, 2009, in the early
morning, shooting soldiers burst into his home and arrested him together with the other men in thehouse. They were removed from the house with hands shackled and eyes covered. Hamad describes in
his affidavit how, after spending a night in one of the houses, he was held in a pit and from there
52Supported, among other affidavits, by those of Raj Misbah Abdullah Abed Rabbo, from February 23, 2009; N.P.A.
from February 26, 2009; and Sameer Ali Muhammad Attar.53
From the complaint of Muhammad Khir Izzat Kisab, filed on January 19, 2009 with the CMAG.54
The petition was filed in the name of these three human rights organizations as well as Btselem, Yesh Din,
Adalah and Physicians for Human Rights-Israel.55
From the affidavit Sameer Attar, taken on January 14, 2009 in Ketziot Prison. On the subject of the pits, see:
Amira Hass, Cast Lead: Gazans detained in giant pit during Cast Lead August 14, 2009: http://www.israeli-
occupation.org/2009-08-14/gazans-detained-in-giant-pit-during-cast-lead/ (hereinafter: Amira Hass).
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transferred to one of the trucks, where he spent a full day shackled with his eyes covered. He was
subsequently moved to another one of the pits. His testimony follows:
At night we were put in one of the rooms of the house, about 12 square meters I would
guess, and they held us there together with some 50 other civilians. During the night we
heard bombardment and firing in the area. The next day at around 16:00, they took us
to an open space near the house, some 100 meters away, and there they put us into a
large pit with a wall of dirt around us, in the place where the tanks were positioned.
There they separated us into two groups. One group, of about 30 people, was loaded
onto a truck. It was very cold and we were forced to sleep in the truck, while I was
shackled and my eyes were covered. The other group was left in the pit. The soldiers
distributed some blankets to the civilians, but not enough for everyone, maybe one
blanket for every two detainees. We were held in the truck until 12:30 the next day. If
one of the detainees had to relieve themselves, he would do so behind the truck. The
soldiers forbade us to talk, and whoever did was struck.56
Two nights later, Mr. Attar was transferred to a second pit, which he describes in what follows:
When we arrived in the pit they removed the handcuffs and took off the blindfolds, but
about two hours later they returned and shackled us and covered our eyes again. We
asked for blankets but they did not bring any, and I was unable to sleep the whole night
because of the cold and the difficult conditions. We were also not provided with food.57
The humiliating conditions in which the detainees were held continued after they were removed from
the pits and moved to other places. There, according to the detainees, the soldiers carried out a group
strip-search, forcing the detainees to strip to their undergarments under the open sky, on rough gravel
and in the bitter cold. The severe descriptions above were repeated in almost all the testimonies taken
from the detainees who spent time in the pits. Some testified to having been held in the pits for no
more than several hours and to being transferred from one pit to another;58 others were held for more
than two full days in the conditions described above and also told of soldier violence and curses and
coarse language.59
B. Conditions in Military Detention Facilities in Israel
Most of the detainees interviewed by Adalah and PCATI spent time initially in the Gaza Strip in the
custody of the army and after some time were transferred to the army facilities Zikim and Sde
56From the affidavit of Hamad Attar, taken on January 14, 2009 in Ketziot Prison.
57See note 56.
58From the affidavit of Khalil Mutzbah Attar, taken on January 14, 2009 in Ketziot Prison.
59From the affidavits of Husam Attar, taken on March 19, 2009 and February 23, 2009. See also: Affidavit of
Ahmad Shehade Abu Salah, taken on January 14, 2009 in Ketziot Prison and the affidavits of N.A., taken by on
February 26, 2009 and April 27, 2009. This detainee complained of violence against him by one of the soldiers after
he asked to be released from his handcuffs due to pain, while he was inside one of the pits.
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Teiman, the latter of which was declared on January 1, 2009 as the place of imprisonment for unlawful
combatants.60 A reading of the testimonies of detainees held in military detention facilities shows that
their basic rights regarding physical detention conditions were infringed upon in these facilities as well.
The detainees were checked by medical practitioners and photographed upon entering the military
facilities. Many complained of the cramped conditions, the quantity of food, the thin mattresses and the
fact that the thin blankets did not protect them from the bitter cold which prevailed during their
detention there. When the detainees were allowed access to the toilet, they were shackled.61 Others
testified to having been transferred to dark trailers with no showers or toilets and without mattresses or
blankets.62 Some of them told of violence and other illegal interrogation methods used against them.63
Testimony of Muhammad Khir Izzat Kisab:
Mr. Muhammad Kisab was detained on January 8, 2009 and was subjected to ill- treatment by Israeli
soldiers, held for two days in the shower in his home. Then apparently he was transferred to thedetention facility at Sde Teiman. He describes the physical conditions there as follows:
After that they transferred us to a military camp near the border. I heard the soldiers
say that it is called Givati. An hour later they put us on a bus and we walked for 40
minutes to a place where I heard the sound of planes. They put us on a gravel floor, my
father, my two brothers and I. A medical checkup was done on us, and then we were
moved to a trailer made of canvas without mattresses or blankets. The room was closed.
It had one ventilation hole on the roof and it was completely dark. There was no toilet.64
On January 19, 2009 PCATI petitioned the CMAG in the name of Mr. Muhammad Kisab, demanding the
opening of a criminal investigation against the officers and soldiers on suspicion of harsh violence during
the arrest. On February 22, 2009 the Operations Division of MAG confirmed receiving the complaint. To
date, no information has been received regarding the opening of an investigation or its conclusions.
The following is Moussa Muhammad Wahadans description of the cell in which he was held in the
Zikim Military Camp:
At Zikim I was held for four days in a small cell, a trailer, of about 1.5 to 2 meters. In
the cell there was no toilet or shower and the soldiers would take me out 3 times a day
to use the toilet, after my asking them several times. In addition there was no running
water in the cell and the soldiers provided me with a bottle. The trailer was paintedwhite and was completely empty. Only after two days did the soldiers provide me with a
5-centimeter thick mattress and one good blanket. For the first two days I slept on the
60See: Imprisonment Order for Unlawful Combatants (Place of Imprisonment, 2009 in Hebrew).
61From the affidavits of M.A., taken on February 23, 2009 and March 25, 2009 in Shikme Prison.
62See excerpts of the affidavit of Muhammad Azat Kasab below. An identical description of a trailer was presented
by the detainee Sameer Attar in his affidavit taken on January 14, 2009 in Ketziot Prison.63
See Chapter 3, which discusses the illegal interrogation methods and torture to which the detainees were
subjected.64
Translation of affidavit in Arabic given by Mr. Kisab to Al Mezan Center for Human Rights on January 12, 2009, at
the Magistrates Court in Beer Sheva.
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floor with no covers and I suffered from the bitter cold. The soldiers did not provide me
with warm clothes. At Zikim I was interrogated only once.65
The testimony of Husam Attar, a farmer and resident of Beit Lahiya, elaborates on the conditions of
detention at Zikim:
The next day, around 9, I was taken in a truck to a military facility, the Zikim military
camp, as I learned from the sign in Hebrew and Arabic there. When they took us off the
truck the soldiers began to push us, and then they took us to a gravel area and sat us
down. We spent one night there, our hands shackled behind our backs and our eyes
covered. At night it rained for about half an hour, but we were not brought blankets.66
The conditions prevailing in the military facilities were far from meeting the minimum standards for the
protection of the health and dignity of the detainees. The temporary nature of the facilities, set up ad-hoc, for the absorption of the hundreds detained during the operation, in no way justifies the degrading
conditions under which they were held. In the past the Israeli Supreme Court has addressed the
detention conditions of detainees in military camps set up temporarily in order to absorb them during
attacks and military operations. In the Sajadia case, former Chief Justice Shamgar ruled that the security
need to imprison many individuals simultaneously can explain the existence of extreme crowding at the
beginning of the wave of detentions.67 But in a later ruling former Chief Justice Barak ruled that even in
emergencies, detention facilities must be set up which meet the international criteria for minimum
detention conditions.68
C. Conditions of the Detainees in Interrogation and Detention Facilities
Humiliating physical conditions prevailed also in Israel Prison Service (IPS) detention centers to which
the detainees were transferred from the military facilities. The detainees were interrogated in these
detention centers by the GSS. During breaks between interrogations and after their conclusion, the
detainees were transferred to narrow cells used for solitary confinement. The detainees reported these
small cells as foul smelling, with thin mattresses, a general lack of hygiene, dark and rough walls and
weak, yellowish lighting 24 hours a day which interrupted and even prevented sleep.
Other detainees testified that at some point their conditions were greatly improved as they were moved
to spacious rooms and removed from solitary confinement. In retrospect they realized that this
improvement was intended only to encourage their giving confessions to collaborators, who were with
them in the new cells.
65From the affidavit of Moussa Wahadan, taken on April 1, 2009 in Shikme Prison.
66From the affidavit of Humas Attar, taken on February 23,2009.
67Sajadia case, see note 39 above, p. 823.
68See the comments of former Chief Justice Barak in the Hamoked case, note 38 above, p. 400. See also his
comments in the Yassin case, note 36 above, p. 415.
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The detainee Wael Atamneh told of his being held in a detention center, apparently Ketziot, in a small,
narrow cell about two meters wide. Over a period of three days he was forced to sleep on a metal bed
with no mattress or blanket to protect him from the cold. The mattress provided him later was torn and
uncovered. His cell did not contain a toilet; he was allowed access to the toilet only once a day. His first
shower was after ten days of detention, and only then was he allowed to take a walk in the courtyard.69
Imad Yussuf Hamad describes in his affidavit the rough conditions in his holding cell at Shikme Prison, to
which he was transferred on January 5, 2009 after being detained by the army. He says he was held in a
small isolation cell (1.3 1.7 meters) with dark walls and a bulb emitting weak, yellow light. The cell
contained a sink and toilet with no separation. The mattress provided to him was very thin, old and foul
smelling. Imad Hamad was held in solitary confinement for the bulk of his time in Shikme, and was
interrogated 18 hours a day by GSS interrogators during his first three days of detention there. Eight
days after arriving in Shikme, he was told that his interrogation was finished and he was transferred to
Ketziot, where his detention conditions improved greatly. In retrospect he realized that the
improvement was actually a method of interrogation, as collaborators had been placed in his new cell.70
N.A. was transferred several times between different prisons, apparently in an attempt to elicit a
confession from him through the use of collaborators. At a certain point, after being interrogated at
Zikim Military Camp, at the Sde Teiman Base and at Shikme Prison, he was transferred to Ketziot. Here is
his description of the isolation cell in which he was held at Shikme:
The isolation cell was 1.20 by 1.80 meters, the walls gray, two white lights shining 24
hours a day and leaving no possibility of knowing whether it is night or day. There was a
fan which pushed in a lot of dirt. There was a lot of dirt in my nose. There was a toiletwith no shower (a jora) and a small sink for washing the hands.
71
PCATI and Adalah heard identical descriptions from other detainees. They complained of sustained
solitary confinement, the complete cutting off from the outside world including from attorneys or family
members, the stench in the cells, thin and foul smelling mattresses, sleep deprivation, prevention of
washing and the failure to provide basic personal hygiene materials, prevention of a daily walk or even
removal from the cell, and the continuous dim lighting and more.72 The testimonies collected from the
detainees show that even the basic obligations were not met by the interrogation and security
authorities who held them, despite the fact that these requirements are anchored in the Prison
Ordinance (revised 1971). The legitimization of worsening detention conditions of those suspected of
security violations under regulation 22, can be seen as a undermining the basic rights and a de-facto
validation of using the worsening of detention conditions [as a sanction] in an arbitrary and illegal
manner.
69From the affidavit of Wael Atamneh, taken on April 27, 2009 in Ohalei Keidar Prison.
70From the affidavit of Imad Hamad, taken on April 1, 2009 in Shikme Prison.
71From the affidavit of N.A., taken on February 26, 2009 in Shikme Prison.
72Identical testimonies concerning the conditions of confinement, with minor differences, were given by: M.A.,
Moussa Muhammad Wahadan, Hammad Faraj Abed Rabbo, Hamad Adnan Rajeb Attar, S.C., A.C., and others.
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The detainees were held in these conditions while being subjected to long, exhausting and intensive
interrogations, which in some cases, included illegal methods, including those constituting torture.
These acts will be detailed in the following chapter, which shows how solitary confinement in and of
itself constituted an interrogation method intended to effect the resolve and spirit of the detainee, as
the interrogators became the only permitted contact with other human beings. The psychological
pressure placed upon the detainee, the weakening of his body, the lack of interaction with others, the
sensory deprivation caused by his inability to keep track of time and disconnection from the human and
social stimuli to which he is accustomed as a human being all of these infringe upon the detainees
right to humane treatment. 73
73On the psychological consequences of harsh physical conditions in detention on the detainee, see: Btselem and
HaMoked, Absolute Prohibtion: The Torture and Ill-Treatment of Palestinian Detainees 41 (May 2007)
www.btselem.org/Download/200705_Utterly_Forbidden_eng.doc; Physicians for Human Rights and A-Damir,
The Sounds of Silence: Isolation and Solitary Confinement of Palestinian Prisoners in Israeli Detention (October
2008)
http://www.phr.org.il/default.asp?PageID=119&ItemID=190.
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3. Torture and Ill-treatment of Detainees
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 5, The Universal Declaration of Human Rights.
Torture and cruel, inhuman or degrading treatment or punishment of any individual is absolutely
forbidden under international law and under Israeli law as well. According to international law, both IHL
and IHRL, the prohibition on torture and ill-treatment is absolute. This prohibition is anchored in a long
list of international human rights treaties and conventions, which Israel has ratified,74 and constitutes an
unconditional, obligatory provision of international law.75 The complete prohibition on torture, ill-
treatment, and cruel, inhuman or degrading treatment or punishment applies at all times: in times of
war as in times of peace.76 Torture and certain forms of ill-treatment may also constitute crimes against
humanity and war crimes in accordance with the Rome Statute.77
The complete prohibition on the use of torture and ill-treatment is cited in the Israeli Supreme Court
ruling in HCJ 5100/94 Public Committee against Torture in Israel v Government of Israel , although this
decision created an opening for the use of moderate physical interrogation methods in situations
described as ticking bombs.78 The prohibition on torture is not, however, anchored in Israeli
74The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (opened for
signature in 1984) (hereinafter: The Convention Against Torture); Articles 10-17 of the International Covenant onCivil and Political Rights (opened for signature in 1966); Article 5 of the Universal Declaration of Human Rights.
Torture also constitutes a grave breach of the laws of war. See for example Article 130 of the Third Geneva
Convention, note 17 above and Article 147 of the Fourth Geneva Convention, note 16 above.75
See for example the rulings of international and regional courts: Prosecutor v. Anto Furundzija, Case No. IT-95-
17/1-T, ICTY Trial Chamber II, judgment of 10 December 1998, paras. 146, 153-7; Prosecutor v. Zejnil Delalic et al.,
Case IT-96-21-T, ICTY Trial Camber II, Judgement of 16 November 1998, para. 454; Prosecutor v. Kunarac et al.,
ICTY Case No. IT-96-23 and IT-96-23/1, Trial Chamber II, Jud