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Periodic Report: June 2010
The TReATMenT of PALesTInIAn DeTAInees DuRIng oPeRATIon CAsT LeAD
This project was made possible by the support of the following funders: ICCO, Trócaire.
www.stoptorture.org.il • www.adalah.org
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 Baker Editing: 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 AtamleMahana, 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 & Trócaire
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
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
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 attention—including 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 Strip constitutes 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
The Israeli government did not declare Operation “Cast Lead” to be a war as required in clause 40( )אof Basic Law: the Government. Hence, the war action remained under clause 40( )בof 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 Israel’s 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 Israel’s 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.
3 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.
Report 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 key challenge 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 White Phosphorus in Gaza (March 2009); Human Rights Watch, White Flag Deaths: Killings of Palestinian Civilians during 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 and Sewage Sectors in the Gaza Strip (July 2009); Palestinian Centre for Human Rights, Through Women's Eyes: A PCHR 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); B’tselem: The Israeli Information Center for Human Rights in the Occupied Territories, Guidelines for Israel’s 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.
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 detainee’s 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 be dedicated 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.
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 individual’s family 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 detainee’s 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 detainee’s 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
This 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). 7 Standard 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 HaMoked’s 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
6 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 detainee’s 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 detainee’s 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 CMAG’s 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.
7 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 on January 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 state’s 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 attorney’s 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 state’s 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 state’s 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
HCJ 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 state’s response and the response of the petitioners to state’s response. The request was rejected on the basis of legal precedent and not on its own merits. To view these files, see HaMoked’s website and the Supreme Court website: th www.court.gov.il. See also: Article 51 of the 4 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.”
8 concerned with their well-being. According to the state’s argument, the detainee’s families are responsible for approaching the authorities to receive information about their loved ones, and not viceversa. 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
Amos 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
9 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 Adalah’s 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 B’tselem, 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 Israel’s 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 Adalah’s 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.
10 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 army’s instructions; as such it is clear that in most cases the resident’s 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 court’s 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 Court’s 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 son’s 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
HCJ 3799/02 Adalah, note 22 above, paragraph 24. For cases in which Palestinian civilians were used as human shields, see Adalah’s report at: http://www.adalah.org/newsletter/eng/jul09/Rana_Human_Shields_update_report_Englsih_july_2009.pdf.
11 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 four months 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 Police’s 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 Salah’s 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.
From the affidavit of Mr. Abed Elkarim Mustafa Abu Salah taken on April 28, 2009 in Ketziot Prison. Reported by Amin Salah to the Al Mezan Center for Human Rights in Gaza on September 5, 2009. 29 From the testimony of Sameer Attar, given to Adalah in a telephone conversation in July 2009.
12 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 their neighborhood, 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.”31 On April 8, 2009 Adalah demanded that the Attorney General open a criminal investigation in the case, which was transferred to the Military Police’s 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 military’s 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
From the affidavit of Mr. Rami Abed Rabbo taken on September 3, 2009 in Eshel Prison. From the affidavit of Mr. Raji Abed Rabbo, taken by the Public Committee Against Torture in Israel on February 23, 2009.
13 that Palestinians were indeed used as human shields, in contrast to the army’s denials published in the media.32 The state’s 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 state’s 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 detainee’s relative, attorney, the ICRC, the Public Defender’s 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 army’s actions.
See the Goldstone Report, note 4 above, Paragraphs 1106-1032 and 1925-1926. Despite the army’s 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-war1.264652. 33 The state’s 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.
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 many international 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.
From 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.
15 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
Body 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 Israel’s obligations toward those detainees held for interrogation purposes, and not only those being detained.
16 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 detainee’s 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
S. 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 Adalah’s 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).
17 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 court’s 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
Azazmi case, see note 48 above, p. 85. See the comments of former Chief Justice Barak on this subject in the HaMoked Case, note 38 above, p. 396. 51 See HCJ 2150/07 Abu Safiya v Minister of Defense (decision delivered December 29, 2009), paragraph 14 of Justice Fogelman’s ruling. The court’s official English synopsis may be viewed at its website: http://www.court.gov.il.
18 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 the house. 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
Supported, 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 B’tselem, 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.israelioccupation.org/2009-08-14/gazans-detained-in-giant-pit-during-cast-lead/ (hereinafter: Amira Hass).
19 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
From the affidavit of Hamad Attar, taken on January 14, 2009 in Ketziot Prison. See note 56. 58 From the affidavit of Khalil Mutzbah Attar, taken on January 14, 2009 in Ketziot Prison. 59 From 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.
20 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 the detention 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 Wahadan’s 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 painted white 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
See: Imprisonment Order for Unlawful Combatants (Place of Imprisonment, 2009 in Hebrew). From the affidavits of M.A., taken on February 23, 2009 and March 25, 2009 in Shikme Prison. 62 See 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.
21 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 adhoc, 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.
From the affidavit of Moussa Wahadan, taken on April 1, 2009 in Shikme Prison. From the affidavit of Humas Attar, taken on February 23,2009. 67 Sajadia case, see note 39 above, p. 823. 68 See 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.
22 The detainee Wa’el 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 toilet with 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.
From the affidavit of Wa’el Atamneh, taken on April 27, 2009 in Ohalei Keidar Prison. From the affidavit of Imad Hamad, taken on April 1, 2009 in Shikme Prison. 71 From the affidavit of N.A., taken on February 26, 2009 in Shikme Prison. 72 Identical 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.
23 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 detainee’s right to humane treatment. 73
On the psychological consequences of harsh physical conditions in detention on the detainee, see: B’tselem 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.
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, illtreatment, 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
The 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 on Civil 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-9517/1-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, Judgment of 22 February 2001, para. 466; Prosecutor v. Milan Simic, ICTY Case No. IT-95-9/2-S, Trial Chamber II, Sentencing Judgment of 17 October 2002, para. 34;, AlAdsani v. UK (Application no. 35763/97), ECtHR judgment of 21 November 2001, para. 61; Maritza Urrutia v. Guatemala, Inter-Am Ct. H. R. (Ser. C) No. 103, Judgment of 27 November 2003, para. 92; Caesar v. Trinidad and Tobago, Inter-Am. Ct. H.R. (Ser. C) No. 123, judgment of 11 March 2005, para. 70. 76 Article 2(2) of the Convention Against Torture, note 74 above. The article states that, “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” See also Article 4 of the International Covenant on Civil and Political Rights, note 74 above; see also the Geneva Conventions, for example Article 17 of the Third Geneva Convention, note 17 above and Article 17 of the Fourth Geneva Convention, note 16 above. 77 The Rome Statute is the treaty that established the International Criminal Court at the Hague. The treaty came into force on July 1, 2002. See also Articles 7 and 8 of the Rome Statute which define “crimes against humanity” and “war crimes”, respectively. 78 HCJ 5100/94 Public Committee against Torture in Israel v Government of Israel, Piskei Din 53(4) 817, 836 (1999) (in Hebrew). The official court translation can be accessed at: http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.pdf; HCJ 7195/08. For a critical analysis of the ruling, see Public Committee Against Torture in Israel, Accountability Denied: The Absence of Investigation and Punishment of Torture in Israel, Jerusalem, December 2009. See also: Ashraf Abu Rahme v Brigadier General
25 legislation. Because of the lack of a law explicitly and completely prohibiting torture, the ticking bomb window left open for torture in the Supreme Court’s ruling, and the fact that the GSS continues to torture without official sanction, Israel has been criticized by the UN Committee Against Torture.79 Indeed, the aggregation of data casts serious doubt on whether the absolute nature of the prohibition on torture is in fact realized in Israeli law.80 Throughout Operation “Cast Lead” and immediately thereafter, PCATI and Adalah documented several cases in which torture and ill-treatment were used on Palestinians from the Gaza Strip detained by Israel. The documentation includes affidavits and testimonies of twenty-two detainees from Gaza in Israeli detention centers. Eleven of the twenty-two detainees were criminally indicted, while ten were held without charge as “unlawful combatants”. This chapter is comprised of three sections, which follow chronologically the stages of detention. The first section surveys the torture and ill-treatment of detainees carried out by Israeli soldiers during the military action in the Gaza Strip. The second section presents cases which occurred during field interrogations carried out by both the GSS and soldiers. These interrogations occurred in military facilities, apparently before the detainees were officially absorbed by the IPS. The third section examines cases which occurred during the interrogation of the detainees by the GSS, after their transfer to official detention centers in Israel. PCATI’s experience over the years shows that from the moment detainees are deprived of their liberty until the end of their interrogation, they are exposed to acts which constitute torture and ill-treatment; PCATI has vast amounts of documentation of harsh physical violence used against detainees. This violence consists of punches, blows, kicks and slaps; shackling, including in painful positions, while being held in the interrogation room;81 verbal ill-treatment which includes threats to the life, health and welfare of the interrogee and threats of injuring his or her family members;82 and curses and swearing towards the detainee, his family and his religion, and more. PCATI has further documented physical and psychological violence, including sleep deprivation for long periods, loud yelling in the ear, interrogators spitting in the face of detainees, withholding of sufficient food and water, and prevention of access to the toilet during very long interrogations. It is emphasized that the torture and ill-treatment, especially
Avichai Mandelblit, Chief Military Advocate General, Tak-El 2009(3) 357 (2009), para. 42 of Justice Procaccia’s ruling (in Hebrew). 79 The UN Committee Against Torture has condemned the torture and ill-treatment in GSS interrogations since the mid-1990s. It did so once again in its most recent concluding observations on Israel: UN Doc. CAT/C/ISR/CO/4, 14 May 2009, para. 13 (hereinafter: Report of the Committee Against Torture). 80 See contempt of court petition regarding HCJ 5100/94, Public Committee Against Torture in Israel v Prime Minister of Israel, Mr. Ehud Olmert. The petition was filed by PCATI, ACRI and HaMoked on January 2, 2008 on the grounds that the respondents are responsible for the policy of providing prior approval for the use of torture, in grave violation of the HCJ ruling. The court rejected the contempt petition on July 6, 2009. 81 See PCATI’s petition, HCJ 5553/09 PCATI v Prime Minister of Israel et al, demanding an end to the policy of shackling detainees during GSS interrogations. The goal of this policy is to cause the interrogee pain and suffering, to break his spirit and to force him to make a confession. See also, PCATI, Shackling as Torture and Ill-Treatment (June 2009). The report and the petition can be viewed on PCATI’s website: http://www.stoptorture.org.il/en. 82 See: PCATI, Family Matters – Using Family Members to Pressure Detainees Under GSS Interrogation (March 2008). The report can be viewed at PCATI’s website.
26 during the third stage in which the detainee is interrogated by the GSS and under its custody and the detainees’ holding conditions are part of the same process. The conditions of confinement of GSS interrogees are not under any external monitoring, not even by the Public Defender, who is allowed to visit any prison facility except for the GSS interrogation cells. The pretext for this prohibition is that such inspections could damage the GSS’s work. Therefore only lawyers from the State Attorney’s Office and the Justice Ministry’s Department for Counsel and Legislation are allowed to check these conditions, and even then only without reporting on them to the public.83
A. Soldier Violence against Detainees in the Gaza Strip Israel blatantly violated the prohibition on holding detainees adjacent to the war zone, and did not uphold its obligation to transfer them as soon as possible away from the area of the fighting, as detailed in earlier chapters.84 Tens of detainees were held in large pits for several days and some were used as human shields. Yet these acts are not the full extent of the series of violations of international and Israeli laws and norms. In several cases, soldiers engaged in harsh physical violence and revolting degradation towards Palestinian detainees. A.C. describes what followed the army’s invasion of his house, during which they destroyed everything in it, and after he was held for several hours by army forces inside of it: “The next day, after having slept shackled on the second floor of our home, I heard the voices of my father and brothers M. and S. screaming from the blows they were taking from the soldiers. I started to yell that I want to meet my mother. Then one of the soldiers took off his helmet and hit me on the head with it. I lost consciousness. I woke up later in the bathroom, with three soldiers. One of the soldiers took out his sexual organ and began to urinate on me while I was lying on the floor; meanwhile the two other soldiers laughed. I was completely soaked and there was a repulsive smell of urine. When the soldier who had urinated on me realized that I had woken up, he began to kick my upper body on the left side”.85
On this issue see the correspondence of ACRI, in the name of ACRI, PCATI and PHR-Israel, with the State Attorney’s Office beginning on October 28, 2009. The organizations demanded that representatives of the Public Defender’s Office be permitted to visit the holding conditions in GSS facilities. Adv. Shai Nitzan, the Deputy State Attorney for Special Tasks, answered by supporting the current agreement in a letter dated January 21, 2010. Importantly, Israel has refused to sign the Optional Protocol to the UN Convention Against Torture, see note 74 above, which explicitly requires external and independent supervision over interrogation facilities. 84 Articles 49 and 76 of the Fourth Geneva Convention, note 6 above. Note that these articles also require that the occupying power hold residents of the occupied territory in detention within the occupied territory, and prohibits the occupying power from transferring them into its own territory. See also articles 19 and 23 of the Third Geneva Convention, note 17 above. This policy, which is in violation of the principles of international law, received legal authorization in Israel by the Supreme Court, see Sajadia case, note 39 above. The court recently rejected a petition filed by Yesh Din, ACRI and HaMoked, which demanded that the authorities cancel this policy and enforce the prohibition anchored in international law. See HCJ 2690/09 Yesh Din v Commander of IDF Forces in the West Bank (decision delivered March 17, 2010). 85 From the affidavit of A.C., taken on February 26, 2009 in Shikme Prison.
27 Husam Attar, a 23 year-old farmer from Beit Lahiya, describes what happened to him after soldiers entered the house he was in on January 3, 2009: “I was detained on January 3, 2009, the first day of the ground operation of the Israeli army, and I was arrested at 3 o’clock in the morning from my brother-in-law’s house. The army knocked on the door of house where I was with 15 other people, all family members, and burst in. Then they removed us from the house and ordered the men to go right and the women to go left, where we waited about half an hour until the army ordered the women and children and my brother-in-law to return home. We remained there, a group of some ten people. The soldiers covered our eyes with a white cloth and shackled us with plastic handcuffs behind our backs. We walked for some time from place to place which I was unable to recognize because my eyes were covered. During the walk I was struck by the soldiers and I heard them saying, ‘son of a bitch’, ‘asshole’ and other curses.”86 On April 21, 2009 PCATI petitioned the CMAG in the name of Husam Attar demanding the opening of a criminal investigation against the commanders and soldiers responsible for the acts described in his affidavit. On June 22, 2009, the Operations Division of the State Attorney’s Office informed PCATI that the case was under investigation. PCATI received a letter on October 12, 2009 asking for help in answering several questions about the investigation, answers to which were provided over the phone. To date the conclusions of the investigation have yet to be announced. Some of the detainees told of being transferred from the Gaza Strip to the border area or into Israeli territory in tanks. During their time of being held in the tank, some of them were harshly physically assaulted. Here are excerpts from the affidavit of S.C.: “After some time a tank arrived and took us away. I was shackled behind my back and my eyes were covered. Throughout the drive in the tank—I don’t know how many soldiers were in it—we were punched and kicked. I prayed to god to arrive anywhere, even to die, and just to stop this terrible suffering.” 87 The testimony of Raji Abed Rabbo, a 22 year-old resident of the Izzbat Abed Rabbo neighborhood, on his being held in a tank follows: “OnJanuary 7, 2009 in the early hours of the morning, we were transferred to a force which was positioned next to the tanks located on Izzbat Abed Rabbo Street. We walked in the direction of the tanks while the soldiers aimed their weapons at us. We were loaded onto the tank, myself and Kh. and R., in which there were four soldiers. The soldiers ordered us to look at the floor. Every time we raised our heads the soldiers
From the affidavit of Husam Attar, taken on February 23, 2009 in Shikme Prison. From the affidavit of S.C., taken on February 26, 2009 in Shikme Prison.
28 would yell at us and put their guns to our heads. I cannot tell how long the ride in the tank lasted.”88 On June 18, 2009 PCATI petitioned the CMAG in the name of Mr. Raji Abed Rabbo, demanding the opening of a criminal investigation against the commanders and soldiers responsible for these acts. On June 22, 2009 the Operations Division of the State Attorney’s Office informed PCATI that the complaint was under investigation. On October 12, 2009 a letter was received asking for PCATI’s help in answering several questions about the investigation, which were provided over the phone. To date, the conclusions of the investigation have not been announced. In addition to the cases described above, PCATI, ACRI and HaMoked, in the name of several other human rights organizations, submitted a complaint to the CMAG on January 28, 2009, demanding that he order an independent investigation into the holding conditions of the detainees from Gaza. In this letter the testimonies of five Palestinians were cited. To date, more than one and a half years since the complaint was filed, no answer has been received from the CMAG. PCATI also filed a complaint with the CMAG on January 19, 2009, on behalf of Muhammad Kisab, demanding the opening of a criminal investigation against the commanders and soldiers on suspicion of harsh violence perpetrated against him during his detention. On February 22, 2009, the Operations Division of the State Attorney’s Office confirmed receiving the complaint. On February 14, 2010, after numerous reminders, PCATI was notified that the case was in the “advanced stages of treatment.”
B. Ill-Treatment and Torture during “Field Interrogations” Field interrogations occurred primarily at military bases in Israeli territory, adjacent to the Gaza border. The detainees were held at these bases for a short period of time, no more than a few days. At this stage, they had apparently not yet been registered or absorbed in the IPS registry. As will be clarified in the following section, despite the significant difficulties in determining which body carried out the field interrogations, the documentation suggests that they were apparently carried out by Israeli Military Intelligence interrogators and by GSS interrogators. GSS interrogators were present at some of the interrogations even if they themselves did not conduct them. At this stage, dozens of detainees were interrogated before the authorities decided whether or not to release them or to absorb them in the Israeli prison system.89 These interrogees were not able to
From the affidavit of Raji Abed Rabbo, taken on February 23, 2009 in Shikme Prison. This assumption is based upon media reports according to which, despite the Israeli military’s preparations to detain thousands of Palestinians, in fact about 200 individuals were detained, the vast majority of whom were released after an initial interrogation in the field. See Amos Harel, “Which IDF unit captured more prisoners in Gaza and why?” March 3, 2009. The article can be viewed here: http://www.haaretz.com/printedition/news/which-idf-unit-captured-more-prisoners-in-gaza-and-why-1.271285. See also Hanan Greenberg, “IDF arrested tens of suspects in Gaza and transferred them to Israel,” YNET, January 5, 2009. The article can be viewed here: http://www.ynet.co.il/articles/1,7340,L-3650892,00.html. Amira Hass, in her article from August 14. 2009 (see note 55 above), reports that throughout “Cast Lead” 40 detainees from the Gaza Strip were brought to GSS
29 identify their interrogators, as the latter did not wear nametags and did not identify themselves by name or by official position. In addition the detainees were generally blindfolded with flannel swatches. The assumption that GSS interrogators were present at these interrogations is based on the testimonies of those detainees who were able to see – either for a time when the blindfold was removed or in a partial manner through the blindfold when it did not completely block their field of vision – those present at the interrogation, and then saw them once again during their interrogation by the GSS at Shikme Prison. Husam Attar describes his holding in a military facility: “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. The next day they began to take us to be interrogated. I was taken to a trailer with two interrogators behind a desk and soldiers around them. One of the soldiers said his name was “Mukhtar” and that he was there to beat me. At the beginning they interrogated me while I was still standing, and afterwards they ordered me to squat on my knees and look at the floor. Throughout the interrogation they asked if I knew where the abducted soldier Gilad Shalit was. After about an hour and a half they took me outside. “Mukhtar” and five soldiers began to spit on me, kick me, slap me and punch me all over my body, mostly in my upper body. Afterwards they put me in a small pit and threatened to shoot me and said, “we want your mother to suffer because of you.’”90 PCATI filed a complaint with the Military Advocate General on behalf of Mr. Attar. To date, no substantive answer has been received. M.A. describes his field interrogation: “During my interrogation the interrogators threatened that I would remain with them for the rest of my life if I didn’t cooperate. After 48 hours of interrogation they took me outside and seated me on the gravel outside the caravan for an hour. The interrogator said, ‘Stay here, so the missiles and rockets will fall on you.’”91
interrogation facilities. Hen Kots-Bar states in his article “Here are the captives,” that 250 individuals were captured until the date of publication, and that 15% of them were “involved” (in terror activities), Ma’ariv, January 16, 2009 (in Hebrew). This information also fits the CMAG’s answer of January 19, 2009 according to which, after questioning by security forces, detainees for which no concrete information linked them to activity in the fighting or in terror activity were released. 90 Affidavit of Husam Attar, taken on February 23, 2009 in Shikme Prison. 91 Affidavit of M.A., taken on February 23, 2009 in Shikme Prison.
30 It seems that in the first stages – the initial detention by soldiers and the field interrogation – soldiers used dogs to scare and terrorize the detainees. Wa’el Atamneh, a 33 year-old father of six living in Beit Hanoun, describes this feeling of terror and helplessness when he was surrounded by dogs: “After some hours of driving, I was taken off in a place I do not know. There were many dogs there and they surrounded me. I was sure they were about to eat me at any moment.”92
C. Torture and Ill-Treatment During GSS Interrogations The documentation collected by Adalah and PCATI suggests that the GSS interrogations of detainees included methods constituting ill-treatment, some of which reached the level of torture. The interrogators sometimes humiliated the detainees. For example, an interrogator ordered S.A. to bark like a dog and to make sheep noises while he was being attacked physically. According to S.A.’s testimony: “Throughout the interrogation the interrogator ‘Yuri’ yelled in my ear and would force me to make dog and sheep noises and spat on me. Yuri would also hit me on my face, below the chin.”93 GSS interrogators also used other methods intended to break the spirit of the interrogees. One of these was sleep deprivation for long periods, sometimes as long as five days. Imad Hamad is a 35 year-old resident of Beit Hanoun, married with four children. He worked as a policeman in the Palestinian Police. He testified to having been threatened with injury by his interrogators, who also yelled in his ear, but complained mostly of the sleep deprivation for long periods when he was shackled to the interrogation chair: “I was interrogated over a period of eight days. During the first five my interrogators prevented me from sleeping. The interrogation continued day and night, as the interrogators would take turns. Only on two occasions, the first being 18 hours after the beginning of the interrogation, was I allowed to go to my cell to eat and rest for an hour and a half. Throughout the interrogation period I was seated on a chair bolted to the floor, my hands tied behind my back and to the chair and my legs tied to the chair. My handcuffs were removed by the interrogators only during meals. As a result of this extended sitting while tied up, I suffered from severe pains all over my body, especially in the lower back. The interrogators threatened to leave me tied to the chair until I get hemorrhoids.”94 P.B.’s interrogators also deprived him of sleep for several nights. His testimony states:
Affidavit of Wa’el Atamneh, taken on April 27, 2009 in Ohalei Keidar Prison. From the affidavit of S.A., taken on February 16, 2009 in Shikme Prison. 94 From the affidavit of Imad Hamad, taken on February 16, 2009 in Shikme Prison.
31 “The interrogation lasted three days straight, during which the interrogators prevented me from sleeping. The interrogators would take turns between them and prevent me from sleeping. Throughout the interrogation the interrogators held me tied to the chair. Every day they would send me to solitary confinement to eat my meals, three a day, though I didn’t eat because the food was so bad and I used the time to sleep, despite the fact that they would leave me there for only a few minutes before returning me to the interrogation.”95 In conclusion, the documentation gathered by PCATI and Adalah points to grave violations by army forces and GSS interrogators of the absolute prohibition on torture and ill-treatment in both Israeli and international law with regards to Palestinians deprived of their liberty during Operation “Cast Lead” at the time of their detention, during their transfer to military facilities, and in initial interrogations and GSS interrogations. Further, the Goldstone Report concluded that the Israeli military and the GSS used torture against Palestinians in their custody. In the words of the UN Fact-Finding Mission: “Furthermore, on the basis of this information, the Mission considers that the severe beatings, constant humiliating and degrading treatment and detention in foul conditions allegedly suffered by individuals in the Gaza Strip under the control of the Israelis and in detention in Israel, would constitute torture, and a grave breach under article 147 of the Fourth Geneva Convention and a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Such violations also constitute war crimes.”96 As stated, Israel's published response to the Goldstone Report claims that several investigations were opened following the submission of complaints, but the details of such investigations and their conclusions have not been released.
From the affidavit of P.B., taken on February 23, 2009 in Shikme Prison. Goldstone Report, see note 4 above, para. 1175.
4. Unlawful Combatants
“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Article 10 of the Universal Declaration of Human Rights (1948). According to media reports, during operation ‘Cast Lead’, 40 detainees from Gaza were brought to Israel Prison Service (IPS) facilities.97 The IPS and the GSS authorities designated these detainees into two categories: “security” detainees and “unlawful combatants. The security detainees were brought to the Magistrate Court for extension of detention hearings. At a later stage, indictments were filed against them, and their detentions were extended until the end of the legal proceedings. According to information gathered by PCATI and Adalah, most of the detainees were sentenced to 12 to 84 months of actual prison time. Two of the detainees have been released and sent back to the Gaza Strip after serving out their sentences. The detainees designated as “unlawful combatants” were held under the Incarceration of Unlawful Combatants Law, 2002, and they were released some time ago. Statistics provided by the IPS to Adalah show that at the end of December 2008, there were five prisoners defined as “unlawful combatants” in Israeli prisons. By the end of the military operation in January 2009, their number had reached 19, and by the end of February, there were 22.98 Adalah and PCATI do not have sufficient information to specify the interaction between the two tracks, the regular criminal law track and that of the unlawful combatants track, under which detainees from Gaza were held during “Cast Lead”. While quite a few detainees from Gaza held today as unlawful combatants were moved to this track after serving out prison sentences imposed on them in the regular criminal track,99 the suspicion arises that the purpose of the “unlawful combatants” designation is actually to hold the detainees as bargaining chips. This suspicion is supported by the original purpose of the law, which was to enable Israel to continue holding Lebanese citizens, especially Mustafa Dirani and ‘Abd al-Karim ‘Obeid, as bargaining chips in a future prisoner exchange deal.100 And indeed, orders published based on the authority of this new law were issued against Dirani and ‘Obeid on 16 June 2002, and they remained imprisoned until being released in a prisoner exchange deal on January 30, 2004. Later, Lebanese individuals captured during the Second Lebanon War were imprisoned under the Unlawful Combatants Law, until being released in a prisoner swap on July 16, 2006. Since the passage of the law, there have been 54 known cases of detentions under its authority, of them 15 Lebanese and 39
See Amira Hass’ article, note 55 above. See Adalah “New Data on Arabs Incarcerated in Israeli Prisons,” Adalah’s Newsletter, Vol. 62, July 2009. The report can be found at Adalah’s website: http://www.adalah.org/newsletter/eng/jul09/New_Prisoner_Data_july_2009.pdf 99 PCATI was informed of at least nine such detainees from Gaza, who remained in prison under the Unlawful Combatants Law after having served out their sentences received according to the criminal legal procedures. See also: 10-03-40211 TLP (Jerusalem) State of Israel v Tariq Issa Issui, decision delivered on April 21, 2010. 100 Crim FH 7048/97 Anonymous v Minister of Defense, Piskei Din 54(1) 741 (in Hebrew).
33 Palestinians from the Gaza Strip.101 On June 11, 2008 the Supreme Court102 ruled that the Incarceration of Unlawful Combatants Law is constitutional. Some two months later the Knesset amended the law, adding numerous articles most of which dealt with creating special military courts to try prisoners declared as unlawful combatants.103 A review of the recent amendments leaves little doubt that the state intends to widen the use of this law and to institutionalize the method of imprisoning “unlawful combatants” accordingly. Who is an “unlawful combatant”? Such an individual is defined in the law as “a person who has participated either directly or indirectly in hostilities against the State of Israel or is a member of a force perpetrating hostilities against the State of Israel, where the conditions prescribed in Article 4 of the Third Geneva Convention of 12th August 1949 with respect to prisoners-of-war and granting prisonerof-war status in international humanitarian law, do not apply to him.”104 Customary international law defines who is a combatant, and determines that whoever is not a combatant is a civilian. There is no category of “unlawful combatant”.105 Under IHL, an individual must fulfill several conditions in order to be included in the category of “combatant”. Civilians, on the other hand, are defined negatively, that is, anyone who is not a combatant according to the definition in the conventions,106 or more generally, “persons taking no active part in the hostilities”.107 Hence there exist “civilians” and “combatants”. According to IHL, it is possible to try and punish anyone who has violated the laws of war, whether combatant or civilian. Hence, the real purpose of enacting the “Unlawful Combatants Law” is to create a category of people denied all rights, who may be attacked in time of war or military operation because of their being “combatants”, but who if captured are not entitled to the
B’tselem and Hamoked, “Without Trial: Administrative Detention of Palestinians by Israel and the Internment of Unlawful Combatants Law,” (October 2009). 102 CrimApp 6659/06 Anonymous v State of Israel, Piskei Din 54(1) 721 (2008) (in Hebrew). The ruling can be viewed at the website of the Israeli Supreme Court: www.court.gov.il. 103 Incarceration of Unlawful Combatants Law 5762—2002(Amended and Temporary Order), Book of Laws 2008, 2178 (in Hebrew). A translation of the law can be found at the Justice Ministry’s website: http://www.justice.gov.il/MOJHeb/HeskeminVeKishreiHutz/KishreiChutz/HukimEnglish/. 104 Article 2 of the Unlawful Combatants Law; Article 4 of the Third Geneva Convention describes the conditions for receiving prisoner-of-war status: a. the organization must function hierarchically, with one head commander responsible for all inferiors; b. the members of the organization must wear a fixed symbol which can be seen from afar; c. the members of the organization must carry their weapons openly; and d. the combatants must conduct their actions in accordance with the laws of war and according to its customs. See also Article 43 of the Protocol I Additional to the Geneva Conventions (1977). 105 HCJ 769/02 PCATI v Government of Israel, Tak-El 2006(4) 3958 (in Hebrew), in paragraph 26 of the ruling of former Chief Justice Barak. On the definition of a combatant, see: Article 1 of the Protocol I Additional to the Geneva Conventions and Article 13 of the First and Second Geneva Conventions, Article 4 in the Third Geneva Convention. 106 Article 51 of the Protocol I Additional to the Geneva Conventions (1977). Legal scholars view this article as customary international law. 107 See for example Article 3(1) common to all four Geneva Conventions. This article refers to armed conflict “not of an international character”, but it is accepted that its customary application is wider.
34 rights and protections to which combatants are entitled. The Supreme Court rejected the existence of a third category,108 but in upholding the law the court for all practical purposes approved the category. Designating an individual as an “unlawful combatant” carries serious consequences for his most basic rights. Firstly, Israeli law requires that a detainee be brought before a judge within 24 hours of being detained, and not later than 96 hours in the case of “security” detainees.109 However, for an “unlawful combatant”, it is permitted to delay the judicial review of detention for up to 14 days from the date the imprisonment order was taken out.110 Secondly, like any “security” detainee, an unlawful combatant can be prevented from meeting with an attorney for up to 21 days from the date of his arrest. Yet in contrast to the “security” detainees, where the justification for such a long prohibition on meeting with a lawyer is that it will prevent damage or disruption of the interrogation, the “unlawful combatant” will not be subjected to interrogation. Thirdly, for an “unlawful combatant”, the detention order is not limited in time, such that at least in theory, he can be detained indefinitely. Not less grave are the legal presumptions fixed in Articles 7 and 8 of the “Unlawful Combatants Law”, which state that the release of an individual detained under this law will endanger state security so long as hostile acts by his force against the State of Israel have not ceased. This presumption is true unless proven otherwise, and the Minister of Defense’s recommendation, in a signed certificate, that a certain force carries out hostile acts against the State of Israel, or that such acts by this group have ceased or have yet to cease, will be seen as proof in any legal proceeding unless proven otherwise. These presumptions are fatal to the detainees’ right to a fair trial and to their presumption of innocence. Further infringement on the rights, common to all detainees defined as “security detainees” and to “unlawful combatants” include, for example, the deviation from normal evidentiary rules and the courts’ willingness to rely on secret evidence, which the detainee and his attorney are unable to examine, refute or contradict, and which can serve as the basis for his remaining in detention.111 The holding conditions of “unlawful combatants” are set by the Imprisonment Regulations for Unlawful Combatants (Conditions of Incarceration), 2002 (hereinafter: the Regulations).112 According to the Regulations, “unlawful combatants” will be held separately from other prisoners and detainees waiting for trial.113 The prison authorities are authorized to hold these detainees in solitary confinement;114 The Minister of Defense may even forbid visits from representatives of the International Committee of the
HCJ 769/02, note 106 above, paragraph 28 to former Chief Justice Barak’s ruling (2006). See Article 3 of Penal Code (Detainee Suspected of Security Violations)(Emergency Order), 2006. Book of Laws 2059. The order expires on December 29, 2010. 110 There may be situations in which the imprisonment order is issued later than the notification of detention. During “Cast Lead” the authority of judicial review was passed on to the Beer Sheva Regional Court, which sits in Ketziot Prison. 111 See Article 5(e) of the Incarceration of Unlawful Combatants Law. 112 Regulations of Imprisonment of Unlawful Combatants (Conditions of Incarceration), 2002, 6161 .ק''ת 113 Regulation 2 of Imprisonment of Unlawful Combatants (Conditions of Incarceration). 114 Regulation 3(a) of Imprisonment of Unlawful Combatants (Conditions of Incarceration).
35 Red Cross for up to three months from the date of imprisonment, if convinced that such visits will endanger state security.115 According to information gathered by PCATI and Adalah, the detainees from Operation Cast Lead designated as unlawful combatants were held at the “Sde Teiman” military base near Beer Sheva. For this purpose, Minister of Defense Ehud Barak issued an order on January 1, 2009 arranging for their imprisonment there under Article 3(a) of the Unlawful Combatants Law. After a short time, these detainees were transferred to Ketziot Prison. At Ketziot the “unlawful combatants” were held in harsh conditions. They were held in small cells, with no electricity and no windows, and they spent most of the day and night in total darkness. Hamad Attar, 26, from Beit Lahiya, is unmarried and works for an organization for the disabled: “In the cell at Ketziot I am being held together with Sameer Attar and A.S. We are held in a small cell. The sun does not come into it such that the cell is dark most hours of the day, especially because is not connected to electricity and there is no lighting. Two days ago we were taken out for an hour to the yard and yesterday for only half an hour in the afternoon to shower. In the cell there is no toilet, and we must call the guards several times before they bother to come and accompany us to the toilet. The food served is insufficient.”116 Khalil Attar, a 56 year-old farmer and father of eight, also testifies: “In the cell there is no toilet and we must call the guards several times until they even come and take us to the toilet.”117 Wa’el Atamneh summarizes the incarceration conditions as an unlawful combatant at the beginning of his detention as such: “After 30 days of suffering we were transferred to the regular wings where sentenced detainees are held.”118 This short sentence from Mr. Atamneh’s testimony highlights the difficult conditions in which the “unlawful combatants” were held, as well as the prison authorities’ violation of the Unlawful Combatants Law by holding the detainees with sentenced prisoners. Another case illustrates how GSS interrogators threatened to classify an interrogee as an “unlawful combatant” if he did not confess to the acts of which they suspected him. Thus testifies Hamdan Alsufi, father of ten and a university professor, resident of the Tel-Alhua neighborhood in Gaza, who was arrested on January 15, 2009 and defined as an “unlawful combatant” at the end of February:
Regulation 12(b) of Imprisonment of Unlawful Combatants (Conditions of Incarceration). From the affidavit of Hamad Attar, taken on January 14, 2009 in Ketziot Prison. 117 From the affidavit of Khalil Attar, taken on January 14, 2009 in Ketziot Prison. 118 From the affidavit of Wa’el Atamneh, taken on January 14, 2009 in Ketziot Prison.
36 “A week later they took me back to the interrogation room, where the interrogators told me that if I don’t confess they would apply the Unlawful Combatants Law to me. They told me, especially the interrogator ‘Abu Rabiya’, that if I don’t confess they will turn me into an unlawful combatant. This was the first time I had heard of this thing called ‘unlawful combatant’. I didn’t quite understand what the interrogator ‘Abu Rabiya’ meant when he said that if I don’t confess he will declare me an ‘unlawful combatant’. And when I asked him what he meant, he told me threateningly that they can imprison me without need for a trial, and that they can extend my detention whenever they want.”119 Furthermore, the detainees were not advised of their rights according to the law and the Regulations.120 They were also not allowed to read or to copy the Regulations in the language they most easily understand as required by the Regulations. Moreover, sometimes the detainee was informed of his being held as an “unlawful combatant” only at the time of his meeting with an attorney. Hamad Attar testifies: “Today the guards gave us this document. I did not know what is written in the document and no one explained to me what is written in it. From what you are telling me now I understand that it is a detention order from January 11, 2009 signed by Major General (Reserves) Yiftah Ron-Tal according to the Incarceration of Unlawful Combatants Law.”121 Khalil Attar also did not know that he was classified as an “unlawful combatant until meeting an attorney: “Yesterday Ofer gave me the form that I am showing to you now, and from what you are reading to me I understand that it is a detention order.”122
The UN Committee Against Torture criticized Israel for the use of a law defining an “unlawful combatant” and called on the state to re-evaluate this legislation and the policy and procedures derived under it.123 The Goldstone Report also addressed the issue, stating that:124 “All of the persons held were civilians and protected persons under Article 4 of the Fourth Geneva Convention. The Mission does not accept the proposition that the men were detained as or considered to be unlawful combatants and therefore beyond the
From the affidavit of Hamdam Alsufi, taken on January 17, 2009 in Ketziot Prison. Regulation 21 of the Regulations of Imprisonment of Unlawful Combatants (Conditions of Incarceration). 121 From the affidavit of Hamad Attar, taken on January 14, 2009 in Ketziot Prison. 122 From the affidavit of Khalil Attar, taken on January 14, 2009 in Ketziot Prison. 123 The Concluding Observations of the Committee Against Torture, note 80 above, paragraph 17. 124 The Goldstone Report, note 12 above, paragraphs 1452-1455. See also paragraphs 59-60, 68, 1111, 1122, 1168, 1506 and 1927 of the Report.
37 protection of the Fourth Geneva Convention. An individual loses the status of protected person only if that person is ‘definitely suspected of or engaged in activities hostile to the security of the State’ (art. 5). The Mission has not heard any information suggesting this to be the case. Even if a person is no longer entitled to the status of protected person, Article 5 provides that such persons must ‘be treated with humanity’ and ‘shall not be deprived of the rights of fair and regular trial.’ Furthermore, under Additional Protocol I, Article 75, they shall enjoy ‘as a minimum’ the protections provided by that article.125 In conclusion, the “unlawful combatant” law treats a detainee as if he lacks any status at all. It allows the State of Israel to renounce its obligations under international humanitarian law, which absolutely rejects the existence of such a category. Further, the law contradicts international human rights conventions, which provide that individuals must be provided with a fair trial and humane conditions of imprisonment.126
The Goldstone Report, see note 12 above, paragraph 1168. Article 1 of the International Convention Against the Taking of Hostages (1979). Article 14 of the International Covenant on Civil and Political Rights, note 78 above.
5. The Duty to investigate Complaints
The previous chapters of this report detailed the primary violations of international law and Israeli law, violations carried out by the army, the GSS and other Israeli authorities during and after Operation “Cast Lead”. The violations concerned: A. The sustained delay in relaying notification of detention and place of detention of persons to the relevant bodies, and the use of Palestinian civilians as human shields; B. The degrading physical conditions of incarceration under which the detainees were held from the moment of their detention until their interrogation by the GSS; C. The torture and ill- treatment of detainees by the soldiers and GSS interrogators; and D. The labeling and categorization of detainees as “unlawful combatants” and the rights violations these detainees face. This chapter will address the duty to investigate on two levels. Firstly this chapter will examine the obligation to carry out a comprehensive, independent, effective and impartial investigation into the treatment of Palestinian detainees from the moment they were detained in the Gaza Strip until the conclusion of their interrogation by the GSS. This investigation should include the cases detailed in this report, even if no complaint was filed. Secondly, this chapter will discuss the obligation to carry out an independent, effective and impartial investigation of the specific complaints filed by both individuals and organizations.
A. Comprehensive Investigation of the Treatment of Prisoners and their Conditions of Detention As detailed in this report, one of the subjects demanding an intensive investigation, within the context of a comprehensive general investigation about Operation “Cast Lead”, is that of the treatment of Palestinian detainees. The treatment of detainees as described in the previous chapters paints a grim picture of ill-treatment, and quite a few cases of torture, of the detainees in all stages of their detention; the harsh and inhuman conditions of incarceration under which the detainees were held; and the disregarding of the detainee’s status and basic rights, among them the right to a fair trial. The issue of the treatment of detainees was not at the center of public and media attention, during a military operation which brought death and destruction on a vast scale. Brutal pictures from Gaza were published worldwide, yet pictures of the detainees were absent from the media outlets.127 Even after the conclusion of the operation, the story of the detainees did not appear on the public agenda. Hence the great importance of a general and comprehensive investigation which will address the treatment of Palestinians deprived of their liberty during Operation “Cast Lead”. Israel's obligation to investigate is based on both International humanitarian law and on international human rights law, in addition to Israeli law. The duties to investigate and prosecute are the minimum
See: PCATI, No Second Thoughts: Changes in the IDF's Combat Doctrine In Light Of 'Operation Cast Lead' (November 2009).
39 requirements without which human rights, anchored in morality and law, become no more than words on paper. Article 1 common to all four Geneva Conventions of 1949 obligates all parties to the Convention to respect and to ensure respect to the Convention in all circumstances. This article is the source of the duty to investigate cases in which it is suspected that the Conventions were not respected in practice, because an investigation is the complementary aspect of the obligation to ensure in advance respect for international law. The State of Israel is a party to the Geneva Conventions and thus these obligations are incumbent upon Israel. The duty to investigate is also anchored in Article 146 of the Fourth Geneva Convention, which determines that the obligation to search for and to put on trial people suspected of grave violations of the Convention applies to every party to the Convention,128 as well as in the International Covenant on Civil and Political Rights (ICCPR) and the general comments issued by the Human Rights Committee, which monitors the ICCPR. According to this treaty, investigations must be independent, effective, prompt and intensive and must be carried out by an authorized authority.129 Israeli law also obliges law enforcement authorities, first and foremost the Attorney General, to order an exhaustive, independent and effective investigation regarding suspicions of violations of the law by the heads of the state and the army and those serving them. This duty follows from the principle of the rule of law, according to which state bodies must operate according to law. The Supreme Court emphasized the duty to open and initiate investigations as well as the duty to do so also in the absence of specific complaints.130 The duty to investigate is to be upheld in times of war. Correspondingly there is a duty to conduct the investigation in a thorough and independent manner.131
See the correspondence between ACRI and Attorney General Mazuz from: January 20, 2008, February 24, 2009, March 18, 2009 and September 10, 2009. See also Article 129 of the Third Geneva Convention. In addition to the petitions of human rights groups, several cases were also initiated by Israeli professors of law, who demanded the creation of an independent investigation regarding the suspicions of violations of the laws of war during Operation “Cast Lead”. Among these were the petition of Professors Eyal Benvenisti, Claude Klein, David Kretzmer, and Yuval Shani to the Attorney General on February 5, 2009, and the letter of Professor Francis Raday, Mr. Avinoam Cohen and Dr. Reut Paz of the Concord Research Center for Integration of International Law in Israel of June 7, 2009. The legal position of the Military Advocate General states that the use of the military law enforcement system according to the existing investigation policy is in accordance with the duty to investigate in international law and hence the state is not obligated to create an independent investigation mechanism external to the military legal system in order to examine claims of violation of the laws of war during the military operation. For the MAG’s opinion from September 3, 2009, see the website: www.law.idf.il. For a response to this document see: Yehuda Amichai and Yuval Shani, For example, the decision to bombard a police parade, Haaretz, February 9, 2010 (in Hebrew). See also the state’s claims put forward to the UN in the context of the Goldstone Report, note 33 above. 129 Articles 2, 7 and 10 of the International Covenant on Civil and Political Rights. See also: Human Rights Committee, General Comment 20, Article 7 (Forty-Fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. 1 at 30 (1994), paragraph 14; Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev. 1/Add. 13 (2004), paragraph 15. 130 See HCJ 428/86 Barzilai v Government of Israel, Piskei Din 40(3) 505, 621-622 (1986) (in Hebrew); HCJ 425/89 Tsufan v the Chief Military Advocate General, Piskei Din 43(4) 718 (1989) (in Hebrew); Crim App 44/81 Moyal v
40 The state’s response to the Goldstone Report issued in January 2010 noted that in November 2009 a special inquiry committee was set up to evaluate claims of the violation of detainees’ rights during Operation Cast Lead.132 The creation of such a committee is meant, generally, to reach conclusions and teach lessons for the military as part of its functioning as an army.133 The existence of such inquiries and position papers in their various forms cannot serve as a replacement for a criminal investigation, especially when the testimonies suggest grave criminal offenses carried out by soldiers.134 The Supreme Court insisted upon this substantive difference between a military inquiry and a criminal investigation. The military inquiry is defined by the Supreme Court, “as an informative [inquiry] carried out with an emphasis on looking forward, in order to improve the functioning of army units.” However, a “criminal investigation serves the judicial function and hence focuses on the past with the goal of revealing the truth, legal justice and exercising the full rigor of the law against whoever violated the law.”135 The scale of the violations carried out during the operation and their severity requires a general investigation, and not just the investigation of specific violations by individuals. The findings of PCATI and Adalah suggest a policy dictating systemic infringement of detainee rights, and thus require a systematic investigation. This investigation must include a re-evaluation of the laws and rulings which allow for and authorize this systemic violation of human rights and international humanitarian law. The State of Israel violated its duty to investigate, in an independent and effective manner, the entirety of human rights violations of detainees during the course of “Cast Lead”. The law enforcement authorities refused to answer the demands of human rights organizations in Israel to carry out a comprehensive and exhaustive investigation, including the subject of the treatment of detainees.136
State of Israel, Piskei Din 36(1) 505, 517 (1982) (in Hebrew); Crim App 61/73 Shmueli v State of Israel, Piskei Din 28(1) 281, 296 (1973) Iin Hebrew). 131 HCJ 769/02 PCATI v Government of Israel, note 106 above. Paragraphs 16-40, 54 of Chief Justice Barak’s ruling. 132 State’s Response to the Goldstone Report, see note 33 above. 133 See: HCJ 561/75 Ashkenazi v Minister of Defense, Piskei Din 30(3) 309, 321 (1976) (in Hebrew). 134 Note that on April 22, 2009, the results of five operational inquiries ordered by the Chief of the General Staff were published, in order to examine complaints raised by human rights organizations and Israeli and international media outlets regarding attacks on Palestinian civilians and civilian infrastructure, medical facilities and staff and facilities of UN agencies, as well as the use of white phosphorous during the military attack on the Gaza Strip from December 27, 2008 - January 18, 2009. According the findings of these inquiries, the army “operated in accordance with international law during the fighting and was able to uphold a high level of professionalism and morality”, and that the killing of civilians was a result of errors and operational mishaps. See: Fatmeh El-‘Ajou, “On the Criminal Liability of the Israeli Army in Gaza,” Adalah’s Newsletter, Volume 59, April 2009. The article can be viewed at Adalah’s website: http://www.adalah.org/newsletter/eng/apr09/Fatmeh_English%20final%202.doc . 135 HCJ 2366/05 Atwa al-Nebari and Adalah v IDF Chief of Staff (decision delivered June 29, 2008) para. 10. See also para. 6-9. 136 The Goldstone Report reached this conclusion when it stated that Israel violated its duty to investigate: “The Mission emphasizes that effective investigation and, if appropriate, prosecution resulting from acts by its agents or by third parties involving deprivation of life, serious injuries and torture or inhuman or degrading treatment or punishment, and other possible violations of international humanitarian law and human rights law, is an obligation of the State of Israel. The Mission is concerned that the facts before it point to a failure by Israel to do so with regard to acts committed against Palestinians as reported above.” The Goldstone Report, note 4 above, paragraph 1436.
41 B. Investigation of Individual Complaints of Detainees Filed with the Attorney General and the Chief Military Advocate General PCATI submitted five individual complaints to Israeli law enforcement authorities in the names of four victims.137 Adalah filed three complaints to the authorities on behalf of ten victims.138 The complaints refer to violations documented by Adalah and PCATI and detailed in this report. In addition, a general complaint was filed by a number of human rights organizations. This complaint was referred to in detail in previous chapters; it quoted from the testimonies of five additional detainees. All of these complaints demanded the initiation of a criminal investigation against those involved on the basis of alleged violations of the penal code,139 the Military Law,140 and violations of Supreme Court rulings forbidding the use of civilians as human shields.141 Although there are numerous other victims, there exist many barriers preventing them from filing complaints. Many of the victims declared complete mistrust for the Israeli law enforcement system, in its ability—and primarily in its desire—to investigate and find the truth. Some of them asked cynically whether there is even one case in which a GSS employee stood trial for his involvement in torture of Palestinians. Some of the victims refused to file a petition publicly, fearing acts of vengeance by Israeli security forces. These detainees wondered whether human rights organizations could protect them in such a case, and were told that there is indeed no such guarantee. Another reason for detainees’ refusal
Complaints by: 1. Mr. Mahmoud Izzat Kisab to the CMAG on January 19, 2009 for violence and ill-treatment by soldiers. The MAG confirmed receipt of the complaint on February 22, 2009, answering laconically that they would inform the complainants of their view of the case. Since then, no response has been received; 2. The complaint of Raji Abed Rabbo to the CMAG from April 28,2009 regarding harsh violence at the time of detention. This complaint is being investigated by the MAG and no substantive answer has been received on the subject; 3. The complaint of Mr. Husam Attar from April 21, 2009 was addressed to both the CMAG and the Attorney General, and details the harsh violence at the time of detention and during interrogation. The MAG informed the complainants that it would update them on the status of their complaint in the future. The Attorney General confirmed receipt of the complaint but has yet to substantively respond; 4. The complaint of Mr. Imad Hamad to the Attorney General from April 23, 2009 demanding that he order the Police Investigations Unit to open a criminal investigation on suspicion of violence during interrogation was rejected on July 1, 2010. This was done on the recommendation of the Officer in Charge of GSS Interrogee Complaints (OCGIC), a GSS employee who does not constitute an independent investigating body. For more on this issue see Accountability Denied: The Absence of Investigation and Punishment of Torture in Israel, note 78 above. 138 Complaint from April 8, 2009 for the use of civilians as human shields in the name of Abbas Halawi (The Military Police’s Criminal Investigations Division closed the case in February 2010); Majdi Al-Abed Ahmed Abed Rabbo, Raji Misbah Abed Rabbo and the minors: Ala’a Muhammad Al-Attar, Ali Muhammad Al-Attar and Nafez Muhammad AlAttar; complaint with Al Mezan Center for Human Rights from June 18, 2009 regarding the use of civilians as human shields in the name of Abed Al-karim Mustafa Salah and his minor son Amin; complaint with Al Mezan from July 6, 2009 in the name of Sameer Al-Attar and his minor son. To date, a year and a half since the conclusion of the war, not a single soldier has been tried for these offenses. 139 Violations of Article 280 of the Penal Code, which forbids the abuse of power and authority, and Articles 378, 379 and 382 prohibiting assault. 140 The Military Justice Law (1955), Book of Laws 189 (in Hebrew; the Knesset’s English translation can be found here: http://www.knesset.gov.il/review/data/eng/law/kns2_militaryjustice_eng.pdf): Endangering the lives or health, prohibited under Article 72 of the Military Justice Law; undisciplined behavior under Article 128 of the Military Justice Law; disgraceful behavior under Article 129 of the Military Justice Law and unbecoming behavior under Article 130 of the Military Justice Law. 141 See HCJ Adalah, note 22 above.
42 to file complaints in their name was the fear of reprisal by Israel against their loved ones. These are the primary reasons that many Palestinian detainees from “Cast Lead” did not want to file complaints in their name yet permitted the anonymous use of their testimonies for other purposes, among them the publication of this report. Unfortunately these reasons are well grounded suspicions. Over the years PCATI, along with many other human rights organizations, has filed complaints of torture and ill-treatment to the law enforcement authorities, primarily the Attorney General. The complaints against GSS employees are systematically rejected, and not a single one of them has led to a criminal investigation. This data suggests that the Israeli law enforcement system supports and permits, for all practical purposes, violent interrogation methods.142 The duty to investigate has a strong basis in international human rights law, which requires the creation of immediate and impartial investigations regarding human rights violations described in this report.143 The UN Committee Against Torture, for example, ruled multiple times that the promptness of an investigation of complaints of torture is an important and significant means of preventing torture. It also ruled that the investigation must be impartial—that is, carried out by an authority external to those being investigated. This body, it was ruled, must have full investigative authorities, including the ability to subpoena witnesses, unrestricted access to the victims, interrogation of the officials suspected of perpetrating the violations or of involvement in the decision to execute them, the ability to study the official documentation and carry out criminal inquiries. The results of the investigation must be published widely and passed on to the complainant and to his or her representative. As stated above, the state’s response to the Goldstone Report included notification of the opening of 17 criminal investigations on the subjects of torture and ill-treatment, use of civilians as human shields, and looting. To date, no results have been made public although one and a half years have passed since these events. As for the complaints filed by PCATI and Adalah, not a single substantive answer has been received, including where complaints have been closed. In conclusion, Israel did not uphold, as is it is obligated to do, its duty to investigate, a duty anchored in international law and constituting a fundamental pillar in implementation of the human rights it supports. Despite the resolute refusal to carry out a systematic investigation of the overall conduct during the operation, even in investigations of individual cases, the authorities have responded simply that the cases are being examined.
See Accountability Denied: The Absence of Investigation and Punishment of Torture in Israel, note 74 above. The UN Committee Against Torture again addressed the issue of investigation explicitly in its conclusions regarding Israel issued in May 2009. UN Committee Against Torture Report, see note 80 above, paragraphs 19-21.
6. Summary and Recommendations
This report detailed grave violations of human rights carried out by the State of Israel during Operation “Cast Lead”. It adds to the numerous and impressive reports that came before it in that it spotlights a special population: that of Palestinians detained during the operation and transferred to the custody and responsibility of the State of Israel. It is no coincidence that the treatment of prisoners and detainees is given special attention in all known legal systems. The reason for this special attention is that taking away an individual’s freedom is among the most severe measures a state can take against individuals. Even where this deprivation of freedom is justified, the authorities must vigilantly protect the fundamental dignity of individuals under their custody. Ill- treatment and inhuman treatment of persons in custody are among the most heinous infringements of universal human rights values. These values, as stated, have received clear expression in law. In both Israeli and international law, detainees and prisoners of war are groups entitled to special rights, partly due to the fact that, once their freedom is taken away, they become helpless and completely dependent upon the will of their captors. Moreover, the harrowing experience of human history teaches that detention camps and prisons are places liable to deteriorate into catastrophe, “legal black holes” within which oftentimes, together with the deprivation of liberty, individuals are also denied humane and dignified treatment. Indeed, this tendency is supported by the testimonies of the detainees of “Cast Lead”, who describe step-by-step the violation of their rights. These violations were dealt with extensively in the report, which combined the testimonies with an analysis of the laws which bind Israel, specifically on the following subjects: Firstly, the State of Israel did not uphold its obligation to provide without delay notification of detention to the families of the suspects and to relevant organizations, in accordance with international law and Israeli law. The goal of this notification obligation is not only to alleviate the uncertainties and fears of the detainees and their families; rather its main purpose is to allow supervision of their incarceration conditions and the realization of their rights as detainees. The report demonstrates the problem clearly, showing that when this obligation was not fulfilled, illegal use was made of the detainees as human shields, while their rights were completely disregarded. Secondly, the detainees were held in inhuman conditions. They were imprisoned in cold, dark pits, and denied food and minimal sanitation. This treatment constituted a basis for the torture and ill-treatment some of detainees were subjected to at different stages of their detention, whether by soldiers or GSS interrogators. A separate chapter was devoted to the torture and ill-treatment, yet the issue of the detention conditions is inseparable from the fact of torture: the humiliation of the detainees and the breaking of their spirits were achieved no less by means of holding them in degrading conditions than by the violence of the authorities.
44 Finally, some detainees were held as “unlawful combatants”. This status, which is not recognized by international law, not only allows the State of Israel to deny the detainees prisoner-of-war status and all the rights associated with it, but also to deny them the status of protected civilians. Through the use of this legal construction Israel baldly circumvents its international obligations. Every violation described here, at the different stages of detention, is grave enough on its own; in aggregation, they constitute a complete debasement of the detainees’ rights and of Israel’s moral and legal obligations. Those who ask for their captives to be treated with appropriate respect must thoroughly examine the manner in which they treat the captives in their own custody.
Therefore PCATI and Adalah recommend:
As for the notification of detention obligation and the use of civilians as human shields: A. Provision of notification of Detention 1. Detailed information regarding the detention will be provided without delay and no later than 24 hours after the detainee’s transfer to any manner of temporary camp, to the detainee’s family members and attorney, to the Red Cross, to the Public Defender’s Office and to human rights organizations dealing with prisoners and detainees’ rights, whether upon request of the detainee or on the initiative of the authorities. 2. A record of every detainee in the custody of the army must be kept to facilitate identification of the detainee and to know his place of detention. B. The use of civilians as human shields 3. A comprehensive investigation must be ordered into the use of Palestinians as human shields during the operation and to try those responsible in a court of law, especially those with command responsibility and superior responsibility. 4. The guidelines and regulations of the Israeli army regarding the complete prohibition on the use of civilians as human shields must be made more specific. As for the physical conditions under which the detainees from Gaza were held: 1. The army must guarantee the transfer of detainees away from the fighting at the first opportunity. Until their transfer, they must not be held in a place where their lives are in danger. 2. An efficient and independent supervision mechanism must be determined to deal with detention conditions in military detention facilities, both temporary and permanent, which the state establishes in
45 any state of war or fighting. External monitoring of the GSS interrogation facilities must be permitted for representatives of the Public Defender’s Office and human rights organizations. 3. Regulation 22 of the Detention Regulations must be cancelled, and the equalization of incarceration conditions between all detainees must be ordered, in a manner which protects the dignity of all detainees and prevents their humiliation. 4. Violations of Israeli domestic law and international law revealed that physical detention conditions during all stages of detention must be investigated. As for torture and ill-treatment: 1. Legislation must be initiated, without delay, expressly and completely prohibiting torture and cruel, inhuman or degrading treatment as defined in international law, and torture and purposeful acts of cruel, inhuman or degrading treatment or punishment must be added to the penal code, while explicitly stating that the “necessity defense” and similar defenses will not apply to those who carry out or are responsible for these acts. 2. The Evidence Ordinance must be amended such that confessions extracted through torture and illtreatment will no longer be regarded as admissible in courts of law. Until that time, courts must avoid using confessions which they suspect of being extracted under torture and/or ill-treatment. 3. Every interrogation carried out by an interrogating body, especially the GSS, must be documented by audio and video. 4. Compensation for damages suffered by victims of torture and ill-treatment must be provided. 5. Israel must sign and ratify the Optional Protocol to the UN Convention Against Torture, which allows independent local and international supervision of treatment for those persons deprived of their liberty. 6. The UN Special Rapporteur on Torture must be invited to Israel to investigate the treatment of detainees and prisoners in Israel and in the occupied territories, including the alleged torture and illtreatment of Palestinian prisoners in general, and specifically during operation “Cast Lead”. 7. Access for human rights organizations to army, GSS and Prison Services incarceration facilities must be arranged, in the name of supervision and review of the upholding of detainee and prisoner rights. As for the unlawful combatants: 1. The Knesset should immediately repeal the Incarceration of Unlawful Combatants Law, 2002. 2. The Israel Prison Service must guarantee that it will uphold its obligations toward the detainees by the law, and especially with respect to its obligation to inform the detainee of his or her rights. As for the duty to investigate:
46 1. We demand the immediate establishment of an official commission of inquiry which fulfills international standards, for the purpose of investigating the violations carried out during operation “Cast Lead” and to put to a fair trial those suspected of committing criminal offenses, especially those with command responsibility and superior responsibility. 2. Within this framework, an exhaustive investigation of policy, which was followed with regards to Palestinians held in detention or imprisoned, both in Gaza and in Israeli territory, must be carried out. 3. The law enforcement authorities must order individual, fair, prompt, practical, and independent investigations of grave violations described in this report of torture and ill- treatment of detainees, including the use of civilians as human shields, degrading physical conditions of incarceration, violence by the detaining forces and interrogation methods of the GSS. 4. When those in the legal system abused their offices and prevented the severe judgment of members of the security forces who violated human rights, they became complicit, and there exists an obligation to investigate this behavior as well. Furthermore, a compensation arrangement should be created for Palestinian civilians whose rights were infringed during Operation Cast Lead. In conclusion, this report documents the stories of several dozen individuals, whose degrading treatment was part of the overall destruction and damage in the Gaza Strip during the war. These stories symbolize the manner in which the State of Israel works outside the law, and creates the same “legal black holes”, far from the public eye, within which grave violations of human rights occur.