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The Public Committee Against Torture in Israel

Adalah: The Legal Center for Arab Minority Rights in Israel

Periodic Report: June 2010

Exposed
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
Exposed

The Treatment of Palestinian Detainees during Operation “Cast Lead”

The Public Committee Against Torture in Israel


Adalah: The Legal Center for Arab Minority Rights in Israel

Research and Writing: Adv. Majd Badr, Adv. Abeer 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 Atamle-
Mahana, Adv. Samah Elkhatib Ayoub, and Adv. Haneen Naamnih for
their useful comments and contributions to this publication.

This project was made possible through the generous support of:
ICCO & 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


1

Preface

This research is the product of attorneys’ meetings with Palestinians detained during Operation “Cast
Lead” in December 2008-January 2009 and transferred to Israel for interrogation. The report presents
and analyzes the information obtained from these meetings in light of the relevant legal background,
especially the standards set out in international humanitarian law, and the reports and data published
since the end of the hostilities.
The testimonies paint a grim picture and suggest grave violations of the detainees’ human rights and
gross contempt for the rule of law. This finding demands an independent and impartial criminal
investigation into the manner in which detainees’ fundamental due process rights were trampled on and
the rule of law brutally disregarded during and after the fighting. Such an investigation is in accord with
the recommendations of the Goldstone Report, which demands an independent investigation of the
actions of the Israeli military forces on the local level, and in the absence of such a local investigation, on
the international level.
The disregard for democratic values and basic human rights along with the suspension of the rule of law
during the hostilities are a reminder of other, dark places where the “war on terror” is being waged (for
instance, the conduct of the American military towards Iraqi prisoners, the Guantanamo Bay Detention
Center, the Russian security forces in Chechnya, and others). In all of these places, “legal black holes”
appear, within which detainees have been stripped of their most basic human rights.
The violation of detainees’ rights during the hostilities was a product of a policy of collective punishment
against the whole population in the Gaza Strip since Israel “disengaged” in 2005. The unilateral
“Disengagement” was accompanied by collective punishment and siege, leading to the recent fighting
being carried out with complete disregard for the distinction between civilians and combatants. The
firing of missiles on Israeli civilians in the years preceding the military operation constitute a war crime,
but it can justify neither the sweeping violation of human rights of Palestinian detainees or the complete
suspension of the rule of law.
The abduction and conditions of confinement (in violation of international humanitarian law) under
which Israeli soldier Gilad Shalit is being held by the Islamic Resistance Movement (hereinafter: Hamas)
do not justify the violation of human rights of “Cast Lead” detainees and the conditions of their
detention.
The creation of legal black holes leads to massive and rapid deterioration of human rights. We hope that
this report will help to shed light upon and to fill in “the black hole” – the moral and legal cavity which
characterized the treatment of detainees, and which symbolizes the institutionalized disregard for
human rights and the laws of war on the part of the political and military systems, and the refusal of the
Israeli government to enforce the rule of law in these cases.
Dr. Ishai Menuchin, The Public Committee Against Torture in Israel and

Adv. Hassan Jabareen, Adalah – The Legal Center for Arab Minority Rights in Israel
2

Introduction
Much has been written on the military operation launched by Israel in the Gaza Strip on December 27,
2008, which lasted until January 18, 2009.1 Violations of international law by Israel have received much
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

1
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.

3
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.
5

1. The “Lost Time”


The arrest and detention of Palestinian residents of Gaza came in several stages. This chapter will focus
on the first stage of their detention, that is, during the period of time in which the army held
Palestinians in the Gaza Strip before their transfer to detention centers in Israel. The chapter will deal
with the lack of immediate notification regarding the detention of individuals and the use of Palestinian
civilians as “human shields” by the Israeli military forces during this period.

A. Refraining from Notification of Detention

With the detention or capture of an individual, international law requires notification to the 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

6
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

14
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 vice-
versa.
The result is that although the Israeli military held most of the detainees from January 3, 2009,
substantive information about them surfaced only in response to the petition on January 11, 2009. This
time gap is a serious digression from the deadline dictated in both Israeli and international law.
The experience of operation “Cast Lead” shows that suspicions of exploitation, ill- treatment and
humiliation were not baseless. Seemingly the lack of public supervision allowed for the use of detainees
as human shields, which will be detailed in the following section.
B. The Use of Protected Persons as “Human Shields”

During the time in which the army held detainees in the Gaza Strip, with no supervision and with no
judicial review, the soldiers treated them cold-heartedly and illegally exploited them for military
purposes, especially in order to help protect the lives of the Israeli soldiers. Some of the detainees
interviewed by PCATI and Adalah described how the army used them as human shields for many days,
sometimes even for as long as ten days.17
The use of civilians for military purposes as human shields constitutes a grave violation of both
international and Israeli law. The Fourth Geneva Convention explicitly forbids all use of the protected
civilian population to assist the military needs of the occupying army or forced use of the local residents
as a means towards military advantage or for the securing of intelligence.18 The prohibition includes the
use of civilians as “human shields”, their taking as hostages, and the threatening of family members with
physical harm in order to extract information about their relatives.
Professor Jean Pictet, in his commentaries on the Fourth Geneva Convention, described the use of
persons as “human shields” as a “cruel and barbaric” act.19 Although, according to Pictet, the occupying
power may under certain circumstances implement means to achieve control and security, it is not
allowed to make use of protected persons to attain these goals.20
The use of protected persons as human shields also violates the dignity of the Palestinian residents and
their right to protection from violence and humiliation. As such the army also violated Article 27 of the
Geneva Convention, which enforces the rights of protected residents to dignity and humane treatment.
Article 147 of the Fourth Geneva Convention defines the grave breaches of the Convention, which form
the general basis for defining war crimes.21 These grave breaches include the prohibitions on taking of

17
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

25
HCJ 3799/02 Adalah, note 22 above, paragraph 24.
26
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.

27
From the affidavit of Mr. Abed Elkarim Mustafa Abu Salah taken on April 28, 2009 in Ketziot Prison.
28
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

30
From the affidavit of Mr. Rami Abed Rabbo taken on September 3, 2009 in Eshel Prison.
31
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.

32
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-war-
1.264652.
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.
14

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.

34
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

37
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

43
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

49
Azazmi case, see note 48 above, p. 85.
50
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
52
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.israeli-
occupation.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

56
From the affidavit of Hamad Attar, taken on January 14, 2009 in Ketziot Prison.
57
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
60
See: Imprisonment Order for Unlawful Combatants (Place of Imprisonment, 2009 in Hebrew).
61
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 ad-
hoc, for the absorption of the hundreds detained during the operation, in no way justifies the degrading
conditions under which they were held. In the past the Israeli Supreme Court has addressed the
detention conditions of detainees in military camps set up temporarily in order to absorb them during
attacks and military operations. In the Sajadia case, former Chief Justice Shamgar ruled that the security
need to imprison many individuals simultaneously can explain the existence of extreme crowding at the
beginning of the wave of detentions.67 But in a later ruling former Chief Justice Barak ruled that even in
emergencies, detention facilities must be set up which meet the international criteria for minimum
detention conditions.68

C. Conditions of the Detainees in Interrogation and Detention Facilities

Humiliating physical conditions prevailed also in Israel Prison Service (IPS) detention centers to which
the detainees were transferred from the military facilities. The detainees were interrogated in these
detention centers by the GSS. During breaks between interrogations and after their conclusion, the
detainees were transferred to narrow cells used for solitary confinement. The detainees reported these
small cells as foul smelling, with thin mattresses, a general lack of hygiene, dark and rough walls and
weak, yellowish lighting 24 hours a day which interrupted and even prevented sleep.

Other detainees testified that at some point their conditions were greatly improved as they were moved
to spacious rooms and removed from solitary confinement. In retrospect they realized that this
improvement was intended only to encourage their giving confessions to collaborators, who were with
them in the new cells.

65
From the affidavit of Moussa Wahadan, taken on April 1, 2009 in Shikme Prison.
66
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.

69
From the affidavit of Wa’el Atamneh, taken on April 27, 2009 in Ohalei Keidar Prison.
70
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

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.
24

3. Torture and Ill-treatment of Detainees

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Article 5, The Universal Declaration of Human Rights.

Torture and cruel, inhuman or degrading treatment or punishment of any individual is absolutely
forbidden under international law and under Israeli law as well. According to international law, both IHL
and IHRL, the prohibition on torture and ill-treatment is absolute. This prohibition is anchored in a long
list of international human rights treaties and conventions, which Israel has ratified,74 and constitutes an
unconditional, obligatory provision of international law.75 The complete prohibition on torture, ill-
treatment, and cruel, inhuman or degrading treatment or punishment applies at all times: in times of
war as in times of peace.76 Torture and certain forms of ill-treatment may also constitute crimes against
humanity and war crimes in accordance with the Rome Statute.77

The complete prohibition on the use of torture and ill-treatment is cited in the Israeli Supreme Court
ruling in HCJ 5100/94 Public Committee against Torture in Israel v Government of Israel, although this
decision created an opening for the use of “moderate physical interrogation methods” in situations
described as “ticking bombs”.78 The prohibition on torture is not, however, anchored in Israeli

74
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-95-
17/1-T, ICTY Trial Chamber II, judgment of 10 December 1998, paras. 146, 153-7; Prosecutor v. Zejnil Delalic et al.,
Case IT-96-21-T, ICTY Trial Camber II, Judgement of 16 November 1998, para. 454; Prosecutor v. Kunarac et al.,
ICTY Case No. IT-96-23 and IT-96-23/1, Trial Chamber II, 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;, Al-
Adsani 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

83
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

86
From the affidavit of Husam Attar, taken on February 23, 2009 in Shikme Prison.
87
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

88
From the affidavit of Raji Abed Rabbo, taken on February 23, 2009 in Shikme Prison.
89
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/print-
edition/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:

92
Affidavit of Wa’el Atamneh, taken on April 27, 2009 in Ohalei Keidar Prison.
93
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.

95
From the affidavit of P.B., taken on February 23, 2009 in Shikme Prison.
96
Goldstone Report, see note 4 above, para. 1175.
32

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

97
See Amira Hass’ article, note 55 above.
98
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 prisoner-
of-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

101
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

108
HCJ 769/02, note 106 above, paragraph 28 to former Chief Justice Barak’s ruling (2006).
109
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:

115
Regulation 12(b) of Imprisonment of Unlawful Combatants (Conditions of Incarceration).
116
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

119
From the affidavit of Hamdam Alsufi, taken on January 17, 2009 in Ketziot Prison.
120
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

125
The Goldstone Report, see note 12 above, paragraph 1168.
126
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.
38

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

127
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

128
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
137
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 Al-
Attar; 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.

142
See Accountability Denied: The Absence of Investigation and Punishment of Torture in Israel, note 74 above.
143
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.
43

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 ill-
treatment 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 ill-
treatment 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.