Exposed-Treatment of Detainees Cast Lead_June 2010

8/9/2019 Exposed-Treatment of Detainees Cast Lead_June 2010

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T Pblic Cmmitt Aait Trtr i IralAdala: T Lal Ctr r Arab Mirity Rit i Iral

Pridic Rprt: June 2010

exposedThe TReATMenT of PALesTInIAn DeTAInees DuRIngoPeRATIon CAsT LeAD

This project was made possible by the support of the following funders: ICCO, Trcaire.

www.stoptorture.org.il www.adalah.org


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Exposed

The Treatment of Palestinian Detainees during Operation Cast Lead

The Public Committee Against Torture in Israel

Adalah: The Legal Center for Arab Minority Rights in Israel

Research and Writing: Adv. Majd Badr, Adv. Abeer BakerEditing: Adv. Irit Ballas, Adv. Bana Shoughry-Badarne

English Translation: Ron Makleff

Thank you to Adv. Hassan Jabareen, Dr. Yuval Ginbar, Mr. Carmi Lecker,

Dr. Ishai Menuchin, Mr. Muhammad Sarahne, Adv. Tahreer Atamle-

Mahana, Adv. Samah Elkhatib Ayoub, and Adv. Haneen Naamnih for

their useful comments and contributions to this publication.

This project was made possible through the generous support of:

ICCO & Trcaire


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Table of Contents

Preface: 1.

Introduction: 2

1. The Lost Time: 5

A. Refraining from Notification of Detention: 5

B. The Use of Protected Persons as Human Shields: 8

2. Conditions under Detention and Imprisonment : 14

A. Detention Conditions of Detainees in the Gaza Strip: 17

B. Conditions in Military Detention Facilities in Israel: 19

C. Conditions of the Detainees in Interrogation Facilities

and Prisons: 21

3. Torture and Ill -treatment of Detainees: 24

A. Soldier Violence against Detainees in the Gaza Strip: 26

B. Ill-treatment and Torture during Field Interrogations: 28

C. Torture and Ill-treatment during GSS Interrogations: 30

4. Unlawful Combatants: 32

5. The Duty to Investigate Complaints: 38

A. Comprehensive Investigation of the Treatment of Prisoners

and their Conditions of Incarceration: 38

B. Investigation of Individual Complaints of Detainees filed with the

Attorney General and the Chief Military Advocate General: 41

6. Summary and Recommendations: 43


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Preface

This research is the product of attorneys meetings with Palestinians detained during Operation Cast

Lead in December 2008-January 2009 and transferred to Israel for interrogation. The report presents

and analyzes the information obtained from these meetings in light of the relevant legal background,

especially the standards set out in international humanitarian law, and the reports and data published

since the end of the hostilities.

The testimonies paint a grim picture and suggest grave violations of the detainees human rights and

gross contempt for the rule of law. This finding demands an independent and impartial criminal

investigation into the manner in which detainees fundamental due process rights were trampled on and

the rule of law brutally disregarded during and after the fighting. Such an investigation is in accord with

the recommendations of the Goldstone Report, which demands an independent investigation of the

actions of the Israeli military forces on the local level, and in the absence of such a local investigation, on

the international level.

The disregard for democratic values and basic human rights along with the suspension of the rule of law

during the hostilities are a reminder of other, dark places where the war on terror is being waged (for

instance, the conduct of the American military towards Iraqi prisoners, the Guantanamo Bay Detention

Center, the Russian security forces in Chechnya, and others). In all of these places, legal black holes

appear, within which detainees have been stripped of their most basic human rights.

The violation of detainees rights during the hostilities was a product of a policy of collective punishment

against the whole population in the Gaza Strip since Israel disengaged in 2005. The unilateral

Disengagement was accompanied by collective punishment and siege, leading to the recent fighting

being carried out with complete disregard for the distinction between civilians and combatants. The

firing of missiles on Israeli civilians in the years preceding the military operation constitute a war crime,

but it can justify neither the sweeping violation of human rights of Palestinian detainees or the complete

suspension of the rule of law.

The abduction and conditions of confinement (in violation of international humanitarian law) under

which Israeli soldier Gilad Shalit is being held by the Islamic Resistance Movement (hereinafter: Hamas)

do not justify the violation of human rights of Cast Lead detainees and the conditions of their

detention.

The creation of legal black holes leads to massive and rapid deterioration of human rights. We hope that

this report will help to shed light upon and to fill in the black hole the moral and legal cavity which

characterized the treatment of detainees, and which symbolizes the institutionalized disregard for

human rights and the laws of war on the part of the political and military systems, and the refusal of the

Israeli government to enforce the rule of law in these cases.

Dr. Ishai Menuchin, The Public Committee Against Torture in Israel and

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


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Introduction

Much has been written on the military operation launched by Israel in the Gaza Strip on December 27,

2008, which lasted until January 18, 2009.1 Violations of international law by Israel have received much

attentionincluding both violations of human rights and violations of the laws of war. This report will

focus on an aspect of these violations which has not received much coverage: the way that Israel treated

Palestinian residents of the Gaza Strip who were deprived of their liberty, whether detained or

imprisoned, during the operation.

Background: The Operation in Gaza, December 2008-January 2009

Preceding the military Operation Cast Lead (hereinafter: the operation or Cast Lead) was a siege,

which continues until today, on the 1.5 million residents of the Gaza Strip, immediately following the

seizure of Palestinian Authority institutions by Hamas in June 2007. We note that the Gaza Stripconstitutes occupied territory since June 1967.2 The operation was meant, according to the Israeli

government, to change the security situation in the south of Israel. In reality, it reaped unprecedented

destruction and claimed a large number of civilian victims. Among the reasons for the death and injury

of so many Palestinian civilians in the fighting were the bombing of civilian buildings and institutions and

inaccurate or indiscriminate attacks in densely populated areas; grave damage to the health and

emergency rescue systems; and the collapse of electricity, water and sewage infrastructure. The

Palestinian armed groups also fired on Israeli civilian targets, though the damage caused was

comparably small.

In an examination of the publications and reports on the Gaza offensive by international organizations,

especially the UN and its different agencies and international, Palestinian and Israeli human rights

organizations, a variety of subjects are raised, including: damage to UN facilities in the Gaza Strip; harm

to civilians during the fighting; the use by military forces of prohibited weaponry; use of Palestinian

civilians as human shields; damage to hospitals and ambulances and killing of and injury to medical

teams; harm to children during the operation; consequences of the operation on the population from a

gender perspective and through the eyes of women; grave damage to the infrastructure in the Strip; and

1The Israeli government did not declare Operation Cast Lead to be a war as required in clause 40( ) of Basic

Law: the Government. Hence, the war action remained under clause 40() of the basic law, which allows the

government to order military actions necessary for protection of the state and public security.2

At the time of Israels military withdrawal/Disengagement from the Gaza Strip and on 12 September 2005,

Israel declared its military administration over Gaza to have ended. At the same time, jurisdiction over Palestinian

from the Gaza Strip in Israeli civilian courts was enacted by clause 13 of the Criminal Code 1977. According to this

legal model, residents of the Gaza Strip would be accused of committing foreign crimes. For this purpose there was

a need for the written agreement of the Attorney General in order to try them in court, see clause 9(B) of the

Criminal Code. This view is internationally unacceptable; as long as Israel continues to enforce its sovereign

authority in the Gaza Strip it remains occupied territory. Among other examples, that can be enumerated are

Israels complete control over: the airspace and waters of the Strip; the population registrar; movement between

the Gaza Strip and the West Bank; the entry of products into the Strip; and the tax system. See: Sari Bashi and

Kenneth Mann, Disengaged Occupiers: The Legal Status of Gaza

http://www.gisha.org/UserFiles/File/Report%20for%20the%20website.pdf. See also

www.btselem.org/english/Gaza_Strip/Gaza_Status.asp.


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violations by Palestinian armed groups.3 The Report of the United Nations Fact Finding Mission on the

Gaza Conflict (hereinafter: the Goldstone Report) received the most public attention.4 Yet despite the

large amount of material analyzing the operation, there is no detailed description of the fate of those

Palestinians arrested and detained during Cast Lead.

This report will attempt to fill the gap in the literature. The report is based mostly on testimonies taken

by the Public Committee Against Torture in Israel (hereinafter: PCATI) and Adalah: The Legal Center for

Arab Minority Rights in Israel (hereinafter: Adalah) during prisoner visits by attorneys on their behalf.5

Some of the testimonies have been provided anonymously because the victims were unwilling to be

identified publicly. They declined to have their names published because, among other reasons, of the

fear of revenge actions against them or their loved ones at the hands of the interrogation and detention

services or the army.

The report focuses on a number of grave violations of international law concerning human rights and

the laws of war carried out by the security forces. The subjects will be separated into sections in which

the factual findings will be presented, mostly from the testimonies taken; the legal norms on the

different subjects will be presented, which suggest that Israel acted in violation of these legal norms

based on international agreements to which Israel is obligated to adhere and with which it is obliged to

act in accordance.

3Report of UNHQ Board of Inquiry into incidents in the Gaza Strip between 27 December 2008 and 19 January

2009- SecGen Summary, letter to SecCo President (May 2009); Amnesty International, Israel/Gaza: Operation

"Cast Lead": 22 days of death and destruction (July 2009); Euro-Mediterranean Human Rights Network, Active

but Acquiescent: EU's Response to the Israeli Military Offensive in the Gaza Strip (May 2009); FIDH, The

International Federation for Human Rights, Operation Cast Lead, Gaza Strip One Year After, Accountability A keychallenge for peace (December 2009); Human Rights Watch, Precisely Wrong: Gaza Civilians Killed by Israeli

Drone-Launched Missiles (June 2009); Human Rights Watch, Rain of Fire: Israel's Unlawful Use of WhitePhosphorus in Gaza (March 2009); Human Rights Watch, White Flag Deaths: Killings of Palestinian Civiliansduring Operation Cast Lead (August 2009); Report of the Independent Fact-Finding Committee to the League of

Arab States on Gaza: No Safe Place (April 2009); Al Mezan Center for Human Rights, Hiding Behind Civilians: Al

Mezan report on the Use of Palestinian Civilians as Human Shields by the Israeli Occupation Forces (April 2009);

Al Mezan Center for Human Rights, The Targeting of Medical Centers, Ambulance Teams and Civil Defense Teams

during the Israeli Offensive "Operation Cast Lead" against the Gaza Strip, 27 December 2008 18 January 2009

(March 2009); Palestinian Centre for Human Rights, Targeted Civilians: A PCHR Report on the Israeli Military

Offensive against the Gaza Strip (27 December 2008 18 January 2009) (September 2009); Palestinian Centre for

Human Rights, The Impact of the Israeli Offensive (27 December 2008 18 January 2009) on the Water andSewage Sectors in the Gaza Strip (July 2009); Palestinian Centre for Human Rights, Through Women's Eyes: APCHR Report on the Gender-Specific Impact and Consequences of Operation Cast Lead (September 2009);

Palestinian Centre for Human Rights, War Crimes against Children: new report on the 313 children killed during

Gaza offensive (May 2009); Btselem: The Israeli Information Center for Human Rights in the Occupied Territories,

Guidelines for Israels Investigation into Operation Cast Lead (February 2009);Briza, Special Edition, Protocol for

Combatants Discussion of Rabin Pre-Military Preparation School Graduates, in the Context of Operation Cast

Lead (March 2009) (in Hebrew); The Public Committee Against Torture in Israel, No Second Thoughts: Changes in

the IDF's Combat Doctrine In Light Of Operation Cast Lead (November 2009); Breaking the Silence, Cast Lead:

Testimony of Soldiers who Served in Operation Cast Lead (July 2009).4

Human Rights Council, Report of the United Nations Fact Finding Mission on the Gaza Conflict, UN Doc.

A/HRC/12/48, 25 (September 2009).5

All of the attorneys took testimonies on behalf of PCATI, except Adv. Maher Talhami, who took testimonies on

behalf of both PCATI and Adalah.


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The first chapter will discuss the lost time, the period between the detention or arrest of the

individuals and their transport to and absorption at official detention facilities in Israel. This chapter will

include a discussion of the refraining from notification about arrests; the significant time that often

passed without a detainees loved ones being informed of his fate; and the use by the security forces of

Palestinian civilians as human shields during the ground operation in the Gaza Strip. The second

chapter will deal with the physical conditions under which Gaza residents were held from the moment

of detention by the army until the conclusion of their interrogation by the General Security Services

(hereinafter: GSS, or Shabak). The third chapter of the report will focus on torture, ill-treatment and

cruel, inhuman or degrading treatment of the detainees at the hands of the security forces from the

moment of their detention by soldiers until the conclusion of their interrogations by the GSS. The fourth

chapter will discuss the holding of a number of detained Gazans as unlawful combatants in accordance

with the Incarceration of Unlawful Combatants Law - 2002. The chapter will further discuss the

consequences of an individual being classified as an unlawful combatant. The fifth chapter will bededicated to the obligation upon Israel to investigate the suspicions of grave violations of international

humanitarian law (hereinafter: IHL) and human rights law. The chapter will focus on the general duty to

investigate complaints or reports concerning treatment of detainees and on the duty to investigate

specific cases brought to the attention of law enforcement authorities. We shall conclude with a chapter

of recommendations.


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1. The Lost Time

The arrest and detention of Palestinian residents of Gaza came in several stages. This chapter will focus

on the first stage of their detention, that is, during the period of time in which the army held

Palestinians in the Gaza Strip before their transfer to detention centers in Israel. The chapter will deal

with the lack of immediate notification regarding the detention of individuals and the use of Palestinian

civilians as human shields by the Israeli military forces during this period.

A. Refraining from Notification of Detention

With the detention or capture of an individual, international law requires notification to the individualsfamily and the International Committee of the Red Cross (hereinafter: ICRC) as soon as he is interned,

or at the latest not more than one week after his arrival in a place of internment, even when being

transferred to a temporary camp. This is to be done through the distribution of an internment card

which shall include the detainees address and state of health, to be sent quickly and without delay.6

This obligation is based on Article 92 of the UN Standard Minimum Rules for the Treatment of

Prisoners.7

Israeli law imposes upon the detention and interrogation systems an obligation to give notice upon

detention or change in place of detention, without delay, to an individual close to the detainee and the

detainees attorney. The Israeli Supreme Court recognized this notification obligation as a part of the

basic rights of a detainee, and ruled that the proper authorities inform his relatives of his arrest and his

place of detention so that they will be apprised of what befell their detained relative, and how they are

able to offer him the assistance he requires to safeguard his liberty. This is a natural right derived from

human dignity and general principles of justice, and accrues both to the detainee himself and to his

relatives.8 The court ruled that this right constitutes a guarantee for other basic rights such as the right

to liberty, to life and to bodily integrity.9

6This obligation is based upon Article 106 of the Convention (IV) relative to the Protection of Civilian Persons in

Time of War, Geneva, 12 August 1949 (hereinafter: The Fourth Geneva Convention) and in Article 70 of

Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 (hereinafter: The Third

Geneva Convention).7Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the

Prevention of Crime and the Treatment of Offenders held at Geneva in 1955, and approved by the Economic and

Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 (hereinafter: Minimum

Standards for Treatment of Prisoners).8

HCJ 670/89 Odeh v. Commander of IDF Forces in Judea and Samaria, Piskei Din 43(4) 515, 517 (1989) (in

Hebrew). An unofficial translation of the judgment can be viewed at HaMokeds website:

http://hamoked.org.il/items/50_eng.pdf.9

See Article 33 of the Criminal Procedure Law (Enforcement Authorities Detentions), 1996, Book of Laws 1592;

Article 78A(b)of Security Instructions Order (Amendment 53)(Judea area)(No. 1220)(5748-1988); HCJ 9332/02

Islam Muhammad Rushdie Jirar v Commander of IDF Forces in the West Bank, Tak-El 2002(4) 737 (2002). For a

current ruling on the notification requirement and its importance see HCJ 9332/02 Jirar v Commander of IDF


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The Supreme Court decided upon a maximum period of 24 hours for the provision of information on the

place of detention of an individual.10 In this context, the Supreme Court in the Hirbawi Affair gave

official status to an agreement on the implementation of the notification obligation which requires,

among other things, a commitment by the authorities to pass on information by telephone, upon their

own initiative and without delay, to the relatives of the detainee and, upon the detainees request, also

to his attorney. Likewise, the court decided that the Supervision and Control Center of the IDF

(hereinafter: the SCC), is responsible for collecting current information regarding detentions and the

place of detention of individuals, in a manner which will enable the locating of detainees if such

information is requested by an outside body. The court further ruled that the SCC shall convey this

information not only to the detainees family and attorney, but to public organizations dealing with

prisoners rights as well.11

From the outset of the attack and especially with the entry of ground troops to the Gaza Strip, PCATI,

Adalah and other human rights organizations in Israel received dozens of requests from Palestinians in

Gaza and from Palestinian human rights organizations for information on Palestinians detained or

arrested in their homes during the operation. These requests continued to be made until after the

ceasing of hostilities, as the military authorities failed to provide notification of the arrests.

Human rights organizations in Israel cooperated by taking a number of steps to locate the detainees.

Based initially on publications in the Israeli media12 suggesting mass arrests were planned during the

military operation, and later on reports of hundreds of Palestinians arrested and under IDF custody,

PCATI and the Association for Civil Rights in Israel (hereinafter: ACRI) complained on January 8, 2009, in

the name of a number of human rights organizations in Israel to the Chief Military Advocate General

(hereinafter: CMAG), demanding current information on those detained during the operation in Gaza.

The organizations demanded the creation of a mechanism by which people whose relatives were

arrested and representatives of human rights organizations could immediately inquire as to where the

detainees were being held.13

The CMAGs laconic answer of January 19, 2009 regarding the notification obligation sufficed with

pointing out that the ICRC was informed of the detentions of Palestinians in Gaza , and did not include

information about the date of the detentions. The answer further failed to include other details about

Forces (decision delivered on 20.12.2002) (in Hebrew). See also Delay of notification of arrest Guidelines of the

Attorney General 2003.4 (5764).10

HCJ 10447/07 Dabek v Commander of IDF Forces in the West Bank (decision delivered 17.11.2009), filed by

HaMoked Center for the Defense of the Individual which regularly assists in locating Palestinians detained by

Israeli security forces.11

HCJ 6757/95 Hirbawi v Commander of IDF Forces in Judea and Samaria, Tak-El 96(1) 103 (1996) (in Hebrew). An

unofficial translation of the decision can be found on the website of HaMoked: http://www.hamoked.org.il. The

aforementioned agreement was put in writing on 3.3.1996 by the Commanding Officer of the SCC detention

command.12

Hanan Greenberg, "Gaza op: Most detainees not Hamas men," Ynet 13.1.2009. The article can be viewed at:

http://www.ynet.co.il/english/articles/0,7340,L-3655587,00.html.13

The letter from Adv. Lila Margalit and Adv. Bana Shoughry-Badarne to the CMAG (8.1.2009) can be viewed on

the website of PCATI: www.stoptorture.org.il/en.


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the detention conditions of the detainees, except for the fact that the ICRC was allowed to visit Teyman

Field army camp and meet the prisoners there.

In parallel, HaMoked Center for the Defense of the Individual (hereinafter: HaMoked) requested onJanuary 7, 2009 from the SCC to locate tens of Palestinians whose relatives reported they had

apparently been arrested by the army. The following day HaMoked was informed that the SCC was

unable to provide information about the detainees, and thus HaMoked immediately filed a habeas

corpus petition in the name of 15 of the detainees.14 The states response of January 11, 2009 included,

for the first time, information about the petitioners: who was detained, who was released, and where

they were held.15 The response further noted that, As long as the fighting continues in the Gaza Strip,

the IDF may detain more Palestinian residents. The names of those detained shall be passed to the SCC

of Incarceration, under the Military Police. An effort will be made to ensure that the names be relayed

to the SCC of Incarceration not later than 48 hours after their transfer to Israel (emphasis added). It will

be possible to address the SCC of Incarceration regarding specific detainees in accordance with the

existing guidelines of the SCC of Incarceration.16

The state attorneys response implies that the state was not willing to ensure notification of detention

while the army was still holding a detainee in the fighting zone and that the time allowed for notification

would be counted only from the moment of his transfer to Israel. This interpretation of the states

notification obligation has no legal basis, as the obligation to notify is relevant from the moment of

transfer to any temporary camp, even if this camp is located outside the sovereign territory of the state

responsible for the detention. Our view is that the obligation to notify of detention and place of

detention is valid also during hostilities. In this instance, the state attempted to release itself from the

notification obligation whenever the detainee is not in Israeli territory. In this way detainees are held

illegally for an unlimited amount of time in the fighting zone, as captives under the exclusive control of

the military. Even if in exceptional cases the notification obligation was impossible to fulfill, the

authorities must act to fulfill it from the first moment those exceptional circumstances cease to exist.

The official time of arrest has many consequences: for example, it will determine the time at which the

detainee will be brought before a judge for a hearing on whether to extend detention, as well as the

date until which the detainee may be prevented from meeting an attorney. Furthermore, failure to

notify about detention poses a serious danger that the army will use the detainees for its own security

and fighting needs, while humiliating and even torturing them.

The states response further shows that it places the obligation to provide notification of detention,

which legally it must fulfill, on the shoulders of the detainees themselves, their families and those

14HCJ 289/09 Habib Attar v IDF, Tak-El 2009(1) 2437 (2009) (in Hebrew). The complaint, filed on 8.1.2009, can be

viewed on the website of HaMoked: www.hamoked.org.il (in Hebrew).15

The answer did not specify whether or not this information had been passed on to the ICRC.16

See HCJ 289/09 Habib Attar v IDF, note 14 above. See also, the habeas corpus appeal from HaMoked, the states

response and the response of the petitioners to states response. The request was rejected on the basis of legal

precedent and not on its own merits. To view these files, see HaMokeds website and the Supreme Court website:

www.court.gov.il. See also: Article 51 of the 4th

Geneva Convention, which states, The Occupying Power may not

compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at

securing voluntary enlistment is permitted.


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concerned with their well-being. According to the states argument, the detainees families are

responsible for approaching the authorities to receive information about their loved ones, and not vice-

versa.

The result is that although the Israeli military held most of the detainees from January 3, 2009,

substantive information about them surfaced only in response to the petition on January 11, 2009. This

time gap is a serious digression from the deadline dictated in both Israeli and international law.

The experience of operation Cast Lead shows that suspicions of exploitation, ill- treatment and

humiliation were not baseless. Seemingly the lack of public supervision allowed for the use of detainees

as human shields, which will be detailed in the following section.

B. The Use of Protected Persons as Human Shields

During the time in which the army held detainees in the Gaza Strip, with no supervision and with no

judicial review, the soldiers treated them cold-heartedly and illegally exploited them for military

purposes, especially in order to help protect the lives of the Israeli soldiers. Some of the detainees

interviewed by PCATI and Adalah described how the army used them as human shields for many days,

sometimes even for as long as ten days.17

The use of civilians for military purposes as human shields constitutes a grave violation of both

international and Israeli law. The Fourth Geneva Convention explicitly forbids all use of the protected

civilian population to assist the military needs of the occupying army or forced use of the local residents

as a means towards military advantage or for the securing of intelligence.18 The prohibition includes the

use of civilians as human shields, their taking as hostages, and the threatening of family members with

physical harm in order to extract information about their relatives.

Professor Jean Pictet, in his commentaries on the Fourth Geneva Convention, described the use of

persons as human shields as a cruel and barbaric act.19 Although, according to Pictet, the occupying

power may under certain circumstances implement means to achieve control and security, it is not

allowed to make use of protected persons to attain these goals.20

The use of protected persons as human shields also violates the dignity of the Palestinian residents and

their right to protection from violence and humiliation. As such the army also violated Article 27 of the

Geneva Convention, which enforces the rights of protected residents to dignity and humane treatment.

Article 147 of the Fourth Geneva Convention defines the grave breaches of the Convention, which form

the general basis for defining war crimes.21 These grave breaches include the prohibitions on taking of

17Amos Harel, Barak: Criticism of IDF should be directed at me, Haaretz, July 15, 2009. The article can be viewed

at http://www.haaretz.com/print-edition/news/barak-criticism-of-idf-should-be-directed-at-me-1.280018.18

See for example, Articles 28 and 51 of the Fourth Geneva Convention, and note 6 above.19

J. Pictet, Commentary IV Geneva Convention 208 (1958).20

See for instance the final clause of Article 27 of the Fourth Geneva Convention, cited in note 6 above, which

states: However, the parties to the conflict may take such measures of control and security in regard to protected

persons as may be necessary as a result of the war.21

Article 147 of the Fourth Geneva Convention, cited in note 6 above, states: Grave breaches to which the

preceding Article relates shall be those involving any of the following acts, if committed against persons or


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hostages and on coerced service in the occupying army. Further, grave breaches of the Fourth Geneva

Convention are included among the crimes the International Criminal Tribunals for the former

Yugoslavia (1993) and Rwanda (1995) were authorized to prosecute. For example, Article 2 of the

Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) states that compelling a

civilian to serve in the forces of a hostile power or taking civilians as hostages, among other violations,

constitute grave breaches of the Fourth Geneva Convention and hence the Tribunal is authorized to

prosecute these crimes. Article 4 of the Statute of the International Criminal Tribunal for Rwanda (ICTR)

contains similar prohibitions on the taking of hostages. Also in the Statute of the International Criminal

Court (ICC) (1998), Article 8 defines war crimes as grave breaches of the Fourth Geneva Convention

including the compulsion of protected persons to serve in the forces of a hostile power and the taking of

hostages.

The compulsion of Palestinian civilians to serve as human shields for the army, while they were under

the complete control of the soldiers, was an intentional act which exposed their lives to danger and

caused them fear and suffering. With these acts the army also violated the prohibition on torture and

cruel, inhuman and degrading treatment or punishment, as protected by the Convention Against

Torture, mentioned above.

The Israeli Supreme Court has also banned the use of protected civilians as hostages and as human

shields.22 In the detailed precedent-setting decision from 2005, the Supreme Court accepted Adalahs

petition, filed on behalf of Adalah and other Israeli and Palestinian human rights organizations, and

completely and unconditionally prohibited the use of civilians as human shields. The petition was filed

during Operation Defensive Shield in 2002, when Israeli army forces invaded the Jenin refugee camp

and Palestinian cities and towns throughout the West Bank. Reports published by various human rights

organizations, such as Btselem, Amnesty International23 and Human Rights Watch,24 documented at the

time the manner in which army forces carried out unlawful acts in the refugee camp and other cities and

charged that these acts constituted war crimes. On the basis of these reports, the petitioners argued

that Israels actions violated international humanitarian law and international criminal law as well as the

prohibition on violating the life, bodily integrity, liberty, and dignity of residents under the Israeli Basic

Law: Human Dignity and Liberty.

The Supreme Court ruled unequivocally that it is forbidden to exploit the civilian population for the

military needs of the occupying power or to volunteer them into cooperation with the army. From this

general prohibition, the court ruled, follows the specific prohibition on use of local residents as human

property protected by the present Convention: willful killing, torture or inhuman treatment, including biological

experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer

or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile

Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present

Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military

necessity and carried out unlawfully and wantonly.22

HCJ 3799/02 Adalah: The Legal Center for Arab Minority Rights in Israel v GOC Central Command, IDF Tak-El

2005(4), 49 (2005) (in Hebrew). An English translation of the petition and decision can viewed at Adalahs website:

http://www.adalah.org/features/humshields/decision061005.pdf.23

Amnesty International, The Heavy Price of the Israeli Incursions, April 2002, p 11.24

Human Rights Watch, Jenin: IDF Military Operations, May 2002.


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shields in order to gain information or to pass along messages or warnings.25 The court emphasized

that the source of this prohibition was, among other things, the international humanitarian law, which

prohibits the use of protected persons as part of the war effort and requires separation between the

civilian population and the military action. The court further emphasized that the army must not send a

local resident into the area within which a military action is taking place, even with his permission, ruling

that the inherent inequality between the occupying power and the local resident eliminates any realistic

possibility that the local resident could resist the armys instructions; as such it is clear that in most cases

the residents agreement or consent would not be honest or true.

Despite the prohibition imposed by the Supreme Court on the use of Palestinian civilians as human

shields and the dictates of international law, the army continues to use this illegal practice both in the

West Bank26 and in the Gaza Strip, including during Operation Cast Lead. And indeed, some of the

detainees interviewed by PCATI and Adalah testified that they were used by soldiers as human shields. It

seems that this use, in violation of the courts ruling, was made possible, among other things, by the lack

of supervision over the treatment of the detainees, which in turn was possible due to the failure to

provide notification of their detention.

What follows are excerpts from the testimonies taken from detainees relating the manner in which they

were used as human shields by IDF soldiers, in violation of the Supreme Courts ruling.

Mr. Abed Elkarim Mustafa Salah and his minor son

Mr. Abed Elkarim Mustafa Abu Salah is a resident of Jabalia, a father of nine and a construction worker

by trade. On January 4, 2009 at 14:00 some 20 soldiers burst into his home, carried out an aggressive

search causing much damage to the contents of the home, and arrested him and his minor son, Amin. In

his testimony Salah describes, among other occurrences, how he and his son were used as human

shields over a period of 10 days during which they were held by the army in the fighting zone. His

description follows:

At around 14:00 on January 4, 2009, while I was sitting with my family to eat lunch in

my house in Izzbat Abed Rabbo (neighborhood), army soldiers burst the door of my

house and around 20 soldiers entered the house [...] Afterwards they took me out of the

house and instructed me to tell my wife and children to walk in the direction of Jabalia

[...], the Israeli army detained me and my son [...] The soldiers tied my hands and my

sons hands [...] with plastic handcuffs [...] For a period of 10 days the soldiers used me

and my son as human shields, when they would force us to enter peoples houses in

order to search for people in the house. After we would leave the house the soldiers

would send a dog inside and after that they would enter.

During this whole period my son and I were transported with the soldiers and in the

night they would take us back to sleep in the house of Ismail Nabhan. Over this period of

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

26For cases in which Palestinian civilians were used as human shields, see Adalahs report at:

http://www.adalah.org/newsletter/eng/jul09/Rana_Human_Shields_update_report_Englsih_july_2009.pdf.


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10 days the soldiers sent us into countless homes [...] Entering the houses, searching in

them and opening the doors and the windows.27

After being brought to Israel, Mr. Abu Salah was declared an unlawful combatant and released fourmonths later without charge.

On June 18, 2009 Adalah submitted a complaint to the CMAG on behalf of Mr. Abu Salah demanding the

opening of a criminal investigation against the soldiers. On August 27, 2009 the Military Polices Criminal

Investigations Division (hereinafter: CID) informed Adalah that a criminal investigation had been

opened. Mr. Abu Salah and his son Amin testified before the CID on November 24, 2009. No decision has

yet been announced in their case.

Amin, Mr. Abu Salahs minor son, testified that the army also used his cousin Yusef (19), who suffers

from mental retardation, as a human shield. According to Amin, Yusef was ordered by the army to enter

houses, open windows and doors and destroy house fences.28

Mr. Sameer Muhammad Ali Al-Attar

Mr. Sameer Al-Attar is a resident of Beit Lahiya, works as a driver and is a father of six. On January 5,

2009 the army began to fire toward his home, forcing the family to flee from the house. As the family

left their home, the soldiers detained Mr. Al-Attar, his minor son and eight other residents, and turned

them first into a human shield chain for the soldiers, and then into hostages while they fired from the

house in which the detainees were being held:

While they took me from the house along with 8 other detainees to the house of Khalil

Attar, the soldiers shackled us with plastic handcuffs, ordered us to hold hands and to

walk as a chain with our backs to the soldiers. That is, we were walking down the street.

In the house of Khalil they separated us and shackled my hands behind my back with

plastic handcuffs. My eyes were not covered.

The soldiers took me to a room, ordered me to sit on the ground and began to fire in the

direction of the houses. There was no firing in the direction of the soldiers. Anyone

outside could easily see that we were located in the room next to the soldiers.

After some time, my eyes were covered along with those of all the detainees, and we left

the house. The soldiers walking on the sidewalk told us to walk one after another in the

middle of the road, while every detainee held the clothing of the detainee in front of him.

During this time the soldiers would fire in the direction of the houses. I could hear them

speaking in Hebrew and firing in all directions.29

On July 6, 2009 Adalah petitioned the CMAG in the name of Sameer Attar, demanding the opening of a

criminal investigation against the soldiers. To date, no investigation has been opened in the case of Mr.

Al-Attar and he has not been summoned to testify before the CID of the Military Police.

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

28Reported by Amin Salah to the Al Mezan Center for Human Rights in Gaza on September 5, 2009.

29From the testimony of Sameer Attar, given to Adalah in a telephone conversation in July 2009.


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Mr. Rami Abed Rabbo

Mr. Rami Abed Rabbo is a resident of Jabalia. At around 16:00 on January 6, 2009 he was in his home

together with 15 family members when they were ordered, along with the other residents of theirneighborhood, to leave their home before it would be bombarded. In his affidavit, Mr. Abed Rabbo

describes how he, his brother Raji and Hamad Abed Rabbo were used as human shields over a period of

three days during which they were held by the army:

At 19:00 an officer arrived and checked our identity card numbers on a small computer.

After the check, the officer released all the men except for me and my brother Raji

Misbah Abed Rabbo and Hamad Abed Rabbo. After the check the soldiers shackled our

hands behind our backs with plastic handcuffs. Afterwards, and for a period of three

days, the soldiers held us with them and sent us from house to house in the

neighborhood, which we would enter through the windows and balconies. During these

three days we were shackled with plastic handcuffs and the soldiers did not provide us

with food or water, and they used us as human shields when they would send us into

houses before they entered themselves, and on their orders checking if there were

people in the houses ... The next morning around 05:00 the soldiers ordered us to leave

the house with them and to advance within the neighborhood, instructing us to walk at

the front of the force with the soldiers behind us and aiming their weapons toward us.

On that day the soldiers ordered us to enter first to three different houses in order to

carry out a search and make sure there were no people inside. The soldiers, after we

would exit the house, would send a dog and after it exited they would check a

mechanism hanging around its neck and only then entering the house and setting up

there.30

A complaint on behalf of Mr. Abed Rabbo was filed with the CMAG in September 2009 by Adalah, but to

date no criminal investigation has been opened.

Mr. Raji Abed Rabbo, who was with Rami during their use as human shields, testified that:

After that we were moved to several more houses of neighborhood residents, as I and

another 9 people were sent into the houses before the soldiers and at their command.31On April 8, 2009 Adalah demanded that the Attorney General open a criminal investigation in the case,

which was transferred to the Military Polices CID. In October 2009, CID asked Adalah to provide them

with medical documents supporting his claim that he had been injured as a result of being struck by the

soldiers. To date, no information has been received from the Military Police regarding the progress of

the investigation.

The Goldstone Mission issued findings and conclusions on the Israeli militarys use of Palestinians as

human shields. The investigators of the fact finding mission were presented with many complaints in

this regard, and the Mission researched and documented four cases in detail. The Mission concluded

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

31From the affidavit of Mr. Raji Abed Rabbo, taken by the Public Committee Against Torture in Israel on February

23, 2009.


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that Palestinians were indeed used as human shields, in contrast to the armys denials published in the

media.32 The states response to the Goldstone Mission report confirmed that the complaints were

transferred for criminal investigation, yet it failed to specify the exact number of complaints and did not

provide updates on the results of the investigation.33

Therefore, the Israeli military gravely violated several articles of the Fourth Geneva Convention in its use

of civilians for military purposes through coercion, and their humiliation, injury and taking as hostages.

Thus Israel committed war crimes on the basis of the Geneva Conventions, and the definition of war

crimes in the Statutes of the ICC, the ICTY and the ICTR.

The failure of the army and the detention authorities in Israel to notify human rights organizations and

the families and attorneys of the detainees of their detention and place of detention over a significant

period, beginning with the first detentions on January 2, 2009 and until January 11, 2009, constitutes a

grave infringement of the basic rights of the detainees, as well as a breach of the states obligation to

pass on such information. The State of Israel must abide by the domestic and international law requiring

the conveying of messages without delay on the detention of individuals and their location. It must do

so both upon its own initiative and at the request of any authorized person, including a detainees

relative, attorney, the ICRC, the Public Defenders Office or a human rights organization, no matter the

circumstances of the detention. The lack of information regarding the detainees and their detention

location and conditions constitutes an opening for violence and ill-treatment, which at times

deteriorated to torture by Israeli soldiers, GSS interrogators and Israel Prison Service guards. All of these

acts constitute grave violations of Israeli and international law, and were made possible by exploiting

the state of war and the lack of judicial review of the armys actions.

32See the Goldstone Report, note 4 above, Paragraphs 1106-1032 and 1925-1926. Despite the armys denial of

having used Palestinian civilians as human shields, on March 11, 2010 the Military Advocate General filed an

indictment against two soldiers accusing them of using Palestinians as human shields during Operation Cast

Lead. The two soldiers from the Givati Brigade were charged with violating their authority and for inappropriate

conduct, on suspicion of forcing a 9 year-old Palestinian boy to open several bags suspected of containing

explosive devices. See article on the subject from March 11, 2010 on the Haaretz website:

http://www.haaretz.com/news/two-idf-soldiers-charged-with-using-9-year-old-human-shield-in-gaza-war-

1.264652.33

The states response to the Goldstone Report from January 2010. The response can be downloaded at the

following link: http://www.law.idf.il/SIP_STORAGE/files/3/713.pdf.


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2. Conditions under Detention and Imprisonment

I was held inside the crater together with some 70 other civilians, most of whom I know

from the neighborhood. During this period I was not interrogated and to the best of my

knowledge no one else was interrogated either. On Wednesday [apparently January 7,

2009] they put everyone on a truck, covered our eyes and we drove, with a tank in front

of us, to an army post near the sea which was built after the Disengagement. The post

was five kilometers from the place in which I was held. My son Hussein was left in the

crater and I do not know what happened to him.34

This chapter will examine the physical conditions under which detainees were held over the course of

the operation, from the moment of their arrest or detention by the army until their transfer to the

custody of the Israel Prison Service (IPS). Under international law, from the moment of their detention

by the armed forces, the residents became entitled to protections under international humanitarian law

(IHL) and international human rights law (IHRL). The protections provided by international law to people

deprived of their liberty whatever the circumstances can be summarized in the short, concise words

of the Geneva Conventions: They shall at all times be humanely treated.35 These rules have also been

anchored in Israeli law.

The obligation to act humanely toward those deprived of their liberty has been recognized in manyinternational human rights treaties and conventions. Article 10(1) of the International Covenant on Civil

and Political Rights (ICCPR) states: All persons deprived of their liberty shall be treated with humanity

and with respect for the inherent dignity of the human person. Israel ratified this treaty and is

obligated to fulfill its provisions. In addition, international law experts view Article 10 as a part of

customary international law. The Israeli Supreme Court ruled that this article is in keeping with Basic

Law: Human Dignity and Liberty in that it protects the dignity of all individuals, including the detainee.36

This obligation is also anchored in Article 16(1) of the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (hereinafter: CAT), which Israel has also ratified and is

also obligated to uphold.

34From the affidavit of Sameer Attar taken on November 14, 2009, in Ketziot Prison. Mr. Sameer Attar was

detained on Monday morning January 5, 2009, together with his minor son Hussein and many other men from his

neighborhood. At the time of the taking of his affidavit Mr. Attar was being held in Ketziot Prison under the

Incarceration of Unlawful Combatants Law. Mr. Attar has since been released.35

See Article 27 of the Fourth Geneva Convention. See also Article 3(1) common to all four Geneva conventions;

Article 75(1) of the Protocol I Additional to the Geneva Conventions (1977) dealing with wars between states; and

Article 4(1) of the Protocol II Additional to the Geneva Conventions (1977) dealing with wars within states.36

HCJ 5591/02 Yassin v Commander of Ketziot Military Camp, Piskei Din, 57(1) 403, (2003) (in Hebrew) on p. 412.


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The first article of the Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment, adopted by the UN General Assembly with regards to detainees and prisoners,37 is

almost identical to the wording of Article 10(1) of the ICCPR noted above. These principles were also

adopted by the Israeli Supreme Court, which ruled that, even if they do not have direct application to

Israeli domestic law, they nevertheless determine criteria by which a reasonable and proportionate

chain of command must function.38 The adoption of the rationale behind these same principles was

proven in a long list of court decisions.39

More specific criteria for protecting the dignity of detainees and prisoners were determined by the

Minimum Standards for Treatment of Prisoners. These were adopted in 1955 by the First United Nations

Congress on the Prevention of Crime and the Treatment of Offenders, and by the United Nations in both

1957 and 1977.40

A further legal source dictating a comprehensive agreement on conditions of detention, most relevant

to the case of detainees from the Gaza Strip, is the Fourth Geneva Convention. The Geneva Convention

requires that detention conditions must ensure the hygiene and the health of the detainees, including

sufficient protection from weather conditions; that the place of detention be adequately heated and lit;

that sleeping quarters be spacious and well-ventilated and detainees be given suitable bedding and

sufficient blankets while taking into account the climate, the detainees age and state of health. Further

there is an obligation to provide daily food and water in sufficient quantity, quality and variety, clean

and hygienic toilets and sufficient water and soap for daily washing and laundry and bathing, and

provision of time for washing.41 In this context the application of the Fourth Geneva Convention is not

considered controversial, as the instructions are of a humanitarian nature and Israel sees itself as

obligated to enforce them.42

37Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Adopted by

General Assembly resolution 43/173 of 9 December 1988.38

See Yassin case, note 36 above; p. 413. See also HCJ 3278/02 HaMoked Centre for Defense of the Individual v

IDF Commander in West Bank, Piskei Din 57(1) 385 (2002) (in Hebrew) (hereinafter: HaMoked Case).39

Crim App 7440/97 State of Israel v Golan, Piskei Din 52(1) 1 (1998) (in Hebrew); HCJL.A. 6561/97 The State of

Israel v Mendelson, Piskei Din 52(5) 849 (2000) (in Hebrew); HCJL.A. 823/96 Vanunu v The Prison Service, Piskei

Din 51(2) 873 (1997) (in Hebrew); HCJ 221/80 Darvish v The Prison Service, Piskei DIn 35(1) 536 (1980) (in Hebrew)

(hereinafter: Darvish case); HCJ 540/84, Yusuf v Director, Central Prison of Judea and Samaria, Piskei Din 40(1)

567, 573 (1986) (in Hebrew); HCJ 253/88 Sajadia v The Minister of Defense, Piskei Din 42(3) 801 (1998) (in

Hebrew) (hereinafter : Sajadia case); HCJ 355/79 Katlan v The Prison Service, Piskei Din 34(3) 294 (1980) (in

Hebrew); PPA 4/82 State of Israel v Tamir, Piskei Din 37(3) 201 (1983) (in Hebrew); HCJ 2245/06 Member of

Knesset Dobrin v Israel Prison Service, Tak-El 2006(2) 3564, 3573 (2006) (in Hebrew); HCJ 4634/04 Physicians for

Human Rights v Internal Secuirty Minister, Tak-El 2007(1) 1999 (2007) (in Hebrew) (hereinafter: Physicians for

Human Rights case); HCJ 337/84 Hukma v Minister of Interior, Piskei Din 38(2) 826 (1984) (in Hebrew); HCJ

7837/04 Borgall v Prison Service, Piskei Din 59(3) 97 (2004) (in Hebrew); HCJ 2605/05 The Human Rights Section

of the Academic College in Ramat-Gan v Minister of Finance, Tak-El 2009(4), 2405 (2009) (in Hebrew).40

Standard Minimum Rules for the Treatment of Prisoners, see note 7 above.41

See Articles 85-90 of the Fourth Geneva Convention.42

See the comments of Chief Justice Barak (ret.) on this subject in the HaMoked Case, note 38 above, pp. 396-7. In

this context, the court further ruled that these instructions have a substantial influence on Israels obligations

toward those detainees held for interrogation purposes, and not only those being detained.


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Israeli law includes comprehensive guidelines for minimum conditions under which a prisoner or

detainee may be held in Israeli detention centers, provided by both primary legislation and secondary

legislation. The general guidelines state that, Detainee must be held under appropriate conditions that

do not harm his Health and dignity.43 Article 9 of the Detentions Law and the regulations issued under

this law, were legislated on the basis of a need to enforce, by means of a detailed law, the authorities

obligation to protect the dignity of the detainee and to ensure that the detainee is held in appropriate

conditions, which will guarantee his bodily integrity, spirit and dignity. The aforementioned article

dictates the rights of the detainee to sanitary detention conditions, to a mattress, a bed, food, light and

ventilation, to a daily walk, to communicate with visitors, to send letters and to other basic conditions.

Israeli law differentiates, and in practice discriminates, between the physical detention conditions of

detainees suspected of security offenses and regular detainees. This differentiation is anchored in

Rule 22 of the Detention Regulations. According to this rule, certain rights will not be provided to

detainees suspected of security offenses and other rights will be respected only partially. For instance,

the right to a daily walk, to a bed,44 to a desk and chair, access to reading material, access to a telephone

and to receive gifts or other items from family members during interrogation, are not applied to

detainees categorized as security detainees. To give a simple and clear example, a security detainees

cell must be painted once a year whereas for other detainees this must be done twice a year.45

International law regarding detainees and prisoners should be incorporated into the Israeli domestic

legal system without any connection to the detainees status, category or the character of the acts of

which they are suspected.46 Even those suspected of the most serious crimes are entitled to be detained

under minimal humane conditions respecting their basic human needs.47 Israeli court rulings emphasize

the need to protect human dignity due to the sensitivity of their status and the presumption of

innocence they are entitled to.48

Thus, Israeli domestic law and international law require that detainees must be treated humanely and

with respect for their human dignity. From this right follows the authorities obligation to hold an

individual under conditions which will enable the physical, spiritual and cultural needs of his existence.

With these rights are counted not only the bare right to eating, drinking and sleeping needed to sustain

the body in a physical sense, but also the minimal human order of a cultural nature by which these

43S. 9 (a) of the Criminal Procedure (Enforcement Powers - Detention), 1996, 1592 (hereinafter: "Detention Law").

Deatailed Regulations found in Criminal Procedure (Enforcement Powers - Detention) (Conditions in Detention),

1997, Compendium of Regulations 5829 ("the Arrest Regulations ")44

On the right to a bed see also: Article 19 of the Minimum Standards for Treatment of Prisoners, note 18 above;

Physicians for Human Rights case, note 39 above; HCJ 5678/02 Physicians for Human Rights v Internal Security

Minister, Tak-El 2003(2) 2647 (2003) (in Hebrew); HCJ 7082/97, HCJ 3910/99 Public Committee Against Torture in

Israel (the petitioner in HCJ 7082/97 and HCJ 3910/99) v Internal Security Minister (decision delivered February

12, 2007); See also, Darvish case, note 39 above.45

See Adalahs letters from April 19, 2009 and September 11, 2009, demanding that this rule be cancelled.46

In the Yassin case, the court ruled that security considerations which brought about the detention of an

individual do not justify his being held in unsuitable conditions. See: Yassin case, note 36 above, p. 411.47

See also Article 11(1) of the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights

and the Fight Against Terrorism, which state: A person deprived of his/her liberty for terrorist activities must in all

circumstances be treated with due respect for human dignity.48

CrimApp 3734/92 State of Israel v Azazmi, Piskei Din 46(5) 72, 79 (1992) (in Hebrew) (hereinafter: Azazmi case).


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needs are enjoyed, in order to sustain the dignity of the individual in the spiritual sense.49 These

general guidelines must be carried out with constant vigilance that at least the minimum requirements

are fulfilled.50 Providing a bed for the detainee, along with a sufficient quantity and quality of food and

provision of the means by which to uphold personal hygiene, make up a minimum required threshold,

which must not be digressed.

Furthermore, our experience and the testimonies that will be presented in this chapter show that

detention conditions during the period of interrogation have for some time served as an interrogation

method, in and of itself, albeit an illegal one (at least according to international law), intended to put

psychological pressure on the detainee in order to break his spirit and force him to cooperate with the

interrogators. Such a means of interrogation constitutes cruel, inhuman and degrading treatment,

prohibited by both the laws of war and by human rights law. In certain cases this interrogation method

is combined with other methods, and together these constitute torture as defined in Article 1 of the

Convention Against Torture.

The following survey of the physical conditions of detention and imprisonment to which Palestinian

detainees were subjected during Cast Lead will deal with both the conditions under which they were

held in the territory of the Gaza Strip and those conditions in detention centers in Israel. There is no

doubt that international law applies to all detainees without exception, and that Israel is obligated to

uphold it. Our view is that the Basic Law: Human Dignity and Liberty also applies to the detention

conditions of detainees within the Gaza Strip just as they do in Israel, because the detaining powers are

the Israeli security forces and army. In any case, although the Israeli Supreme Court has yet to rule on

the applicability of basic laws to the detention conditions of detainees in occupied territories or in a

state of war, the courts opinion is that the principles and rules of administrative law, and with them the

criteria for reasonableness and proportionality, do apply in occupied territory.51

The testimonies and affidavits taken by PCATI and Adalah show that from the moment of their arrest

and detention the detainees were held in disgraceful and inhuman conditions - from their detention in

the Gaza Strip, to their time in temporary military facilities for the purpose of absorption, and continuing

in their cells in IPS detention centers in Israel. The following section concisely describes the illegal

physical conditions under which they were held.

A. Conditions of Detainees in the Gaza Strip

The testimonies collected show that many detainees, including minors, were taken from their homes

and held in large pits, 2-3 meters deep, unsheltered from the bitter cold for days at a time. Each pit held

some 60 or 70 detainees; they were exposed to the rough weather conditions and their hands were

shackled and some had their eyes covered. The detainees were not allowed to leave these pits even to

49Azazmi case, see note 48 above, p. 85.

50See the comments of former Chief Justice Barak on this subject in the HaMoked Case, note 38 above, p. 396.

51See HCJ 2150/07 Abu Safiya v Minister of Defense (decision delivered December 29, 2009), paragraph 14 of

Justice Fogelmans ruling. The courts official English synopsis may be viewed at its website:

http://www.court.gov.il.


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relieve themselves. The sanitary conditions were abysmal, the amount of food and blankets negligible.

Many detainees testified to having been hungry, thirsty and cold. Further, detainees were held adjacent

to combat zones, endangering their lives.52 At least one detainee was held shackled, his eyes covered, in

the shower for two days.53 The detainees descriptions of their detention conditions indicate that the

security forces contravened their basic obligation towards the detainees to protect their dignity and to

prevent their humiliation and debasement, as required by Israeli law, IHL and IHRL.

On January 28, 2009 PCATI, HaMoked and ACRI petitioned the CMAG and the Attorney General

demanding,54 among other things, an investigation of the conditions under which detainees had been

held in the Gaza Strip. To date, about a year and a half since the complaint was filed, the CMAG has

failed to provide any response. The following testimonies by some of the detainees describe the

conditions within the pits:

Testimony of Sameer Ali Muhammad Attar

On the morning of Monday January 5, 2009, Sammer Attar (born 1971), a resident of the Al Atatra

neighborhood, was arrested by the army. Such is his description of the conditions under which he was

held with his minor son (14) for two days adjacent to the combat zone, inside one of the pits:

We arrived at the place where the tanks were posted, and at that moment the tanks

were firing shells on Beit Lahiya. In the place where the tanks were, the Israeli army had

previously prepared a large area, some two dunams, in which it had dug out a crater

with a dirt wall of some two meters. The soldiers ordered us to climb down the dirt walls

and into the crater while shackled, and we were held there under the bare sky for two

days, until Wednesday afternoon [...] The soldiers held us there exposed to the bitter cold

and only on Tuesday morning gave each two of us one blanket. During the whole period

we were shackled and we slept on the dirt. The soldiers would provide us with food once

or twice a day; as for water, we would ask for it and sometimes they would bring us

some, in delay. There were no toilets and they did not provide us with hygienic products

like toilet paper. I was held in the crater with some 70 other civilians, most of whom I

know from the neighborhood.55

Testimony of Hamad Adnan Rajib Attar

Hamad Adnan Rajib Attar, born 1983, is a resident of Beit Lahiya. On January 4, 2009, in the early

morning, shooting soldiers burst into his home and arrested him together with the other men in thehouse. They were removed from the house with hands shackled and eyes covered. Hamad describes in

his affidavit how, after spending a night in one of the houses, he was held in a pit and from there

52Supported, among other affidavits, by those of Raj Misbah Abdullah Abed Rabbo, from February 23, 2009; N.P.A.

from February 26, 2009; and Sameer Ali Muhammad Attar.53

From the complaint of Muhammad Khir Izzat Kisab, filed on January 19, 2009 with the CMAG.54

The petition was filed in the name of these three human rights organizations as well as Btselem, Yesh Din,

Adalah and Physicians for Human Rights-Israel.55

From the affidavit Sameer Attar, taken on January 14, 2009 in Ketziot Prison. On the subject of the pits, see:

Amira Hass, Cast Lead: Gazans detained in giant pit during Cast Lead August 14, 2009: http://www.israeli-

occupation.org/2009-08-14/gazans-detained-in-giant-pit-during-cast-lead/ (hereinafter: Amira Hass).


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transferred to one of the trucks, where he spent a full day shackled with his eyes covered. He was

subsequently moved to another one of the pits. His testimony follows:

At night we were put in one of the rooms of the house, about 12 square meters I would

guess, and they held us there together with some 50 other civilians. During the night we

heard bombardment and firing in the area. The next day at around 16:00, they took us

to an open space near the house, some 100 meters away, and there they put us into a

large pit with a wall of dirt around us, in the place where the tanks were positioned.

There they separated us into two groups. One group, of about 30 people, was loaded

onto a truck. It was very cold and we were forced to sleep in the truck, while I was

shackled and my eyes were covered. The other group was left in the pit. The soldiers

distributed some blankets to the civilians, but not enough for everyone, maybe one

blanket for every two detainees. We were held in the truck until 12:30 the next day. If

one of the detainees had to relieve themselves, he would do so behind the truck. The

soldiers forbade us to talk, and whoever did was struck.56

Two nights later, Mr. Attar was transferred to a second pit, which he describes in what follows:

When we arrived in the pit they removed the handcuffs and took off the blindfolds, but

about two hours later they returned and shackled us and covered our eyes again. We

asked for blankets but they did not bring any, and I was unable to sleep the whole night

because of the cold and the difficult conditions. We were also not provided with food.57

The humiliating conditions in which the detainees were held continued after they were removed from

the pits and moved to other places. There, according to the detainees, the soldiers carried out a group

strip-search, forcing the detainees to strip to their undergarments under the open sky, on rough gravel

and in the bitter cold. The severe descriptions above were repeated in almost all the testimonies taken

from the detainees who spent time in the pits. Some testified to having been held in the pits for no

more than several hours and to being transferred from one pit to another;58 others were held for more

than two full days in the conditions described above and also told of soldier violence and curses and

coarse language.59

B. Conditions in Military Detention Facilities in Israel

Most of the detainees interviewed by Adalah and PCATI spent time initially in the Gaza Strip in the

custody of the army and after some time were transferred to the army facilities Zikim and Sde

56From the affidavit of Hamad Attar, taken on January 14, 2009 in Ketziot Prison.

57See note 56.

58From the affidavit of Khalil Mutzbah Attar, taken on January 14, 2009 in Ketziot Prison.

59From the affidavits of Husam Attar, taken on March 19, 2009 and February 23, 2009. See also: Affidavit of

Ahmad Shehade Abu Salah, taken on January 14, 2009 in Ketziot Prison and the affidavits of N.A., taken by on

February 26, 2009 and April 27, 2009. This detainee complained of violence against him by one of the soldiers after

he asked to be released from his handcuffs due to pain, while he was inside one of the pits.


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Teiman, the latter of which was declared on January 1, 2009 as the place of imprisonment for unlawful

combatants.60 A reading of the testimonies of detainees held in military detention facilities shows that

their basic rights regarding physical detention conditions were infringed upon in these facilities as well.

The detainees were checked by medical practitioners and photographed upon entering the military

facilities. Many complained of the cramped conditions, the quantity of food, the thin mattresses and the

fact that the thin blankets did not protect them from the bitter cold which prevailed during their

detention there. When the detainees were allowed access to the toilet, they were shackled.61 Others

testified to having been transferred to dark trailers with no showers or toilets and without mattresses or

blankets.62 Some of them told of violence and other illegal interrogation methods used against them.63

Testimony of Muhammad Khir Izzat Kisab:

Mr. Muhammad Kisab was detained on January 8, 2009 and was subjected to ill- treatment by Israeli

soldiers, held for two days in the shower in his home. Then apparently he was transferred to thedetention facility at Sde Teiman. He describes the physical conditions there as follows:

After that they transferred us to a military camp near the border. I heard the soldiers

say that it is called Givati. An hour later they put us on a bus and we walked for 40

minutes to a place where I heard the sound of planes. They put us on a gravel floor, my

father, my two brothers and I. A medical checkup was done on us, and then we were

moved to a trailer made of canvas without mattresses or blankets. The room was closed.

It had one ventilation hole on the roof and it was completely dark. There was no toilet.64

On January 19, 2009 PCATI petitioned the CMAG in the name of Mr. Muhammad Kisab, demanding the

opening of a criminal investigation against the officers and soldiers on suspicion of harsh violence during

the arrest. On February 22, 2009 the Operations Division of MAG confirmed receiving the complaint. To

date, no information has been received regarding the opening of an investigation or its conclusions.

The following is Moussa Muhammad Wahadans description of the cell in which he was held in the

Zikim Military Camp:

At Zikim I was held for four days in a small cell, a trailer, of about 1.5 to 2 meters. In

the cell there was no toilet or shower and the soldiers would take me out 3 times a day

to use the toilet, after my asking them several times. In addition there was no running

water in the cell and the soldiers provided me with a bottle. The trailer was paintedwhite and was completely empty. Only after two days did the soldiers provide me with a

5-centimeter thick mattress and one good blanket. For the first two days I slept on the

60See: Imprisonment Order for Unlawful Combatants (Place of Imprisonment, 2009 in Hebrew).

61From the affidavits of M.A., taken on February 23, 2009 and March 25, 2009 in Shikme Prison.

62See excerpts of the affidavit of Muhammad Azat Kasab below. An identical description of a trailer was presented

by the detainee Sameer Attar in his affidavit taken on January 14, 2009 in Ketziot Prison.63

See Chapter 3, which discusses the illegal interrogation methods and torture to which the detainees were

subjected.64

Translation of affidavit in Arabic given by Mr. Kisab to Al Mezan Center for Human Rights on January 12, 2009, at

the Magistrates Court in Beer Sheva.


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floor with no covers and I suffered from the bitter cold. The soldiers did not provide me

with warm clothes. At Zikim I was interrogated only once.65

The testimony of Husam Attar, a farmer and resident of Beit Lahiya, elaborates on the conditions of

detention at Zikim:

The next day, around 9, I was taken in a truck to a military facility, the Zikim military

camp, as I learned from the sign in Hebrew and Arabic there. When they took us off the

truck the soldiers began to push us, and then they took us to a gravel area and sat us

down. We spent one night there, our hands shackled behind our backs and our eyes

covered. At night it rained for about half an hour, but we were not brought blankets.66

The conditions prevailing in the military facilities were far from meeting the minimum standards for the

protection of the health and dignity of the detainees. The temporary nature of the facilities, set up ad-hoc, for the absorption of the hundreds detained during the operation, in no way justifies the degrading

conditions under which they were held. In the past the Israeli Supreme Court has addressed the

detention conditions of detainees in military camps set up temporarily in order to absorb them during

attacks and military operations. In the Sajadia case, former Chief Justice Shamgar ruled that the security

need to imprison many individuals simultaneously can explain the existence of extreme crowding at the

beginning of the wave of detentions.67 But in a later ruling former Chief Justice Barak ruled that even in

emergencies, detention facilities must be set up which meet the international criteria for minimum

detention conditions.68

C. Conditions of the Detainees in Interrogation and Detention Facilities

Humiliating physical conditions prevailed also in Israel Prison Service (IPS) detention centers to which

the detainees were transferred from the military facilities. The detainees were interrogated in these

detention centers by the GSS. During breaks between interrogations and after their conclusion, the

detainees were transferred to narrow cells used for solitary confinement. The detainees reported these

small cells as foul smelling, with thin mattresses, a general lack of hygiene, dark and rough walls and

weak, yellowish lighting 24 hours a day which interrupted and even prevented sleep.

Other detainees testified that at some point their conditions were greatly improved as they were moved

to spacious rooms and removed from solitary confinement. In retrospect they realized that this

improvement was intended only to encourage their giving confessions to collaborators, who were with

them in the new cells.

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

66From the affidavit of Humas Attar, taken on February 23,2009.

67Sajadia case, see note 39 above, p. 823.

68See the comments of former Chief Justice Barak in the Hamoked case, note 38 above, p. 400. See also his

comments in the Yassin case, note 36 above, p. 415.


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The detainee Wael Atamneh told of his being held in a detention center, apparently Ketziot, in a small,

narrow cell about two meters wide. Over a period of three days he was forced to sleep on a metal bed

with no mattress or blanket to protect him from the cold. The mattress provided him later was torn and

uncovered. His cell did not contain a toilet; he was allowed access to the toilet only once a day. His first

shower was after ten days of detention, and only then was he allowed to take a walk in the courtyard.69

Imad Yussuf Hamad describes in his affidavit the rough conditions in his holding cell at Shikme Prison, to

which he was transferred on January 5, 2009 after being detained by the army. He says he was held in a

small isolation cell (1.3 1.7 meters) with dark walls and a bulb emitting weak, yellow light. The cell

contained a sink and toilet with no separation. The mattress provided to him was very thin, old and foul

smelling. Imad Hamad was held in solitary confinement for the bulk of his time in Shikme, and was

interrogated 18 hours a day by GSS interrogators during his first three days of detention there. Eight

days after arriving in Shikme, he was told that his interrogation was finished and he was transferred to

Ketziot, where his detention conditions improved greatly. In retrospect he realized that the

improvement was actually a method of interrogation, as collaborators had been placed in his new cell.70

N.A. was transferred several times between different prisons, apparently in an attempt to elicit a

confession from him through the use of collaborators. At a certain point, after being interrogated at

Zikim Military Camp, at the Sde Teiman Base and at Shikme Prison, he was transferred to Ketziot. Here is

his description of the isolation cell in which he was held at Shikme:

The isolation cell was 1.20 by 1.80 meters, the walls gray, two white lights shining 24

hours a day and leaving no possibility of knowing whether it is night or day. There was a

fan which pushed in a lot of dirt. There was a lot of dirt in my nose. There was a toiletwith no shower (a jora) and a small sink for washing the hands.

71

PCATI and Adalah heard identical descriptions from other detainees. They complained of sustained

solitary confinement, the complete cutting off from the outside world including from attorneys or family

members, the stench in the cells, thin and foul smelling mattresses, sleep deprivation, prevention of

washing and the failure to provide basic personal hygiene materials, prevention of a daily walk or even

removal from the cell, and the continuous dim lighting and more.72 The testimonies collected from the

detainees show that even the basic obligations were not met by the interrogation and security

authorities who held them, despite the fact that these requirements are anchored in the Prison

Ordinance (revised 1971). The legitimization of worsening detention conditions of those suspected of

security violations under regulation 22, can be seen as a undermining the basic rights and a de-facto

validation of using the worsening of detention conditions [as a sanction] in an arbitrary and illegal

manner.

69From the affidavit of Wael Atamneh, taken on April 27, 2009 in Ohalei Keidar Prison.

70From the affidavit of Imad Hamad, taken on April 1, 2009 in Shikme Prison.

71From the affidavit of N.A., taken on February 26, 2009 in Shikme Prison.

72Identical testimonies concerning the conditions of confinement, with minor differences, were given by: M.A.,

Moussa Muhammad Wahadan, Hammad Faraj Abed Rabbo, Hamad Adnan Rajeb Attar, S.C., A.C., and others.


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The detainees were held in these conditions while being subjected to long, exhausting and intensive

interrogations, which in some cases, included illegal methods, including those constituting torture.

These acts will be detailed in the following chapter, which shows how solitary confinement in and of

itself constituted an interrogation method intended to effect the resolve and spirit of the detainee, as

the interrogators became the only permitted contact with other human beings. The psychological

pressure placed upon the detainee, the weakening of his body, the lack of interaction with others, the

sensory deprivation caused by his inability to keep track of time and disconnection from the human and

social stimuli to which he is accustomed as a human being all of these infringe upon the detainees

right to humane treatment. 73

73On the psychological consequences of harsh physical conditions in detention on the detainee, see: Btselem and

HaMoked, Absolute Prohibtion: The Torture and Ill-Treatment of Palestinian Detainees 41 (May 2007)

www.btselem.org/Download/200705_Utterly_Forbidden_eng.doc; Physicians for Human Rights and A-Damir,

The Sounds of Silence: Isolation and Solitary Confinement of Palestinian Prisoners in Israeli Detention (October

2008)

http://www.phr.org.il/default.asp?PageID=119&ItemID=190.


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3. Torture and Ill-treatment of Detainees

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

Article 5, The Universal Declaration of Human Rights.

Torture and cruel, inhuman or degrading treatment or punishment of any individual is absolutely

forbidden under international law and under Israeli law as well. According to international law, both IHL

and IHRL, the prohibition on torture and ill-treatment is absolute. This prohibition is anchored in a long

list of international human rights treaties and conventions, which Israel has ratified,74 and constitutes an

unconditional, obligatory provision of international law.75 The complete prohibition on torture, ill-

treatment, and cruel, inhuman or degrading treatment or punishment applies at all times: in times of

war as in times of peace.76 Torture and certain forms of ill-treatment may also constitute crimes against

humanity and war crimes in accordance with the Rome Statute.77

The complete prohibition on the use of torture and ill-treatment is cited in the Israeli Supreme Court

ruling in HCJ 5100/94 Public Committee against Torture in Israel v Government of Israel , although this

decision created an opening for the use of moderate physical interrogation methods in situations

described as ticking bombs.78 The prohibition on torture is not, however, anchored in Israeli

74The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (opened for

signature in 1984) (hereinafter: The Convention Against Torture); Articles 10-17 of the International Covenant onCivil and Political Rights (opened for signature in 1966); Article 5 of the Universal Declaration of Human Rights.

Torture also constitutes a grave breach of the laws of war. See for example Article 130 of the Third Geneva

Convention, note 17 above and Article 147 of the Fourth Geneva Convention, note 16 above.75

See for example the rulings of international and regional courts: Prosecutor v. Anto Furundzija, Case No. IT-95-

17/1-T, ICTY Trial Chamber II, judgment of 10 December 1998, paras. 146, 153-7; Prosecutor v. Zejnil Delalic et al.,

Case IT-96-21-T, ICTY Trial Camber II, Judgement of 16 November 1998, para. 454; Prosecutor v. Kunarac et al.,

ICTY Case No. IT-96-23 and IT-96-23/1, Trial Chamber II, Jud

Documents

Exposed-Treatment of Detainees Cast Lead_June 2010