Joint Submission by Human Rights Watch and Lawyers for Justice to Committee Against Torture on Palestine

This memorandum provides an overview of several of Human Rights Watch and Lawyers for Justice’s central concerns with respect to torture and other cruel, inhuman, or degrading treatment or punishment and impunity for these grave abuses by government authorities in Palestine, submitted to the Committee Against Torture in advance of its first review of the State of Palestine in July 2022. This submission draws on years of research and documentation by Human Rights Watch and Lawyers for Justice, a legal group focused on human rights issues related to detention by Palestinian authorities in the Occupied Palestinian Territory. We hope it will inform the Committee Against Torture’s assessment of compliance with the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) in Palestine.

Introduction

Palestine acceded to the CAT in 2014 and to the Optional Protocol to CAT in 2017 without reservation. Palestinian accession to these instruments represents a commitment by its authorities to respect, protect, and fulfill rights, including the right to be free from torture and other prohibited ill-treatment.

The treaties apply to the full territory of the state of Palestine, encompassing both the West Bank, including East Jerusalem, and Gaza. We urge the Committee in its review to consider the current reality of governmental authority in this territory, including the Palestinian Authority (PA) in the areas where it manages affairs and Hamas authorities inside Gaza, and Israel as the occupying power, and apply the Convention in a way that maximizes its use to combat torture and prohibited ill-treatment throughout the territory of the State of Palestine. While Hamas authorities did not participate in the ratification process of the CAT and its Optional Protocol, the Hamas-led Interior Ministry in Gaza said in an April 2018 letter to Human Rights Watch that it considered itself bound by the Convention Against Torture,[1] and has also publicly set out a commitment to human rights and international law.[2]

This submission covers Human Rights Watch and Lawyers for Justice research on these issues since Palestine’s accession to the CAT in 2014. The submission focuses on relevant policies and practices by the PA in the parts of the West Bank where it manages affairs and the de facto Hamas-led government in Gaza, though it also addresses abuses by the Israeli occupation authorities.

Right to be Free from Torture (Art 1, 2, 4)

Years of Human Rights Watch and Lawyers for Justice research indicate that the PA and Hamas authorities routinely mistreat and torture Palestinians in detentions. A range of security services, including Hamas’ Internal Security and the PA’s Intelligence Services, Preventive Security and the Joint Security Committee, as well as police forces in Gaza and the West Bank, have used tactics that include taunting, threats of violence, use of solitary confinement, beatings, including lashing and whipping of the feet of detainees, and forcing detainees into painful stress positions for prolonged periods, including using cables or ropes to hoist up arms behind the back. Human Rights Watch and Lawyers for Justice’s research indicate that security forces mistreat and torture both in order to punish and intimidate critics and opponents, including those detained for social media posts, critical journalism, or membership in rival political movement or student groups, and also to elicit confessions, including from those detained on drug or other common criminal charges.[3]

Human Rights Watch found that the habitual, deliberate, widely known use of torture by Palestinian authorities in the West Bank and in Gaza, and the fact that similar tactics have been used over the years with no action taken by senior officials in either authority to stop these abuses, make these practices systematic. They also indicate that these practices amount to government policy and may amount to a crime against humanity.[4]

Human Rights Watch’s most comprehensive report on these issues, the 2018 “Two Authorities, One Way and Zero Dissent,” involved 147 interviews conducted over two years.[5] The PA and Hamas both denied practicing torture, insisting that abuses amount to no more than isolated cases that are investigated and for which wrongdoers are held to account. The evidence that Human Rights Watch collected contradicts these claims.[6]

The report found that the PA and Hamas both commonly use positional abuse or shabeh, where officers placed detainees in painful stress positions for many hours at a time, using a mix of techniques that often left little or no trace on the body. This tactic, which parallels years of Israeli practice against Palestinians, can amount to torture when it constitutes deliberate infliction of severe harm.[7]

In the West Bank, the report found that the Intelligence Services, Preventive Security, and Joint Security Committee often practice shabeh at their detention facilities in Jericho, where they regularly send political detainees. Alaa Zaqeq, detained in April 2017 because of his university activism with the Hamas-affiliated Islamic Bloc, said that Intelligence Services officers forced him to stand for stretches of time with his legs spread out in a half squat, and later, on his tiptoes with a rope pulling his hands back. He said an interrogator known as the “Juicer” told him he would “leave this place in a wheelchair,” and, “We are going to make you pay the price for the coup in Gaza.” At the same detention center two months prior, journalist Sami As-Sai said officers greeted him by telling him, “We had people who entered here with muscles and left without any.” They tied his hands by rope to the ceiling of an interrogation room and slowly pulled the rope to apply pressure to his arms, which caused him to feel so much pain that he had to ask an officer to pull his pants up after he used the toilet because he could not do it himself.[8]

In Gaza, the report also documented how Hamas’ Internal Security officers often put detainees in a room called the bus, where they force detainees to stand or sit in a small child’s chair for hours or even days, with few breaks. A PA civil servant, arrested after a friend tagged him in a Facebook post calling for protests around the electricity crisis in Gaza in February 2017, spent most of the five days he spent in the Internal Security’s Gaza City detention center subjected to positional abuse in the bus, causing him to feel “severe pain in my kidneys and spine” and as if his neck would “break” and his “body is tearing up inside.” Two journalists told Human Rights Watch that they spent their first month in detention in June 2017 in the bus, where security personnel forced them to alternate between standing and in a small chair designed for children.[9] Both men said that security forces repeatedly whipped them on their hands and feet with a cable.[10]

Palestinian forces in both the West Bank and Gaza also regularly use threats of violence, taunts, solitary confinement, and beatings, including lashing and whipping of the feet of detainees, to elicit confessions, punish, and intimidate activists, the report found. When Fawaz al-Herbawi, a member of the Islamist al-Tahrir Party, refused to answer questions during an interrogation in early 2017, a PA Preventive Security officer threatened to break his legs. Officers at the PA Intelligence Services’ detention facility in Jericho whipped the feet of Fares Jbour, an electrical engineering student in Hebron who took part in a book drive organized by the Hamas-affiliated Islamic Bloc, and hit him on his side with a hose, while subjecting him to shabeh, and told him, “If you did not confess in Hebron, you will confess here.” In a subsequent session, as officers alternated between kicking and hitting him with a baton, they told him, “You are affiliated with Hamas … a day will come for you. If you do not talk, you will see something you have never seen before,” and put him in a solitary cell, cut off from other inmates for a week.[11]

In Gaza, Hamas forces told Fatah activist Yaser Weshah in early 2017, “Next time, I will cause you a permanent disability,” and put him in the bus for three days. A former member of a PA security service in Gaza, Abdel Basset Amoom, said that, in April 2016, Hamas security officers whipped his feet and his chest with a cable until he felt he “was losing consciousness.” In September 2016, officers told detained journalist Muhammad Othman that they will “end [his] journalist future” if he “criticize[d] the government or the security apparatus” and placed him in the bus. Two months after his release, he left Gaza as a result of the harassment and told Human Rights Watch in September 2016 that he does not intend to return.[12]

Authorities also regularly use similar tactics, sometimes with a greater degree of intensity, for those detained on drug or other criminal charges in order to obtain confessions, according to testimonies in the 2018 Human Rights Watch report. In the West Bank, a then-17-year-old boy said security forces detained him for a week and repeatedly tortured him in April 2017. Police shackled his hands behind his back and slowly raised them and hit his feet and legs repeatedly with a baton. When he could no longer bear the pain, he confessed to stealing some agricultural equipment. Sarie Samandar, a Christian Jerusalemite detained after a June 2017 street fight, said PA police called him a “Christian pig,” and that, “Daesh (Islamic State or ISIS) needs to come for you,” and repeatedly punched, kicked, and slammed his body against the wall.[13]

In Gaza, Emad al-Shaer, a farmer detained on drug possession charges, said that Hamas police attached his hands by cable to the ceiling and feet to the window and left him hanging while repeatedly whipping his feet and body with a cable, telling him, “You will die here if you do not speak.” He confessed. Despite only a day in detention, he spent five days in hospitals drifting into and out of consciousness and receiving treatment for injuries linked to his treatment in custody, including coughing up blood, kidney failure, and blockage of a major blood vessel, according to medical reports and photos reviewed by Human Rights Watch.[14]

In the West Bank, some of the harshest treatment reported by detainees has occurred at the Joint Security Committee detention facility in Jericho, where officers subject detainees to regular shabeh and long stints in small solitary cells cut off from others. A young man from Balata said officers subjected him twice to electrical shocks and once tied a cord around his penis and witnessed officers of the Joint Security Committee dislocate the shoulder of another detainee when striking him with a chair while his hands were bound behind his back, an account corroborated by the other detainee’s family after a visit with him.[15]

Palestinian authorities have continued to carry out these abuses in recent years. In Gaza, Hamas authorities detained over 1,000 people, often using excessive force in the process, during the “We Want to Live” demonstrations in March 2019, according to the Palestinian statutory watchdog, the Independent Commission for Human Rights (ICHR). A 46-year-old freelance journalist detained during these demonstrations, Ihab Fasfous, told Human Rights Watch that, while in detention, Internal Security officers struck him in the face and all over his body and poured cold water on him. A 27-year-old activist and freelance journalist, Amer Balousha, said authorities placed him in solitary confinement for seven days, only releasing him ahead of a military escalation with Israel.[16]

In the West Bank, the PA’s Intelligence Services in March 2019 detained 29-year-old cameraman Hazem Emad Nasser. During 19 days in detention, he reported to his lawyer that officers repeatedly subjected him to shabeh. Officers on several occasions tied his arms behind his back and hung them from the bathroom door, including once for over an hour, he said. They also forced him to stand with his legs spread wide and hands up for minutes at a time, as they beat him with a plastic hose. He spent all but three days of his detention in solitary confinement.[17]

In June 2021, PA security forces arrested and beat to death while in custody Nizar Banat, a prominent PA critic who had previously been detained for his activism and had planned to run on an independent slate during Palestinian Legislative elections in 2021 before they were postponed. A March 2022 joint report by ICHR and the Palestinian human rights group al-Haq, found that the excessive use of force by PA security forces caused Banat’s death.[18] More than a dozen plain-clothed Preventive Security officers violently dragged Banat out of the home he had been staying at, kicking and hitting him with the butts of their rifles for several minutes nonstop.[19] They continued to repeatedly strike him as they forced him into the car.[20] The report concludes that Banat died in the car;[21] a Hebron hospital tried to resuscitate him without success.[22] An autopsy attributed his death to suffocation caused by the lungs filling with blood and secretions.[23]

In the months that followed, PA forces violently dispersed popular protests demanding justice for Banat’s death and rounded up scores for peaceful protesting.[24] Security forces mistreated some of those detained.[25]

In December 2021, PA Intelligence Services forces detained three students for more than a week, according to Lawyers for Justice. The students told Lawyers for Justice that, for three of those days, security forces handcuffed the students and locked them in a small space in which they were forced to stand the entire time. They also conducted prolonged interrogations late at night, which further contributed to depriving them of sleep. All three said officers hung them upside while interrogating them and one said they severely beat him while in detention.[26]

In 2021, the ICHR received 252 complaints of torture and ill-treatment against PA authorities in the West Bank and 193 against Hamas authorities in Gaza.[27]

Israeli authorities have also mistreated and tortured Palestinians, including in the occupied West Bank. The Public Committee Against Torture in Israel (PCATI) says that it receives every year “dozens of complaints… alleging severe torture employed by the ISA (Shin Bet) interrogators. Torture methods reported included painful shackling, sleep deprivation, exposure to extreme heat and cold, threats, sexual harassment, and religion-based humiliation.”[28] More than 1,300 complaints of torture, from acts carried out in Israel or in the occupied West Bank, have been filed with Israel’s Justice Ministry since 2001, according to PCATI.[29]

Israeli authorities maintain several places of detention in the occupied West Bank, including the Ofer Military Prison. It also jails many Palestinian prisoners detained in the occupied West Bank and Gaza inside Israel, even though transferring residents from occupied territory violates international humanitarian law.[30] Human Rights Watch has documented how Israeli forces physically abused Palestinian children detained in East Jerusalem and other parts of the occupied West Bank.[31] Defense for Children International-Palestine has found mistreatment of Palestinian children in the Israeli military detention system “widespread, systematic, and institutionalized.”[32]

While Israel undertook these measures, they nonetheless trigger obligations for the State of Palestine. CAT not only obligates the state of Palestine to refrain from mistreating and torturing people; it obligates it also to affirmatively take steps to “prevent acts of torture in any territory under its jurisdiction.”

The existence of positive obligations does not depend on the exercise of effective control by the State of Palestine. The Israeli occupation does not negate Palestinian jurisdiction under Article 2, but rather focuses its scope on the positive obligations specified in Article 2. The State of Palestine must endeavor to take all appropriate measures in its power and in accordance with international law to ensure adherence to CAT. Appropriate measures can be of diplomatic, economic, or juridical nature, and can be addressed either to other States or to international organizations.

While the Israeli army often carries out arrests itself in its capacity as the occupying power, it engages in close security coordination with PA forces. That security coordination has remained largely constant irrespective of the level of abuse of Israeli forces on the ground. In 2014, Palestinian president Mahmoud Abbas said, “Security coordination is sacred and will continue whether we agree or disagree on policy.”[33] Palestinian officials have not indicated that they have leveraged their bilateral security relationship in any way to address mistreatment and torture in detention by Israeli authorities.

Executions as torture, cruel and degrading treatment (Art. 1)

Courts in Gaza had, as of May 21, 2022, sentenced 171 people to death, in a context where due process violations, coercion, and torture are prevalent, and Hamas authorities have carried out 28 death sentences, according to the Gaza-based Palestinian Center for Human Rights.[34] Nine of those took place between 2016 and 2017. Hamas officials have summarily executed, without any judicial process, scores of others, often on accusations of collaboration with Israel.[35]

Impunity for Torture (art 4, 12, 13, 14)

Palestinian authorities in both the West Bank and Gaza have routinely failed to hold accountable security forces for using excessive force, ill-treatment, and torture against detainees. While authorities provide some degree of oversight, including external oversight, over places of detention and have systems in place to investigate wrongdoing, routine abuse continues unabated. Authorities regularly receive citizen complaints, but only a minority have resulted in a finding of wrongdoing, and even fewer lead to administrative sanction or referral for a criminal prosecution, according to data provided by both the PA and Hamas.[36]

Between January 2018 and March 2019, for example, the Palestinian Authority said it received 346 complaints of arbitrary arrest and mistreatment and opened investigations in each case. However, it found wrongdoing in only 48 cases, a mere 14 percent, of which 28 resulted in warnings or administrative sanctions such as reductions in salary or promotion delays. A 2019 Palestinian Authority letter to Human Rights Watch noted that most torture complaints to the Preventive Security agency aimed to “tarnish Palestine’s image in front of international civil society.”[37]

During this same period, twenty cases of PA abuse had been referred for prosecution or trial. As of May 2019, many remain open, but only one officer was convicted: a Palestinian Authority intelligence officer who received a 10-day prison sentence for assaulting demonstrators. The PA did not respond to a 2021 letter requesting updated data. No Palestinian security officer was convicted for wrongful arrest or torture in 2016 or 2017.[38]

During the same period between January 2018 and March 2019 in Gaza, Hamas authorities said they received 47 complaints of arbitrary arrest and torture. They found wrongdoing in eight cases, opening investigations into each. Seven involving arbitrary arrest and mistreatment led to administrative sanctions, including transfer and detention without trial for up to a month. One case of torture was referred to military prosecution. As of May 2019, the case remained in the courts and there had been no convictions.[39]

Human Rights Watch and Lawyers for Justice were not able to independently corroborate the data cited above on accountability provided by the PA and Hamas.

Despite widespread reporting on these issues in recent years by civil society groups, there has been no apparent change in policy or practice by either the PA or Hamas. Even in the high-profile Banat case, there are real questions about whether there will be genuine accountability for the perpetrators. The official committee formed by Palestinian Prime Minister Mohammad Shtayyeh to investigate the killing submitted its report five days after its formation, but the report and its findings have never been made public.[40] Military prosecutors on September 5, 2021, charged 14 Preventive Security officers involved in the Banat operation with participating in a beating leading to death.[41] The Banat family and their lawyer have raised questions about the ongoing trial, including the basis on which the court granted privileges to the accused, such as allowing them out of prison to visit family, without a court order. They announced a boycott of proceedings on May 18, 2022.[42] On June 21, 2022, the military prosecutor, according to a document reviewed by Human Rights Watch, granted the 14 accused officers a 12-day release from prison on the pretext of the rise in Covid-19 cases in the detention facilities they were being held at, further feeding into the family’s concerns. Lawyers for Justice, which has monitored the proceedings, has accused the court of moving too slowly.

With regards to Israeli forces, only two of the more than 1,300 complaints of torture filed with Israel’s Justice Ministry since 2001 have resulted in criminal investigations and none in indictments, according to PCATI.[43]

Lack of Independent Oversight Over Places of Detention (Optional Protocol)

Five years after acceding to the Optional Protocol, Palestinian President Mahmoud Abbas issued a decree in May 2022 establishing the National Commission Against Torture. Despite extensive dialogue with Palestinian civil society over several years, which highlighted the importance of the commission maintaining independence in order to be effective, the hastily issued law strips the mechanism of any degree of actual independence, 26 Palestinian civil society organizations said in a joint statement.[44] The joint statement highlights how all members of the Commission will be appointed by the President and be considered government employees and how the Commission itself will operate as a government body.[45] ICHR also has said that the law “undermines in a major way the independence, transparency and impartiality” of the mechanism and “does not provide it with the necessary legal tools” to prevent torture and prohibited ill-treatment, as required under the Optional Protocol.[46] It called on President Abbas to halt implementation of the law and allow for further consultations on it.[47]

Recommendations

We encourage the Committee to state clearly that CAT, as ratified by the State of Palestine without reservations, applies throughout the State of Palestine. The Committee should also call on Israel to allow the Sub-Committee on the Prevention of Torture to access the West Bank and Gaza in order to monitor adherence to CAT and to CAT’s Optional Protocol.

We encourage the Committee to make the following recommendations to the State of Palestine, to be implemented in both West Bank and Gaza:

• Publicly pledge to end arbitrary arrests, torture, and impunity by security forces
• Cease the use of shabeh and publicly pledge that this tactic, and other forms of prohibited ill-treatment and torture, will not be used and any security officer who practices it will be prosecuted;
• Order prosecutors not to use confessions and other evidence that may have been obtained by torture, except against the alleged torture as evidence the statement was made;
• Investigate, in a thorough, impartial, and timely manner, all credible allegations of torture and prohibited ill-treatment by law enforcement officials, regardless of rank or political affiliation;
• Prosecute members of the security forces against whom there is evidence of criminal responsibility for torture or prohibited ill-treatment, including command responsibility, ensuring that all perpetrators of serious human rights abuses are brought to justice regardless of rank or political affiliation;
• Publish data on the number of investigations opened, cases referred for prosecutions, and number of convictions for abuses by security forces and other outcomes;
• Rescind the decree that establishes the National Commission against Torture and put forward a new law that creates a fully independent body, in line with the Optional Protocol to the Convention Against Torture, staffed by professionals able to functionally independently from the government and able to make unannounced inspections of known and suspected detention sites, formal and informal, investigate complaints of abuse by the security services, prosecute these complaints in civilian court, and maintain a publicly available record of complaints received, investigations, and outcomes;
• Cease handing over Palestinians to the Israeli military as long there remains a real risk of torture and other prohibited ill-treatment of those in detention;
• Cease all security coordination with the Israeli army that contributes to facilitating torture and other grave abuses;
• Issue a moratorium on carrying out death sentences, with a view to permanently abolishing the practice.