Three Years of Incommunicado Detention Is Cruel and Inhumane
June 25, 2009

"Hamas authorities have no excuse for cutting off Shalit from his family and the outside world for three years. Punishing Shalit for grievances against Israel is unjust and unlawful."

Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch

(Jerusalem) - Hamas authorities should immediately allow Sgt. Gilad Shalit of Israel to communicate with his family and to receive visits from the International Committee of the Red Cross (ICRC), Human Rights Watch said today, on the third anniversary of his captivity. Hamas's prolonged incommunicado detention of Shalit is cruel and inhumane and may amount to torture, Human Rights Watch said.

Hamas authorities are obligated by the laws of war to allow Shalit to correspond with his family, but during his three years of captivity, Hamas has passed on only three letters he has written and a voice recording. Neither Shalit's family nor the ICRC have been permitted to visit him.

"Hamas authorities have no excuse for cutting off Shalit from his family and the outside world for three years," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. "Punishing Shalit for grievances against Israel is unjust and unlawful."

Hamas officials have repeatedly insisted that they will return Shalit only in return for Israel's release of hundreds of Palestinian prisoners, including women, children, and others whom Israeli courts have convicted of deadly attacks on civilians. But repeated efforts at negotiating prisoner exchanges between Hamas and Israel have failed. On June 20, 2009, the Hamas leader, Khaled Meshal, told reporters in Kuwait that Israel was trying to "manipulate" Hamas to reduce its demands.

On June 16, another Hamas leader, Mahmoud Zahar, said Hamas would consider giving Shalit a letter from his parents, conveyed by the former US President Jimmy Carter. However, Hamas continues to reject requests by the ICRC to visit Shalit and to carry messages to and from his family.

On June 25, 2006, Palestinian militants based in the Gaza Strip raided an Israel Defense Forces post inside Israel, near the Kerem Shalom crossing, killing two Israeli soldiers and capturing Shalit, who then held the rank of corporal. Hamas, the governing authority in Gaza, has held him captive since that time. According to news reports, Shalit received medical treatment for a shoulder injury and a broken hand sustained during the attack.

The laws of war prohibit cruel and inhuman treatment of persons in custody. They also require a party to a conflict to permit persons deprived of their liberty to correspond with their families and consider in good faith and not arbitrarily refuse a request by the ICRC to visit detainees.

 Incommunicado detention arises when detainees are denied access to anyone outside the place of detention. In 2003, the United Nations Commission on Human Rights in Geneva resolved that "prolonged incommunicado detention ... can in itself constitute a form of cruel, inhuman or degrading treatment or even torture." The UN Human Rights Committee, a body of independent experts, has held in a number of cases that incommunicado detention, usually alongside other mistreatment, amounts to cruel, inhuman and degrading treatment. In the case of El-Megreisi v. Libya, the Human Rights Committee ruled that prolonged incommunicado detention of more than three years amounted to torture and cruel and inhuman treatment.

Israel has also deprived Palestinian prisoners of family visits. In June 2007, Israel suspended an ICRC-run program allowing twice-monthly family visits for 900 Palestinians from Gaza who are detained in Israeli prisons. The ICRC reported the case of one woman, Tahani Mustafa Herig, whom Israeli authorities only allowed to visit her husband three times between 2001 and 2007, when it barred all Gazan families from prison visits. The families are allowed to exchange letters.

Israel imposed the prison-visit ban at the same time as it did a larger blockade on people and goods after Hamas's violent takeover of Gaza on June 15, 2007. Israeli officials, including former Prime Minister Ehud Olmert, have stated that lifting the blockade is conditional on Hamas's release of Shalit. Human Rights Watch has called the blockade a form of collective punishment against Gaza's 1.5 million residents in violation of the laws of war. Violations of the laws of war by one party to a conflict do not justify violations by the other.

Israeli authorities have repeatedly detained Hamas members without charge in the West Bank in arrests related to the Shalit case. Shortly after Shalit's abduction in 2006, Israel detained nearly 40 Hamas politicians in the occupied West Bank. In March 2009, within days after Egypt-mediated negotiations over Shalit's release broke down in Cairo, Israel detained without charge another 10 Hamas members, including four members of parliament, in the West Bank. Israel has released some of the detained Hamas members, but Hamas says 34 lawmakers are still in detention.

"It's time for both Israel and Hamas to stop destroying lives and families by using the other side's detainees as bargaining chips," Whitson said.