This report highlights the failure of the criminal justice system in Gaza under Hamas rule, including security forces, prosecutors, and judges, to uphold the law and protect the rights of detainees and criminal defendants and hold those responsible for serious abuses accountable.
Based on interviews with former detainees, lawyers, human rights groups, and reviews of case files and court judgments the report documents how Hamas security services in Gaza routinely conduct arrests without presenting warrants, refuse to promptly inform families of detainees’ whereabouts, deny detainees access to a lawyer and torture detainees in custody.
In August 2008, Abdel Karim Shrair was arrested by members of the al-Qassam brigades, Hamas’s armed wing, which detained and allegedly tortured him at an unknown location for three weeks before transferring him to the custody of the police. The military prosecutor then ordered Shrair’s detention and interrogation by the Internal Security service, and later charged him with collaborating with Israel, in part on the basis of information that his lawyer alleged was obtained under torture. Internal Security interrogators also tortured Shrair, his family said, and prevented them from seeing him until October. Shrair’s mother said that when she was first able to see him, his legs and face were bruised, his feet were swollen, his hands and arms had rope marks and his chest had burn marks. The military courts did not adequately address Shrair’s claims of torture. The courts held that the prosecutor, by subsequently ordering Shrair’s detention and interrogation, had retroactively “corrected” prior gross violations including Shrair’s warrantless arrest and incommunicado detention. Shrair was sentenced to death and executed by firing squad in May 2011. His mother said that Hamas authorities had prohibited the family from burying him, and that police beat her when she tried to hold his body during the interment.
Shrair’s family members are among numerous witnesses who have reported that the Internal Security agency, the drugs unit of the civil police force, and police detectives all engage in the torture of detainees. The Independent Commission for Human Rights, a non-partisan Palestinian rights group that also monitors abuses in the West Bank, reported receiving 147 complaints of torture perpetrated by these forces in 2011. As a measure of how broken the system is, three criminal defense lawyers in private practice told Human Rights Watch that they had themselves been arbitrarily arrested and tortured in detention by Hamas security forces.
The abusive practices of the security services in Gaza flout human rights norms that Hamas has pledged to uphold, and also violate Palestinian laws. These laws require police to obtain judicial arrest and search warrants, and prohibit torture and the use of evidence obtained under torture. Security officers commonly arrest civilians and present them before Gaza’s military judiciary, even though its remit should be limited to military offenses.
In the seven cases documented in this report, the judiciary in Gaza, which consists of civil and military branches, consistently failed to hold to account security services that operated outside the law or to uphold the rights of detainees. In the cases Human Rights Watch examined, the military judiciary did not throw out any criminal cases against detainees because of due process violations, and ignored or failed to investigate credibly detainees’ claims that they had been tortured. Hamas officials claim to have disciplined hundreds of members of the security services for abuses since Hamas took power in 2007, but Hamas has never published any details about the officials involved or the disciplinary measures taken. Members of the Internal Security agency apparently continue to enjoy absolute impunity despite consistent allegations of severe abuse.
Former detainees who alleged they were abused by security services said they despaired of finding justice; several were afraid to describe what had happened to them in custody, even on condition that their identities would be kept confidential. Some men said they had needed medical care due to torture, and sought to obtain medical records as evidence that they had been tortured, but that hospital officials refused to provide them. Human Rights Watch is aware of at least three cases in which Hamas has executed prisoners whom judicial authorities sentenced without adequately reviewing credible claims that their convictions were based on evidence obtained under torture.
In previous research on intra-Palestinian political violence and abuses against detainees, Human Rights Watch found that the main factor underlying such human rights violations was the conflict between Hamas and its rival, the Palestinian Authority, which often prompted “tit for tat” abuses in Gaza and the West Bank. The intra-Palestinian political rivalry is still the root cause of many abuses against detainees, but there have been increasing reports of custodial abuse in Gaza against detainees accused of non-political crimes. Victims of alleged abuse whom Human Rights Watch interviewed include persons detained on suspicion of collaborating with Israel or the Palestinian Authority in the West Bank, as well as alleged perpetrators of drug offenses and fraud. Human rights lawyers in Gaza said that they have continued to receive the same kinds of allegations of abuse from victims since Hamas and Fatah announced a political reconciliation in May 2011.
Human Rights Watch impartially documents abuses by governing authorities in Gaza, Israel and the West Bank. This report does not attempt to compare abuses by Hamas with abuses by the Palestinian Authority security forces in the West Bank, where Human Rights Watch has also documented arbitrary arrest, torture and impunity. As part of a potential reconciliation agreement, the Palestinian authorities in Gaza and West Bank should both ensure that victims of torture and other cruel, inhuman and degrading treatment or punishment are compensated appropriately and that members of security forces responsible for torture are brought to justice.
Given credible evidence of widespread and gross violations of due process as well as systematic ill-treatment and torture, Hamas should take meaningful steps to reform its justice system to strengthen the rule of law and protect the rights of detainees. Hamas should immediately declare a moratorium on executions in death penalty cases. In light of numerous cases of detention where family members and lawyers are not notified of or able to promptly determine which security forces have custody, Hamas should ensure that detentions are carried out only by security forces legally authorized to do so. It should halt the prosecution and trial of civilians by the military judiciary. (The Palestinian Authority significantly reduced such military arrests and trials of civilians in the West Bank in 2011.) Hamas should explicitly guarantee that all detainees have the right to contact their families and a lawyer immediately upon arrest and that their families and lawyers can visit them in a timely manner. It should ensure all detainees are brought promptly before an independent judge after being detained.
Hamas should also ensure that members of security services are held criminally liable for abuses against detainees, and it should sanction prosecutors and judges who turn a blind eye to violations, such as by issuing retroactive arrest warrants or accepting evidence that was credibly alleged to have been obtained under torture. Hamas authorities should strengthen oversight and complaints mechanisms intended to keep security services in check, including by allocating more resources to investigating and prosecuting security officers allegedly responsible for abuses. Hamas should facilitate the work of human rights groups in Gaza, including the Independent Commission for Human Rights, to monitor conditions of detention and examine alleged abuses.