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13 July 1998

TO: United Nations Human Rights Committee
FR: Human Rights Watch
RE: Israel's Report to the Committee  (CCPR/C/81/Add.13) While welcoming Israel’s submission to the Human Rights Committee, Human Rights Watch wishes to draw the committee members’s attention to several major shortcomings in the report. In particular, Israel’s submission fails to report on all the areas under its jurisdiction, lacks sufficient detail on the restrictions imposed by law or practice on the enjoyment of the rights specified in the covenant, and at times misrepresents Israeli practice. In light of these very serious shortcomings, Human Rights Watch believes that Israel’s submission falls sufficiently short of the committee’s guidelines for the form and content of initial reports to justify a request for Israel to provide additional information prior to its next periodic report.

The discussion that follows is intended to be illustrative of the report’s shortcomings, and does not pretend to be a comprehensive rebuttal of Israel’s assertions. Other international, Palestinian, and Israeli nongovernmental organizations address equally important shortcomings in their submissions. Jurisdiction Over Occupied Territory
Article 2(1) of the covenant requires a state party to respect and ensure rights “to all individuals within its territory and subject to its jurisdiction.” Notwithstanding the conjunctive formulation of the state’s responsibility, the Human Rights Committee has interpreted this scope clause disjunctively to apply to persons either within the state’s territory or otherwise subject to its jurisdiction. Among the committee’s decisions with regard to Uruguay’s violations of the  International Covenant on Civil and Political Rights (ICCPR) are the decision that persons who had fled abroad are not prevented by Article 2(1) from submitting individual communications to the committee;1 the decision that states parties are responsible for violations by its foreign diplomatic representatives;2 and the decision that communications from persons who had been kidnaped by Uruguayan agents outside of Uruguay were admissible, on the grounds that states parties are responsible for actions of their agents on foreign territories.3 With regard to Lebanon in particular, Israel’s obligation to implement the convenant in the territory it occupies is further supported by the committee’s previous decisions on Hong Kong. In arguing that Hong Kong’sreporting obligations continue after the transfer of sovereignty to the People’s Republic of China, the committee said that

in dealing with cases of dismemberment of States parties to the International Covenant on Civil and Political Rights, it had taken the view that human rights treaties devolve with territory, and that States continue to be bound by the obligations under the Covenant entered into by the predecessor State. Once the people living in a territory enjoy the protection of the rights under the International Covenant on Civil and Political Rights, such protection cannot be denied to them merely by virtue of dismemberment of that territory or its coming under the sovereignty of another State or of more than one State. CCPR/C/79/Add.69
Although Israel has only occupied, not acquired sovereignty over, southern Lebanon, the principle that the treaty devolves with the territory should apply when another sovereign power is in effective control, particularly when both the occupying power and the sovereign state are parties to the covenant.4 As recently as April 1997 the committee acknowledged that Lebanon “is not in a position to ensure that the provisions of the Covenant are effectively applied and respected throughout the territory, since the authorities have no access to the southern part of the country, which remains under Israeli occupation.”  CCPR/C/79/Add.78, para. 4. The committee should not leave the population of southern Lebanon, which is entitled to respect of its rights under the covenant, without review of whether those rights are being protected. Human Rights Watch believes that individuals within all the territories under Israel’s occupation are likewise “within...its jurisdiction” and are entitled to the respect of all rights enumerated under the covenant. We note that the  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)  has been interpreted by its treaty body to extend to Israel’s occupied territories under Article 2 of that instrument, which requires the prevention of torture in “any territory under [the state party’s] jurisdiction.” During the review of Israel’s second periodic report to the Committee against Torture in May 1998 the committee specifically addressed Israel’s practice of administrative detention in the occupied territories, and concluded that it “should be reviewed in order to ensure its conformity with article 16.”  CAT/C/SR.337; CAT/C/ ISR  The treaty body of the International Convention on the Elimination of Racial Discrimination (CERD) Convention on the Elimination of All Forms of Racial Discrimination (CERD) has also taken the position that Israel’s obligations under that treaty extend to the territories occupied by Israel, saying during its March 1998 review of Israel’s combined seventh, eighth, and ninth periodic reports that it “reiterate[d] its opinion of 1991 that the report of Israel ‘should encompass the entire population under the jurisdiction of the Government of Israel’ (A/46/18 para. 368). Israel is accountable for implementation of the Convention, including the reporting obligation, in all areas over which it exercises effective control.”  CERD/C/304/Add.45 para.12  In addition, the General Assembly, the High Commissioner for Human Rights, and many other U.N. bodies and mechanisms have also repeatedly stressed Israel’s obligation to implement the Fourth Geneva Convention to the territories it occupied in 1967.

Human Rights Watch believes that Israel’s obligations under the ICCPR extend to the territories under its control in the West Bank, the Gaza Strip, the Golan Heights, and South Lebanon. In failing to report to the committee on its implementation of the covenant in those territories Israel seriously misrepresents the degree of its fulfillment of its treaty obligations, as we discuss below. Accuracy International, Palestinian, and Israeli nongovernmental organizations (NGOs) have documented a wide range of Israeli violations of the rights guaranteed by the International Covenant on Civil and Political Rights, other international human rights treaties, and international humanitarian law. In the interest of space, Human Rights Watch will focus on only two types of violations, torture and prolonged administrative detention. We will show how Israel’sreport often misrepresents the extent of its violations of the covenant, both by giving insufficient information about how its laws are applied in practice, and by failing to report on the occupied territories.

Human Rights Watch encourages the committee to give careful consideration to the detailed submission on these and other issues by Adalah, Amnesty International, the Arab Association for Human Rights, Article 19, the Association for Civil Rights in Israel, B’Tselem, LAW, the Lawyers Committee for Human Rights, and the Palestinian Center for Human Rights, and to consider soliciting additional information on Israeli violations from the many other organizations who were unable to prepare submissions to the committee in the few weeks between the publication of Israel’s report and committee meeting. 1. Administrative Detention Israel asserts that its emergency regulations only deny or restrict rights under the Basic Law: Human Dignity and Liberty “for a proper purpose and for a period and to an extent that is no greater than required.” (CCPR/C/81/Add.13 paras. 116-118.) In fact, Israel has used prolonged administrative detention to hold individuals hostage, as a means of punishing non-violent political expression and activity, and as a substitute for bringing suspects to trial. Israel’s use of administrative detention may also facilitate other serious abuses, including torture, arbitrary arrest, and violations of the right to fair trial. Furthermore, the “ongoing judicial review” provided for in the Emergency Powers (Detention) Law of 1979, governing Israel’s use of administrative detention inside the Green Line, is rendered effectively meaningless by the statute’s provisions that review consider not the factual reliability of the evidence, but whether, if factual, the evidence would be a sufficient reason for detention. The statute also allows the presiding judge to “accept evidence without the detainee or his representative being present and without disclosing the evidence to them.” (CCPR/C/81/Add.13 paras. 119-122.) Administrative detainees who are not residents of Israel, the West Bank, or Gaza, have a further limitation of their right to representation, as the statute allows the minister of justice to limit the roster of lawyers available to represent them to those with top security clearance. While most Israeli Jewish lawyers who apply are given this level of clearance, some of the lawyers most active in the representation of Palestinian security detainees, including Tamar Pelleg-Sryck, Andre Rosenthal, and Lea Tsemel, have been refused it, and only two Palestinian lawyers have received it.

In a number of cases Israel has admitted to using the Detention Law to hold Lebanese nationals as “bargaining chips” — i.e. hostages — to secure the release of Israeli servicemen, a practice Human Rights Watch documented in its October 1997 report, “Without Status or Protection: Lebanese Detainees in Israel.” The policy of taking hostages was officially justified in March 1998, with the publication of a February 1996 ruling by the Supreme Court on the renewal of the administrative detention of an unnamed group of at least ten Lebanese nationals. While admitting that their detention “entail[s] a severe violation of human dignity,” the Supreme Court explicitly authorized the holding of the prisoners as “bargaining chips.” (Administrative Detention Appeal 10/94, para.12.) Presiding Justice Barak argued that “it is sufficient for me to say that the detention of the Appellants, when it comes to advance and protect State security — although the Appellants themselves do not pose such a danger — is lawful detention.” (Administrative Detention Appeal 10/94, para. 13.)

The Detention Law places no limit on the cumulative length of administrative detention, and Israeli courts continue to renew the detention order of the twenty-one Lebanese administrative detainees known to be in custody. The most recent six month renewal took place on April 20, 1998. Eleven of the detainees were originally tried and sentenced in military courts in Israel after having been arrested by South Lebanese Army and/or Israeli Defense Force (IDF) in South Lebanon. They have been held as administrative detainees between four and ten years after completing their sentences. The other ten detainees were captured by IDF or Lebanese militia in 1987, 1989, and 1994, and have never been brought to trial. Two of these detainees, Mustafa al-Dirani and Shaykh `Abd al-Karim Obeid, are held at a secret site and have been denied visits by the International Committee of the Red Cross (ICRC). None of the twenty-one were among those Lebanese Israel released on June 25 and 26, 1998 in an deal arranged by the ICRC. In that exchange Israel received the remains of Itamar Ilya, an Israeli soldier killed in an Israeli raid on South Lebanon in September 1997, in return for the release of ten Lebanese prisoners held inside Israel, fiftyLebanese detainees held at the al-Khiyam detention center in South Lebanon, and the bodies of another forty Lebanese whose corpses had been taken to Israel after their deaths in clashes in South Lebanon. One of the detainees captured in 1987, Ghassan al-Dirani, was ordered released by an Israeli court on June 28, 1998, but execution of the court order has been delayed for an additional thirty days to give the state time to appeal. Israel successfully appealed a 1997 court order to release al-Dirani.

The vast majority of Israel’s administrative detention orders are not regulated by the Detention Law, but are carried out in the West Bank under Military Order 1229 of 1988, and in Gaza under Military Order 941 of 1988. Unlike the Detention Law, these Military Orders do not require judicial review of an administrative detention order, and set no minimum period in which an appeal must be heard. When a detainee does appeal a detention order, the review is limited to checking the legality of the reasons given for the detention, and detainees are regularly denied access to virtually all the evidence against them.

Human Rights Watch believes that administrative detention under the Military Orders is frequently used to detain individuals that Israel does not wish to bring to trial, either because the available evidence is below the threshold for admission in court, or because it would reveal confidential sources. The Israeli human rights group B’Tselem, in its July 1997 report on Israel’s administrative detention practices, documented numerous cases where administrative detention was shown to have been used to punish nonviolent political activity and the expression of political opinions. Detainees were also denied access to the evidence against them in almost all the cases it reviewed.

Pressure by Palestinian, Israeli, and international NGOs and others has led to a decline in the number of long-term Palestinian administrative detainees, but this trend has not affected the Lebanese detainees held as hostages, nor does it seem to have had much effect on shorter-term detentions. In 1997 at least 1,900 administrative detention orders were served, and as of June 1998 an estimated one hundred individuals still remain in custody. These figures do not include the approximately one hundred Lebanese nationals who remain in custody without charge or trial at the al-Khiyam detention center in the South Lebanon zone under Israeli control. Israel’s effective control of South Lebanon, detainees’ accounts of interrogation by Israeli officers while in custody at al-Khiyam, and the inclusion of fifty al-Khiyam detainees in the June 25 and 26, 1998 prisoner exchange all support Human Rights Watch’s position that Israel bears responsibility for the situation of detainees at al-Khiyam.

Whether under the Detention Law or Military Orders, prolonged administrative detentions without charge or trial, often in harsh conditions, constitute arbitrary detention and as such are a violation of Article 9 of the covenant. Israel has announced its derogation from its Article 9 obligations, on the basis of the procedure allowed for in Article 4. However, Article 4 requires that states parties derogating from their obligations under the covenant only take such measures “to the extent strictly required by the exigencies of the situation” and the committee has further clarified that it considers such measures to be “of an exceptional and temporary nature.” ( General Comment 5/13 of 1981, para. 3.) Even if the committee were to accept that a state of emergency in existence for fifty years and a Detention Law in use for nineteen years can be considered “exceptional and temporary,” it must question the extent to which Israel’s use of administrative detention is “strictly required by the exigencies of the situation,” knowing that in several cases Israel has acknowledged that its decision to detain individuals administratively is not in any way linked to a threat posed by those individuals. Given that the laws of war prohibit hostage-taking even during wartime, the committee should not sanction hostage-taking under human rights law by allowing Israel to justify prolonged administrative detention of individuals as leverage over the acts of others. Furthermore, Article 4 requires that any measures taken by states parties derogating from their obligations under the covenant be “not inconsistent with their other obligations under international law.” As a High Contracting Party to the  Fourth Geneva Convention , Israel’s use of prolonged administrative detention to hold persons protected under that convention hostage is a violation the convention’s absolute prohibition against hostage-taking (Article 34), its provision that detainees be heldin the occupied country (Article 76),5 and that detention be “for imperative reasons of security.”(Article 78, emphasis added.)6

Human Rights Watch believes Israel’s use of prolonged administrative detention and hostage-taking to be a violation of the covenant and of international humanitarian law, of questionable proportionality to the threat faced by the state, and lacking the “exceptional and temporary nature” required by Article 4. Human Rights Watch also believes that Israel’s use of prolonged administrative detention may be in violation of Article 7's prohibition of cruel, inhuman or degrading treatment or punishment. In May 1998 the Committee against Torture explicitly addressed this possibility, stating in its Conclusions and Recommendations to Israel that “The practice of Administrative Detention in the Occupied Territories should be reviewed in order to ensure its conformity with article 16.” (CAT/C/ISR.) 2. Torture Human Rights Watch strongly objects to Israel’s characterization of its law as prohibiting the use of cruel, inhuman or degrading treatment or punishment, and providing effective oversight of detention and interrogation practices. The Committee against Torture has repeatedly noted that Israel has yet to incorporate in its domestic law the provisions of the Convention against Torture, including the convention’s definition of torture. In May 1998 the committee further stated that Israel’s use of hooding, shackling in painful positions, sleep-deprivation, and shaking of detainees during interrogation “are in conflict with articles 1, 2 and 16 of the Convention and should cease immediately.” The interrogation procedures specified by the committee are believed to be among those permitted by Israel’s secret “Landau rules,” and the committee also recommended that those guidelines “should in any event be published in full.” (CAT/C/ ISR.) At least one detainee, `Abd al-Samad Harizat, is believed to have died as a result of shaking during interrogation.

In addition to Israel’s failure to explicitly outlaw torture, the impact of the legislation cited in its report as implementing Article 7 (CCPR/C/81/Add.13 paras. 169-174) is effectively nullified by the state’s frequent recourse to the “defense of necessity” to justify the use of torture. The necessity defense is based on Article 34(11) of the Penal Code, which states that

A person shall not bear criminal liability for an act which was immediately necessary in order to save the life, freedom, person or property, be it his own or that of another, from a concrete danger of severe harm stemming from the conditions existing at the time of the act and having no other way but to commit it.
Although Israeli law does allow for judicial review of allegations of abuse during interrogation (CCPR/C/81/Add.13 paras. 188-191), in practice the High Court routinely accepts the state’s position that the use of physical force in interrogation is justified to obtain urgently needed information in order to save lives or property. Another serious flaw in the judicial review process is the High Court’s practice of accepting the use of physical pressure during interrogation as long as it does not violate Israeli law, while abstaining from ruling on whether specific interrogation practices do in fact violate the law. This unwillingness to rule on whether specific practices constitute torture is evident even in the two cases Israel cites in its report. In the Belbaysi case (CCPR/C/81/Add.13 para. 189) the High Court ruled to annul an interim injunction against “the use of physicalforce” in interrogation without commenting on the request by the Appellant to explicitly exclude the use of shaking, thereby implying that its use would be considered within the law. In the Hamdan case (CCPR/C/81/Add.13 para. 190) the High Court again ruled to annul an interim injunction against the use of physical force without commenting on the means used, saying that “no information has been provided to us regarding the ways of interrogation which the Respondent intends to pursue, and we do not express any opinion regarding them.”7 The High Court did finally agree to take up the issue of the legality of specific interrogation procedures in January 1998, but postponed additional sessions after hearing the state’s testimony in May. In explaining the postponement, one member of the High Court explained that it was up to the Knesset to enact legislation specifying what interrogation methods were legal.

In response to the position taken by the High Court, the Ministry of Justice is reportedly preparing a draft amendment to the Prevention of Terrorism Act (1948) which would explicitly endorse the use of physical pressure in interrogation, including interrogation practices believed to be allowed under the confidential “Landau rules,” which the Committee against Torture found to constitute torture. The text of the amendment is reported to allow the use physical pressure in interrogations as long as the methods used met secret guidelines. A similar article was dropped from an earlier draft of the General Security Services(GSS) Law after widespread protests from human rights groups. The current draft of the GSS Law continues to allow the adoption of secret guidelines for interrogation, and grants GSS employees immunity from criminal liability if they are acting “in good faith and in a reasonable manner in the course of carrying out their duties,” thereby lessening the legal protections against torture. The bill also makes it a criminal offense for any member of the GSS or its Knesset oversight committee to disclose information without authorization.

Human Rights Watch believes Israel’s use of physical force in interrogation to be a violation of Article 7 of the covenant. Human Rights Watch urges the Human Rights Committee to:
· Request Israel submit information on its implementation of the covenant in the territories it occupies in the West Bank, Gaza, the Golan, and South Lebanon, as provided for in Article 40 (b) of the covenant, and Rule 70 (2) of the Rules of Procedure of the Human Rights Committee (CCPR/C/3/Rev.5);

· Condemn the practice of administrative detention of individuals for reasons that do not pertain to the detainee’s specific case, that is, in circumstances where a person is detained solely as leverage over the acts of others; and

· Condemn Israel’s use of torture during interrogation, and reiterate the covenant’s absolute prohibition against torture.

Human Rights Watch also calls on the Human Rights Committee to recommend to the State of Israel that it:
· Immediately end the practice of torture, amend domestic law to be consistent with the covenant’s prohibition of torture, including adopting a definition of torture consistent with international law, and make public the guidelines governing interrogation procedures;

· Immediately end the practice of holding detainees as hostages, both inside Israel and in the territories under its control. Persons held as “bargaining chips” should be immediately released;

· Where Israel continues to detain persons administratively under a declared state of emergency for reasons specific to each individual’s case, revise its laws to ensure that such detainees at a minimum are entitled to: --the right to be brought before a judicial or other authority promptly after arrest;
--the right to receive an explanation of rights upon arrest in his or her own language or soon thereafter and to be informed of the specific, detailed, and personalized reasons for the deprivation of liberty;
--the right of immediate access to family, legal counsel, and a medical officer;
--the right to challenge, in a fair hearing and periodically if necessary, the lawfulness of the detention and to be released and seek compensation if the detention is arbitrary or unlawful;
--the right to complain to a judicial authority about mistreatment; and · Ensure that these rights are administratively and judicially enforced by amending its domestic laws to: -- recognize that international law does not sanction indefinite administrative detention of individuals solely on the basis that they may be “bargaining chips” for national security;
-- ensure that any individual held under Military Orders is entitled to prompt review of an order of detention, informed of the right to a lawyer’s assistance in making such a challenge, and entitled to an appeal of an adverse decision within a set and timely period.
-- ensure that judicial review of detention under the Emergency Powers (Detention) Law of 1979 requires judges to consider the actual factual reliability of the evidence offered to justify a deprivation of liberty and to mandate the presence of the detainee and his or her representative during the hearing.

* * *

Human Rights Watch
Middle East Division

Human Rights Watch is dedicated to protecting the human rights of people around the world.

We stand with victims and activists to bring offenders to justice, to prevent discrimination, to uphold political freedom and to protect people from inhumane conduct in wartime.

We investigate and expose human rights violations and hold abusers accountable.

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We enlist the public and the international community to support the cause of human rights for all.

The staff includes Kenneth Roth, executive director; Michele Alexander, development director; Reed Brody, advocacy director; Carroll Bogert, communications director; Cynthia Brown, program director; Barbara Guglielmo, finance and administration director; Jeri Laber, special advisor; Lotte Leicht, Brussels office director; Patrick Minges, publications director; Susan Osnos, associate director; Jemera Rone, counsel; Wilder Tayler, general counsel; and Joanna Weschler, United Nations representative. Jonathan Fanton is the chair of the board. Robert L. Bernstein is the founding chair.

Its Middle East division was established in 1989 to monitor and promote the observance of internationally recognized human rights in the Middle East and North Africa. Hanny Megally is the executive director; Eric Goldstein is the research director, Joe Stork is the advocacy director; Virginia N. Sherry is associate director; Clarisa Bencomo, Elahé Sharifpour-Hicks, and Nejla Sammakia are researchers; Georgina Copty and Awali Samara are associates. Gary Sick is the chair of the advisory committee and Lisa Anderson and Bruce Rabb are vice chairs.

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1 See Carmen Amendola Massiotti and Graciela Baritussio, Communication No. 25/1978, adopted 26 July 1982, paras. 7.1-7.2; Miguel Angel Estrella, Communication No. 74/1980, adopted 29 March 1983, para. 4.1; and Antonio Viana Acosta, Communication No.110/1981, adopted 29 March 1984, para. 6.

2 See Sophie Vida Martins, Communication No. 57/1979, adopted 23 March 1982, para. 7; Mabel Pereira Montero, Communication No. 106/181, adopted 31 March 1983, para. 5; and Samuel Lichtensztejn, Communication No. 77/1980, adopted 31 March 1983, para. 6.1.

3 See Sergio Ruben Lopez Burgos, Communication No. 52/1979, adopted 29 July 1981, paras. 12.1-12.3; and Lilian Celiberti de Casariego, Communication 56/1979, adopted 29 July 1981, paras. 10.1-10.3.

4 Lebanon became a party to the covenant on November 3, 1972, prior to Israel's occupation of part of its territory.

5 Arab detainees from outside the West Bank and Gaza Strip are often held in detention centers inside Israel, including Kishon, Ashkelon, and Ayalon. Since the 1995 closure of the Ketziot detention center in southern Israel, most detainees from the West Bank and Gaza Strip have been held at Megiddo detention center in northern Israel.

6 The ICRC’s Commentary to Article 78 further stresses that “such measures can only be ordered for real and imperative reasons of security; their exceptional nature must be preserved.”

7 Hamdan was eventually released after an additional ten months in administrative detention. Despite the General Security Service’s (GSS) assertions that Hamdan’s detention and interrogation using physical means was necessary to obtain “extremely vital information needed to save lives and prevent serious terrorist attacks,” Hamdan was not charged with any criminal offence.

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