In the introduction to its report, the HRC noted Israel's security concerns, but emphasized the need to observe and guarantee human rights, in accordance with the provisions of the ICCPR.
The HRC noted with concern Israel's position that the ICCPR does not apply to acts undertaken outside Israeli territory. In this regard, the HRC referred to its longstanding position, which is also supported by the International Court of Justice (ICJ), that the ICCPR applies when a State exercises its jurisdiction extra-territorially. According to the HRC, this includes Israel's operations in the West Bank and Gaza.
The HRC noted that upon joining the ICCPR, Israel made a declaration concerning its current state of emergency, in accordance with article four of the ICCPR. This article is a derogation clause, which allows states to suspend some human rights in emergency situations. Nonetheless, the HRC expressed its concern about Israel's prolonged state of emergency, which has been in effect ever since 1948. Moreover, despite acknowledging that Israel is allowed to derogate from article nine of the ICCPR (the right to liberty), the HRC criticized Israel's frequent and extensive use of administrative detentions, including the detention of minors. The HRC noted that administrative detentions infringe, inter alia, the detainees' right to a fair trial. It recommended that Israel refrain from using administrative detention, especially in the case of minors, and called upon Israel to ensure that the rights of detainees to fair trial are upheld at all times.
The concluding observations also noted the concern with which the HRC regards Israel’s blockade of the Gaza Strip and the use of force in the flotilla event of 31 May 2010, which caused the death of nine individuals and the wounding of several others[3]. The HRC noted that although Israel's Turkel Committee is conducting an investigation of the incident,[4] the HRC is concerned by the Committee's lack of independence and its inability to question members of the military involved in the incident. The HRC recommended that Israel lift its military blockade of the Gaza Strip, which adversely affects the civilian population, and that Israel invite an independent, international fact-finding mission to establish the circumstances surrounding the boarding of the flotilla ships, and the compatibility of such action with the ICCPR.
With regard to the findings and recommendations of the United Nations Fact Finding Mission on the Gaza Conflict (The Goldstone Report)[5], the HRC noted that the Israel Defense Forces (IDF) has investigated several incidents in which violations of international humanitarian law and human rights law allegedly occurred during "Operation Cast Lead", and that these investigations have already led to one conviction and two indictments.[6] Nonetheless, the HRC expressed its concern that the majority of the IDF's investigations was carried out on the basis of confidential operational debriefings. The HRC further expressed regret that "Israel has not conducted independent and credible investigations into serious violations of international humanitarian law, such as direct targeting of civilians and civilian objects, … use of civilians as 'human shields', refusal of evacuation of wounded… and detention in degrading conditions".
While the concluding observations noted that the IDF's investigations of "Operation Cast Lead" led to the elaboration of new guidelines and orders regarding the protection of civilians during armed conflict and the assignment of humanitarian affairs officer to each military unit,[7] the HRC recommended that Israel launch credible, independent investigations into the serious violations of international human rights law during this military operation. It called for these investigations to examine the responsibility of all decision makers, whether military or civilian.
The HRC also referred to the ongoing Israeli legislative process pertaining to a new comprehensive counter-terrorism bill, which attempts to review the definition of terrorism and other related issues.[8] The HRC stressed that Israel should ensure that its counter-terrorism measures are in full conformity with the provisions of the ICCPR.[9] It also expressed particular concern about the plans to include provisions of the Criminal Procedure (Detainee Suspected of Security Offense) (Temporary Provision) Law[10] within the revised counter-terrorism law. These provisions allow for longer periods of detention without judicial review, restrict access to legal counsel, and enable the court to decide on the extension of a suspect’s detention in abstenia. The HRC also recommended that the definitions of terrorism and security suspects under the new legislation should be narrow and precise, and in full conformity with the ICCPR.
The HRC also referred to the Citizenship and Entry into Israel Law (Temporary Provision) as amended in 2005 and 2007, which was affirmed as constitutional by the Israeli Supreme Court in 2006. The HRC recommended that this law, which strictly limits the possibility of family reunifications involving Israeli citizens and persons residing in the West Bank, East Jerusalem or the Gaza Strip, should be revoked and that Israel should ensure that its policy on family reunification of all citizens and permanent residents is applied without discrimination.
The HRC expressed concern over restrictions of freedom of movement imposed on Palestinians as a result of the separation barrier, especially Palestinians residing in the "Seam Zone" between the barrier and Israel's 1967 borders. The HRC recommended that Israel stop the construction of a “Seam Zone” by means of a wall since the barrier seriously impedes the right to freedom and movement of Palestinians.
The HRC also expressed its concern about Israel's use of targeted killings as part of its counter-terrorism policy. It noted that since 2003, 184 individuals have been targeted and executed in the Gaza Strip, resulting in the collateral death of 155 additional individuals. The HRC recommended that Israel end its practice of extrajudicial execution of individuals suspected of involvement in terrorist activities and conduct all of its operations in accordance with the principles of international humanitarian law. Moreover, the HRC also recommended that Israel should establish an independent body to promptly and thoroughly investigate complaints about disproportionate use of force.
With regard to torture, the HRC expressed concern that the crime of torture, as it appears in the ICCPR and in the Convention against Torture, has yet to be incorporated into Israel's legislation. The HRC also noted the existence of consistent allegations of the use of torture and cruel, inhuman or degrading treatment by Israeli security services, particularly in cases of Palestinian detainees suspected of security-related offences. The HRC further expressed concern at information that all complaints of torture are either denied factually, or justified under the "defence of necessity" as "ticking time bomb" cases. The HRC recommended that Israel remove “necessity” as a possible justification for the crime of torture and examine all allegations of torture, cruel, inhuman or degrading treatment.
With regard to Israel's house demolitions policy – a policy directed against the homes of families whose members were or are suspected of involvement in terrorist activities -- the HRC took the view that Israel resorts to such measures without considering other less intrusive measures. The HRC recommended that Israel should cease this practice, which amounts to a form of collective punishment.