Should the Basic Rights of Hamas Detainees Be Upheld? We Asked the Israeli Public

Prof. Asif Efrat

The war in Gaza confronts Israel with some difficult, crucial dilemmas. One of the most burning dilemmas concerns the thousands of Gaza residents detained by Israel since October 7, on suspicion of involvement in combat operations and affiliation with Hamas. This issue blew up dramatically around a month ago, when it was revealed that reserve soldiers had severely abused a Hamas detainee in the Sde Teiman detention center – and the abusing soldiers received an overwhelming show of support, which went as far as breaking into IDF bases. However, the harsh conditions under which detainees are held in Sde Teiman have received wider exposure in the Israeli and international press. According to reports, detainees are held in extremely severe conditions: they are confined in large, crowded pens while cuffed and blindfolded; subjected to violence and physical punishment, including beatings, being tied to a fence for long hours, and deprivation of food and sleep; and are also deprived of proper medical care. An indeterminate number of detainees have died in IDF custody.

Should Hamas detainees receive humanitarian treatment, while the trauma of the massacre committed by their organization on October 7 still haunts us? Is it appropriate to secure these detainees’ basic rights, while the rights of the hostages held by Hamas are being violated with each passing moment? There are some whose answer to these questions is affirmative. In their view, even those who are suspected of the worst terrorist acts are still entitled to a minimum of humane treatment, including adequate detention conditions and the right to not endure physical abuse and torture. Securing the fundamental rights of detainees, according to this view, is a moral obligation as well as a legal obligation under Israeli and international law. On the other hand, there are those who claim that respecting the rights of Hamas detainees is a privilege of bleeding-heart liberals: whoever inflicts such harm on the state of Israel is not entitled to humane treatment, and may be harmed in revenge.

And what does the general Israeli public think about the treatment of Hamas detainees? The Institute for Liberty and Responsibility at Reichman University surveyed the views of Israelis through a poll conducted by the online research panel iPanel on August 14-19, covering a representative sample of 1,512 respondents.

Overall, it appears that the majority of Israelis do not support upholding the fundamental rights of Hamas detainees. Only 30% of Israelis believe that detainees should be provided with adequate conditions in terms of living quarters and food. Only 47% of Israelis oppose deliberately inflicting bodily damage on detainees or harming their health. And what about soldiers who intentionally harm Hamas detainees? Only 38% of the public believes soldiers should be indicted for deliberately harming detainees.

The injunction against torture is among the fundamental, sacred norms of international law. However, a majority of Israelis hold that this norm does not apply to Hamas detainees: 66% of the public believes that Hamas detainees may be tortured for interrogation purposes.

The criminal prosecution of Hamas detainees, primarily the terrorists who participated in the October 7 massacre, is expected to be fraught with tremendous difficulties. Israeli legal authorities are still contemplating how to conduct a fair criminal trial for such a huge number of defendants, and to establish the guilt of each and every one of them beyond reasonable doubt. According to the majority of Israelis, there is no dilemma: Hamas terrorists are not entitled to a fair trial. Only 29% of the public believes they should be guaranteed a fair trial which would allow them to defend themselves against accusations.

Our findings also reveal a substantial gap between right-wing voters and center-left voters, whereby the latter show more support for respecting the rights of Hamas detainees. 46% of center-left voters believe that Hamas detainees are entitled to adequate conditions in terms of living quarters and food, compared to 9% of right-wing voters. 67% of center-left voters believe that Hamas detainees should not be deliberately harmed, compared to 29% of right-wing voters who hold this opinion. 43% of center-left voters are in favor of a fair trial for Hamas terrorists, compared to just 11% of right-wing voters. Supporters of center-left parties show more commitment to human rights, however their commitment is selective and qualified.

In summary, it appears that the majority of the Israeli public has rejected the position which calls for securing fundamental rights for all – even for the worst enemies. The position which favors upholding these rights is grounded in multiple justifications: the obligation to act humanely and observe the law, alongside the need to maintain Israel’s international status. However, a majority of Israelis – right-wing supporters but also those in the center-left – opt for revenge instead. Faced with that tough dilemma, this is the easy and emotional choice, yet it goes against the democratic and liberal values of the state of Israel. A democratic society is obliged to provide each person adequate treatment upon detention, and to ascertain their guilt through a fair trial. Even if the blood boils, even if fulfilling these obligations is burdensome and difficult – this is how a true democracy conducts itself.

Prof. Asif Efrat is a senior research associate at The Institute for Liberty and Responsibility, Reichman University.