Tuesday, 26 June 2001

Association for the Prevention of Torture

Dear Sir or Madam:

June 26th is the day on which the international community chooses to
remember victims of torture. Tragically, some of those victims die.
Some manage to survive. Yet, all of them demonstrate strength in the
face of incredible inhumanity.

It is appalling that torture continues to be such a prevalent crime in
the third millenium. More incredible still – yet not any less true - is
the fact that a member of the international community is debating the
merits of legalizing torture.

That member is the state of Israel.

On 6 September 1999, the Israeli High Court of Justice (IHCJ) responded
to a petition regarding the use of physical means by Israel’s General
Security Service (GSS) interrogators. Admittedly, GSS officials had
used physical means, such as violent shaking, the Shabah position (which
places the individual in a contorted and painful seated position),
hooding, the playing of incredibly loud music, and sleep deprivation, in
their interrogations of Palestinian detainees. The IHCJ rightly held
that these physical means of interrogation “impinge upon the suspect’s
dignity, his bodily integrity and his basic rights beyond what is
necessary” and are consequently forbidden.

The Court appropriately recognized Israel’s international commitment to
prohibit the use of torture, cruel and inhuman treatment, and degrading
treatment. The President of the IHCJ stated that “[t]hese prohibitions
are ‘absolute.’ There are no exceptions to them.” (para. 23)

Yet, in the same judgement, the Court proceeded to contradict its
earlier endorsement of the absolute nature of the prohibition of torture
by declaring that “[i]f the State wishes to enable GSS investigators to
utilize physical means in interrogations, it must seek the enactment of
legislation for this purpose.” (para. 37) So while initially
acknowledging the absolute prohibition of torture to which Israel is
internationally bound, the IHCJ later suggested that an Israeli national
law legalizing torture would suffice to empower GSS interrogators to use
physical force in their interrogations.

This appalling decision serves as an invitation to the Israeli
government to pass legislation to formally institutionalize the practice
of torture by GSS interrogators. And, in fact, the Israeli government
has actively courted this idea.

On 15 September 1999, the Ministerial Committee for GSS Affairs, headed
by then Prime Minister Ehud Barak, struck a commission to “find a lawful
solution to the use of physical force in interrogations of terrorist
suspects, where there is an immediate security danger (‘ticking bomb’).”

Three bills regarding torture were submitted to the Knesset, two seeking
to prohibit its use and another one seeking to legalize it. Notably,
this last bill, submitted to the Knesset by Reuven Rivlin and signed by
over a third of Knesset members, proposed to allow GSS interrogators “to
use special methods in interrogating [a] person, including means that
entail the use of physical pressure on his body,” where there is
reasonable suspicion that that person has information, which, if
immediately revealed, could prevent an immediate danger to state
security. On 15 February 2000, then Prime Minister Barak agreed to
freeze all legislation related to torture for the following year or two.

Furthermore, it was reported that the Israeli Attorney General issued a
statement that he would not prosecute GSS interrogators who act “for
indispensable need during the course of interrogation” - referring to
torture - in individual cases. While the Attorney General stressed that
he did “not have power in advance to allow interrogators to … adopt
physical measures during the course of interrogation”, his former
statement speaks of his willingness to not prosecute GSS interrogators
who engage in physical force against detainees as part of their
‘interrogation methods.’

Thus, the present state of the law on torture in Israel is the
following: Physical means of interrogation are forbidden for the time
being due to the pronouncement by the IHCJ on 6 September 1999, yet that
same ruling has paved the way for the Israeli legislature to sanction
the use of torture by its GSS interrogators.

Notwithstanding the fact that the IHCJ’s decision rendered the use of
torture unlawful for the moment, there is strong evidence that physical
means are still being used by GSS officials in their interrogations of
Palestinian detainees. PCHR and other human rights organizations have
documented dozens of cases in which GSS interrogators subjected
Palestinian detainees to various forms of torture since 6 September
1999.

One such example involved a Palestinian who was detained earlier this
year for a period of at least two weeks. On 29 January 2001, Nsser
Masoud Ayyad was picked up by Israeli soldiers near the Jewish
settlement of Netzarim in the Gaza Strip. According to his affidavit,
Ayyad was beaten in the face by three Israeli investigators at the
settlement before being transferred to Ashkelon prison in Israel.
During the first week of his detention, he was told by the investigators
that they had permission to use physical means to extract information
from him. Ayyad was deprived of sleep by the investigators for an
entire week. One of the investigators stood on Ayyad’s handcuffs to
apply painful pressure on his wrists, which became swollen as a result
of the pressure. Another investigator applied serious pressure to
Ayyad’s neck with his hands, making it painful for him to swallow.
Ayyad was forced into the Gambaz position, which requires the victim to
be seated on a small chair with feet and hands bound such that his
forehead touches the floor. As a result of these ‘interrogation
methods’, Ayyad periodically lost consciousness. In the second week of
his detention, the light from an overhead projector was shone on his
face during an entire night, after which Ayyad suffered burns to his
face.

Since the IHCJ’s decision, other methods, distinct from those
specifically mentioned in the judgement, have been used by Israel to
extract information from Palestinian detainees. For instance, the
lawyers of detainees have been denied access to their clients, often for
months at a time, providing an illegal disadvantage for detainees during
their interrogations and time for evidence of torture methods to heal
themselves, especially those that leave no physical scars. When these
lawyers petition the IHCJ for permission to meet with their clients,
that permission is commonly refused. In such circumstances, the IHCJ
itself is exacerbating the practice of physical means against
Palestinian detainees.

In addition, the GSS works with Palestinian collaborators who masquerade
as fellow detainees within detention facilities to pressure Palestinian
suspects into revealing information to them. That pressure can take the
form of threats of violence and actual beatings by the Palestinian
collaborators.

In Talmond Prison, in the north of Israel, Palestinian detainees below
the age of 18 are imprisoned with Israeli criminal young offenders.
These young Palestinians are left to fend for themselves against
violence of all kinds committed by the common law criminals.

As the matter presently stands, Israel has failed both legally and
practically to live up to its international obligations under the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment (1984). The IHCJ decision of 6 September 1999 does not go far
enough to bring Israeli law in line with Israel’s international
obligations:

1. The IHCJ has invited the Israeli legislature to make a choice about
torture, one of its options being the legalization of physical methods
of interrogation. Such an invitation hardly satisfies Israel’s positive
obligation under Article 2(1) of the Convention, which obligates State
Parties to “take effective legislative, administrative, judicial or
other measures to prevent acts of torture.” Israel’s failure to enact
legislation to expressly prohibit the use of physical means against
detainees is, in itself, a failure of its international obligation. By
expressly leaving this legislative avenue open to the Knesset, the Court
has managed to add a dangerous new facet to Israel’s pre-existing
failure to abide by conventional law.

2. Israel is further bound to ensure that all acts of torture, without
exception, are offences under its criminal law and that the “competent
authorities proceed to a prompt and impartial investigation, wherever
there is reasonable ground to believe that an act of torture has been
committed.” The Israeli Attorney General’s statements to the effect
that he may opt not to prosecute GSS interrogators who resort to
physical means in circumstances that they deem ‘necessary’ threatens to
undermine Israel’s obligations under Articles 2(1), 4(1) and 12 of the
Convention. While the Attorney General refuses to give advance
permission to GSS interrogators to use physical force against
Palestinian detainees, he has reiterated that he may effectively ‘turn a
blind eye’ if interrogators individually choose to employ physical means
against detainees in some circumstances.

3. Israel has further failed to provide compensation and rehabilitation
to the thousands of Palestinian detainees against whom physical means of
interrogation have been routinely and systematically used. By failing
to do so, Israel has breached its obligations under Article 14 of the
Convention. It is noteworthy that the IHCJ deliberately refrained from
addressing these issues in its decision of 6 September 1999.

4. Israel has also failed to ensure that statements made under torture
are not adduced as evidence in any proceedings, as per Article 15 of the
Convention. On this subject, the IHCJ remained silent as well. It is
Israel’s obligation to re-examine the files of the thousands of
Palestinian prisoners whose convictions involved evidence extracted by
torture and to re-try and/or release those individuals.

On this day, the Palestinian Centre for Human Rights would like to do
more than to remind the international community of these breaches of
international law by the state of Israel. PCHR calls upon the
international community to use any and all effective means at its
disposal to enforce Israel’s international obligations under the
Convention. It is Israel’s legal obligation to ensure the prohibition
of torture both in law and in practice, and it is the international
community’s moral obligation to see that Israel does so. It is high
time to hold Israel accountable for its illegal practices against
Palestinian detainees. Let’s make June 26th more than a symbolic
gesture of support for the victims of torture.

Sincerely,

Raji Sourani
Director General, PCHR