Washington Report on Middle East Affairs, July/August 1998, Pages 11-13

Jerusalem Journal

Legality of Torture in Israel Debated but Not Decided

By Maureen Meehan

An unprecedented meeting of a nine-judge panel of Israel’s Supreme Court convened May 20 in Jerusalem to examine Israeli security forces’ use of torture during interrogation of Palestinian detainees.

The hearing was based on six petitions filed by human rights organizations and Palestinians who say Israel’s General Security Services (GSS) routinely torture Palestinians during interrogation periods which can last between two weeks and two months, during which time access to an attorney is either severely limited or denied altogether.

The first petition was filed four years ago by the Israeli Committee Against Torture, which argued that the GSS has no authority to use physical force during interrogation, under any circumstances.

Israeli security services have recently admitted to using the following methods of torture: shabah, which involves the tying of hands and feet in painful positions and being forced to sit on a low stool for long periods; the “frog position,” where the interrogee is forced to kneel on his toes with the arms shackled behind him; shaking, in which the interrogator grabs the interrogee by the shirt lapels and shakes him violently so the interrogator’s fists pound the chest of the victim, whose head is being thrown backward and forward. In April 1995, a Palestinian died as a result of violent shaking.

One day prior to the Supreme Court hearing, B’Tselem, an Israeli human rights organization, re-enacted to the press a variety of practices used by the GSS. A shackled Israeli actor with a thick green hood over his head lay on the floor in a variety of painfully contorted positions or was strapped backward across a small table or on a tiny stool tilted forward.

Palestinian interrogees have stated they have been left for days at a time sitting in the shabeh position with urine-drenched hoods on their heads while being blasted with cold air and loud music and deprived of sleep.

Slapping, kicking, beating and threats to family members are also common practice.

B’Tselem estimates, based on official sources, attorneys and other researchers, that the GSS interrogates between 1,000 and 1,500 Palestinians per year and that 85 percent of them are subjected to methods that constitute torture.

In the past decade, 10 Palestinians have died as a result of GSS interrogation, B’Tselem said, and hundreds of others have been left physically handicapped.

Representing the Israeli government position was state attorney Shai Nitsan, whose argument rested on the contention that GSS interrogators who apply shaking and other “physical methods of interrogation” are protected by the “defense of necessity clause,” which exists in most legal systems around the world and protects an individual who breaks the law in order to avert a greater danger, thus acknowledging the criminality of their methods.

Nitsan argued that measures such as hooding, sleep deprivation, shackling, and playing loud music were not illegal at all, but conceded that if these methods are applied for a long time, they would similarly be covered by the defense of necessity. He cited the often-repeated example of a “ticking bomb” and insisted that planned Palestinian suicide bombings and kidnappings have been foiled by Israeli agents based on information squeezed out of detainees.

“The Shin Bet [Israeli intelligence agency] is fighting terrorism,” Nitzan told the crowded courtroom, the first row of which was full of Shin Bet interrogators. “This is a war—a man in custody could be dangerous and carry out further attacks. So how can you forbid the use of physical pressure against a concrete threat?”

The Shin Bet presented its own proposal to the Court to allow it to employ “special interrogation methods” sanctioned under Israeli law since 1987, when former Supreme Court President Moshe Landau ruled to permit the Shin Bet to apply “moderate physical pressure” to suspects.

However, human rights groups say torture is not exclusively reserved for detainees suspected of direct involvement in violent activity, but rather is routine and systematic.

“These methods are used massively against Palestinians, many of whom are later found to be innocent of any crime,” said Eddy Kaufman of B’Tselem.

Yuval Ginbar, chief Israeli researcher for B’Tselem, said it was shocking that Israel “which strives to be a part of the ‘West,’ admits to using torture on Palestinian detainees. Israel should come out of the Dark Ages and join the world’s democracies,” he said.

Israel’s insistence that its “special methods” do not constitute torture was recently disputed when the U.N. Committee Against Torture characterized Israel’s interrogation techniques as torture and condemned the Jewish state for violating the International Convention Against Torture, to which Israel is a signatory.

Following a full day of intense debate, the Supreme Court did not rule on the petitions but indicated that it was the Israeli parliament’s responsibility to legislate on the legality of the interrogation methods rather than leaving the Supreme Court, in the words of one judge, “to bear the cross on this Via Dolorosa.”

Israeli Attorney Lea Tsemel, who represented one of four Palestinian petitioners challenging the practice before the Supreme Court, said she was encouraged that for the first time the judges tackled the fundamental issues involved.

“The good news is that the court is making a very strong statement that they are not going to automatically approve these methods,” Tsemel said.

Nevertheless, she and other attorneys complained that the courts almost always rule in favor of the Shin Bet by refusing to issue temporary injunctions against mistreatment in individual cases. In fact, previous cases have never gotten this far. There is little public outcry in Israel over the widely reported use of torture on Palestinian detainees. Many Israelis say they feel the Shin Bet should have a free hand in preventing terror attacks.

Allegra Pacheco, an Israeli attorney representing the Palestinians, said she was disappointed that the court refused to take a stand and thereby condoned the use of torture by shifting the debate to who will be tortured rather than whether it should be legalized or banned altogether.

“This is not a new issue. The debate has been going on for several years and always ends up in a discussion over technicalities,” said Pacheco.

“And now, everyone has gone home and the issue is still undecided. And with no temporary ban on the use of physical force while the debate continues, Palestinians are still being tortured. This could only happen in Israel.”

Pacheco explained that the Israeli Supreme Court has a responsibility to act independently and impartially to decide on the lawfulness of actions, such as torture, against Palestinians.

“The Supreme Court is obliged to come to a decision on these cases and to decide in accordance with law to prohibit torture, to ban it completely and to find the Shin Bet guilty of criminal acts.”

“Unfortunately, the Supreme Court of Israel has repeatedly acted as an instrument of Israeli government policy and ultimately sanctions unlawful human rights violations,” added Pacheco.

Abed al-Ahmar, a 31-year-old Bethlehem resident, was recently released from his fifth stint in an Israeli prison—not an uncommon situation for a West Bank or Gazan Palestinian. Following 60 days of what can only be described as grueling and inhumane treatment, Al-Ahmar refused to sign a prepared confession presented to him by his Shin Bet interrogators. As a result he was sent to “administrative detention,” where he was held for two-and-a-half years without charge or trial.

“In some ways Israel’s use of torture backfires: it makes the Palestinians more resolute in their struggle and casts a dark cloud over the state of Israel,” said Al-Ahmar.

“The problem, which is our problem now, it that so many Palestinians have been adversely affected physically and/or psychologically by Israeli methods that it has driven some people to extremes. There are many who need treatment,” Al-Ahmar told the Washington Report.

“But the people really in need of treatment are the Israeli interrogators and torturers,” he said, “who are very twisted human beings.”

SIDEBAR

Within the Peace Camp, Shimon Peres and Leah Tsemel Have Diametrically Opposed views of Israel-Palestine as Two States or One Binational State

Two prominent Israeli citizens, former Prime Minister Shimon Peres and human rights attorney Leah Tsemel, talked to the Washington Report about their personal and political views on the occasion of the much publicized anniversary of the formation of the state of Israel.

The former, having been there at the very beginning, discusses Israel’s achievements, which he considers his own, and the latter speaks openly about her homeland’s severe mistakes in dealing with the issues Israel has become known for over the years: human rights violations, land theft and the clever ability to revise the facts before the world community.

Peres sees the establishment of the Israeli state as the “rebirth of a people who were dispersed, lost. They returned to their historic homeland and infused it with new life. They formed a state in which democratic freedoms were observed, even in wartime; they founded an independent legal system and formed impressive education, industrial and agricultural systems that rival most developed nations.”

Shimon Peres was indeed present at the making of history and sees himself as an authority on what happened and why. Israel’s 50th anniversary, which Palestinians refer to as “al-nakba,” or catastrophe, is attracting enormous attention both here and abroad and has thrown open the discussion of how it all happened and whether it was done correctly.

Not only are the Palestinians challenging the official version of events in that they too were present at the making of history, there is an Israeli phenomenon known as the new historians who, in Peres’ words, are a bunch of “intellectual dandies” bent on revising the traditional belief that Jews were “a people without a land” who sought and found “a land without people.”

Commemorative events in Israel, which have been underway full-blast all year, include a television series, one program of which caused such controversy that the director resigned. The program in question was a relatively factual presentation about the 1947-48 destruction of Palestinian towns, massive displacement of Palestinians to refugee camps in surrounding countries and further displacement following the 1967 Six-Day War. With the exception of this show, the series was a lofty, nationalistic pageant of Zionism and Israeli accomplishments.

Debate and bitter controversy among Israelis around the program, which constituted only a fraction of the long series, brought on a shocking display of historical revisionism that verges on a nearly sociopathic exercise in denial.

Peres, however, does not totally discount the role of historians, so long as they tell it his way. Asked whether he regrets his decision to allow early West Bank Jewish settlements to become permanently residential in view of their initial purpose to serve as temporary military outposts, he replies:

“I can’t change history and I don’t have any regrets. I’ll have to leave it to the historians to tell the story.”

Since the 1993 signing of the Israel/ PLO peace accord, Jewish settlements have grown 40 percent in population, from 100,000 to 140,000, and, despite the so-called “building freeze” supposedly observed by the former Labor government, there was massive expansion which is still underway as the current Likud government stalls for time in the dysfunctional peace process.

Speaking of regrets, Peres said there was no other way to have founded and created the state of Israel as a home for Jews other than to displace the native Palestinian population.

“Our main objective was to save Jews from the Nazi camps and non-Jewish states refused to receive them,” said Peres who went on to explain why Jews and Palestinians cannot and should not share this land.

“What is happening now is clear: the Palestinian entity is becoming a Palestinian state and it is the best solution. We have today 4 million Arabs and 4.7 million Jews and the choice is clear: either put them in one state that will be neither Palestinian nor Jewish, but binational, which I think will be a binational tragedy, like Bosnia. They should have two separate states. A binational state would force the Israelis to stay armed against the Palestinians, whose bitterness could lead to terrorism.”

WRMEA: Why would it result in a bi-national tragedy?

Peres: “Because the two nations do not want to live together.”

WRMEA: But they already do live together.

Peres: “And look what’s happened.”

WRMEA: But if the Palestinians had equal rights…?

Peres: “They cannot have equal rights.”

WRMEA: Why?

Peres: “Because we are not equals.”

WRMEA: Why?

Peres: “The Arabs have 24 states and the Jews have just one state in the world. And for that reason, this Jewish state permits Jews to come in. We cannot give the same rights to the Palestinians. We would lose our Jewish majority and there wouldn’t be a Jewish state.”

Pressed on how a Palestinian state can possibly exist under the current peace deal which has provided for less than 5 percent of Palestinian land in the West Bank to be evacuated by Israeli occupation forces, allows Israel to maintain control of all international borders as well as Palestinian travel within the West Bank, keeps Palestinians out of Jerusalem, and allows them no direct access to international trading partners, Peres thought the question was irrelevant.

“Let’s not go into detail. Eventually the problem will be solved,” he said, trying to be reassuring. “There is a compromise somewhere in the middle of 90 percent of the West Bank that Arafat wants and 9 percent that Netanyahu wants to give him.”

Leah Tsemel is not convinced it will be quite so easy, nor does she believe peace through separation is a viable, long-term solution. “The best solution would be one state with equal rights for everyone. I know that would be a difficult option for the moment but it is the only way to live together.”

Tsemel rejects the traditional Israeli argument that a Jewish state must exist in order to protect Jews against the possibility of future suffering and insecurity.

“Yes, the Jews suffered, but so what? The Palestinians did not cause our suffering. Now we are in a situation in which we are causing suffering,” she said.

“The way Palestinians were uprooted, I don’t think can be forgotten…Unless we admit the wrongs and plead guilty to the charges, we will never be a normal country.”

Tsemel is among the few Israeli attorneys who defend Palestinians. Her cases include torture/interrogation, land confiscation, house demolition conflicts, and residency and other human rights issues. Having finished her law degree in Jerusalem, she was in the army in 1967 when the Six-Day War broke out and the eastern part of the city and the West Bank were captured from Jordan.

“They immediately began to bus people out of the city, deport Palestinians from towns and villages, three of which they destroyed along with numerous Arab homes after they ran people out,” Tsemel said.

“They were creating facts on the ground while people were still in shock. It was only international pressure that stopped Israel from transferring even larger sectors of the Palestinian population than it did.

“They immediately planted the seeds of hatred and arrogance that still exist today,” she added.

Tsemel said she felt ashamed of Israel and it was that shame that drove her to chose her career path. “I am morally obliged as an Israeli to defend Palestinians against the atrocities that have occurred during this long and ongoing occupation—it is the least I can do.”

While former PM and peace negotiator Peres thinks Israel is going down the right path to peace through separation, Tsemel believes Israel is heading down the road to destruction.

“We are going in all the wrong directions. The peace accord, even if it was being implemented, which it’s not, does not give the Palestinians their equal rights, their property rights, their human rights…so it is bound for failure and we’re already seeing it.

“I suppose you can say that Israel has realized its dreams after 50 years: it dreamt of forming a Jewish state and it has, it dreamt of being a powerful state and it is, it dreamt of economic freedom and it can compete with Europe or America in some areas. But look around, we are a nation full of police and soldiers and yet no one feels safe and secure. Israel can’t be free as occupiers.

“People talk about how young Israel is and how much it has accomplished, but personally, I see Israel today as an old, ugly, rich prostitute,” said Tsemel. “We never formed part of the Middle East; we were too busy creating new enemies and we haven’t changed.”—M.M.