After High Court’s Ruling Against Torture, Will Israel Stop Breaking Its Own Laws in the Name of Security?

By Sherri Muzher

The Israeli High Court’s recent ruling that the use of physical force by Shin Bet security service interrogators is now banned was welcome news for Palestinian and Lebanese detainees in Israeli-administered prisons. Shin Bet methods have included violent shaking, handcuffing suspects in painful positions, placing sacks caked with vomit and urine over their heads, depriving them of sleep, and blasting loud music into their ears.

However, the ruling also should be greeted with some caution. At the same time it banned physical coercion, the High Court noted that the state still has the right to defend itself. If Shin Bet interrogators believe they must torture a suspect to reveal the location of a “ticking bomb,” the torturer could be put on trial, but a court might accept the argument that physical force was necessary. In other words, security—the reason for legalized torture in the first place—could still be invoked as rationale.

Affording the suspect any dignity somehow represents a step back for Israel’s security.

Further and more worrisome was the announcement of right-wing lawmakers that they would introduce legislation which would soften the High Court’s ruling—within two days of the ruling itself. Even Prime Minister Ehud Barak reportedly was disappointed in the High Court’s ruling.

Deputy Defense Minister Ephraim Sneh formally criticized the ruling, stating that it would hamper Shin Bet’s operations. “The moment the suspect knows he is backed by such a weighty ruling, he can very easily hide behind this legal screen,” Sneh charged.

His explanation is premised upon the pervasive assumption that suspects are always guilty. Thus, affording the suspect any dignity or freedom from humiliation somehow represents a step back for Israel’s humanity and security. It is this kind of mentality which has generally been used to justify and circumvent basic international human rights laws, and even Israel’s own penal code.

Israel has unequivocally focused on security, while ignoring the rights of Palestinians to self-determination. While Israel’s High Court of Justice has finally issued a ruling that brings Israel in line with the Western democracies it likes to compare itself to, it is important to consider the High Court’s prior readiness to accept, too easily, the Israeli government’s preoccupation with security. In fact, many actions taken in the name of security have won the overwhelming support of Israel’s judiciary and other key branches of government, even when the actions clearly have been unreasonable. Consider the following examples of Israeli security measures:

Israeli security forces forced 15 Palestinian women, ranging in age from 20 to 69, to undress from head to toe in the presence of women soldiers and/or policewomen. In two instances, women were required to undress in full view of a male police officer. Thirteen children, aged one month to 14 years old, were also undressed. In some cases women were compelled to undress in front of their relatives, their children and other children. Screams, curses, and beating accompanied the order to undress in several cases. (Sexual Harassment in the Name of the Law: Violence and Degradation During Searches of Palestinian Homes in Hebron, B’Tselem, December 1996.)
Sonia Sawafta, a Palestinian mother, was turned away repeatedly during one of Israel’s closures. Her newborn baby girl was undergoing throat surgery alone in a Jerusalem hospital. After a week of being turned away at Israeli army roadblocks, the 20-year-old newly delivered mother finally sneaked into Israel, trekking 35 miles on dirt paths and back roads from her northern West Bank village of Tubas. (Crashing the Closure Associated Press wire service, Aug. 7, 1997.)
The Israeli military ordered the demolition of homes based on the Emergency Law of 1945, and argued that alleged bombers had lived in the homes just before committing their bombings. The destruction of these homes made homeless over 40 people, including elderly parents over the age of 70 and several babies less than a year old. One of these homes had a store on the ground floor, and was the only source of income for the family. The homes’ demolitions were ordered for “security and deterrent” reasons, to punish the families and to destroy the homes where the attacks were allegedly planned. (LAW Submits High Court Petition Against House Demolitions in Asira Al Shamaliya: Over 40 People Left Homeless, LAW—The Palestinian Society for the Protection of Human Rights and the Environment, Oct. 27, 1997.)
The Israeli government froze the transfer of taxes and customs duties it collects for the Palestinian Authority after a double suicide bombing on July 30, 1997. Secretary of State Madeleine Albright specifically criticized Israel for withholding the Palestinian funds, which provide almost two-thirds of the Palestinian Authority’s budget. “It is beyond my understanding where withholding money is a security issue,’’ Ms. Albright said. “On the contrary, it makes it more difficult to have the kind of political environment that is necessary for this partnership to go forward.’’ Much of the tax revenue is used to pay the authority’s 80,000 employees. (Serge Schememann, “Israel is to Release More Money Owed to Palestinians,” New York Times, Sept. 15, 1997.)

Treaty Violations

In taking such inhumane and irrational actions, Israel routinely violates the treaties it has signed, which it is legally bound to observe. For example, the U.N. Convention on Torture states unequivocally that “torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” In 1991, Israel ratified the Convention.

Further, Article 4 of the Convention states: “Each state party shall ensure that all acts of torture are offenses under its criminal laws. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.”

The Israeli Penal Code of 1977 does, in fact, address the issue of torture in language which clearly made the use of “Moderate Physical Force” by Shin Bet interrogators illegal. Section 277 states:

“A public servant who commits one of the following is liable to imprisonment for three years:

(1) uses or directs the use of force or violence against a person for the purpose of extorting from him or from anyone in whom he has interest a confession of an offense or information relating to an offense;

(2) threatens any person, or directs any person to be threatened, with injury to his person or property, or to the person or property of anyone in whom he has interest, for the purpose of extorting from him a confession of an offense or information relating to an offense.”

Nevertheless, in blithe disregard of Israel’s own law against torture to extract confessions from prisoners, the High Court of Justice had repeatedly ruled in the past that such physical pressure was necessary in cases dealing with security.

The rationale for allowing such physical pressure could be found in the basic guidelines on interrogation set by the Landau Commission of Inquiry. The commission, headed by a former Supreme Court president Justice Moshe Landau, was appointed following a decision of the Israeli government in 1987 to examine the General Security Service’s (GSS) methods of interrogation of terrorist suspects.

According to the Israeli government, the Landau Commission envisioned its task as defining “with as much precision as possible, the boundaries of what is permitted to the interrogator and mainly what is prohibited to him.” The Commission determined that in dealing with dangerous terrorists who represent a grave threat to the State of Israel and its citizens, the use of a “moderate degree of pressure,” including physical pressure, in order to obtain crucial information, is unavoidable under certain circumstances. Such circumstances included and implicitly continue to include situations where the suspect possesses vital information on a terrorist organization which could not be uncovered by any other source (e.g., locations of arms or explosive caches or planned acts of terrorism).

Such interrogations obviously produce confessions, since the suspect is aware that unless he or she confesses to something, anything, intolerable pain, or death, will ensue. And it is a matter of record that suspects are then convicted and sentenced in Israeli courts solely on the basis of such coerced statements.

This only demonstrates that by permitting interrogators to extract confessions through torture, the Israeli government and its High Court of Justice are in violation of the U.N. Convention Against Torture, as well as Section 277 of the Israeli Penal Code. In each such case brought before the High Court, the court ruled that it was the extension of the executive branch and that the physical pressure was necessary to protect the security of Israel.

The Israeli government has therefore ruled that “the use of such moderate pressure is in accordance with international law.” It is difficult to understand this reasoning considering the fact that it is the international community which has strongly condemned Israel for repeatedly violating the human rights of Palestinian and Lebanese prisoners. Moreover, one must question how “moderate” was the pressure if this pressure resulted in deaths.

Finally, it is important to note that of the Palestinians detained and tortured, 80 percent are never indicted for a crime.

The debate over the use of torture ascended beyond Israel’s human rights activists. The Shin Bet methods of investigation came under particular fire by its legal community. On the one hand, some attorneys defended the High Court’s prior ruling that where an irreconcilable conflict exists between a fundamental freedom and state security, security prevails because it represents the central value in the “totality of values of a legal system.” Other Israeli attorneys argued that at stake, rather, was the torture of a suspect, aimed at forcing him to reveal information against his will, and the danger to the whole legal system and society which would result from permitting the use of force in the course of interrogations.

“Both the interrogator and society are corrupted,” declared Israeli attorney Mordechai Kremnitzer. “Just as the person interrogated loses his self-confidence, so the interrogator learns to treat suspects—whose body and will are placed in his hands—as means and object, as subhuman or even non-human.”

Security versus Dignity

While the security of Israel is understandably a concern, one would think that the Israeli government would see a direct link between “terrorist” acts and continued oppression. Take, for example, the situation where four moshav and kibbutz residents tied up and tortured two Palestinian youths who they claimed stole tomatoes from their fields. Both youths were seriously injured. One had cigarette burns on his neck, and was unable to walk because of injuries to one of his legs. But after questioning the four Israelis were released without further charges.

In another high-profile case that enraged many, four Israeli soldiers were fined the equivalent of one agora (less than one American penny) each for the wrongful death of an 18-year-old Palestinian youth. There are many such cases of Israeli settlers and soldiers injuring Palestinians with impunity, even when the victims are small children.

The effects of such unpunished violence by Israelis on both Palestinian children and their parents cannot be overstated. The fathers develop depression, paranoia, anxiety, and post-traumatic stress, causing many to behave violently toward their families. According to an annual report on human rights violations against Palestinians, a U.N. independent investigator reported that children whose fathers had served time in Israel’s jails have an inability to relate to parents, teachers, and other children. And tens of thousands of Palestinian children suffer from post-traumatic stress disorders (50,000 in Gaza alone). The children are more aggressive, disobedient and violent, their dignity is affected and their self-esteem is low.

Conclusion

There is no question that Israel faces security problems, though most would argue that Israel brings them upon itself by repeatedly violating the basic human rights of Palestinians living within its borders or under its military occupation. But the threat to security does not justify breaking humanitarian laws. Individuals have the fundamental right to live free from torture and other forms of cruel and degrading treatment.

It must be reiterated that in the large majority of cases, Palestinians and Lebanese who were interrogated and tortured were released, sometimes after months of “administrative detention,” without being prosecuted for any crime. In other words, there are countless individuals who have been asked to deliver information they do not possess through the use of torture; the result being zero gain for Israel’s security and complete humiliation and loss of dignity for the suspect.

The High Court of Justice may finally be demanding more accountability from the internal security watchdogs of Shin Bet. However, the possibility that potential legislation may soften the High Court’s ban on torture requires that the Israeli Knesset take a leadership role in abiding by the High Court’s ruling, as well as international laws which prohibit the use of torture to extract confessions. If the Israeli Knesset doesn’t wish to abide by the ruling and international law, it need only abide by its own Israeli Penal Code. It is time for the Knesset to reconsider breaking laws in the name of security. And it is high time for Israeli society, in general, to reflect on the barbaric behavior of its security interrogators that to date has been so widely accepted by the Israeli public. Without a profound change in the attitude of Israelis toward the people they occupy, it is questionable how effective this long-overdue ban on torture will prove to be.

Sherri Muzher is a law student at Michigan State University Detroit College of Law.