Mission & Name
US Foreign Policy (Dr. El-Najjar's Articles)
Israeli Unaccountability and Denial:
Suppressing the Practice of Torture
By Stephen Lendman
Al-Jazeerah & ccun.org, March 1, 2010
The Public Committee Against Torture in Israel (PACTI -
stoptorture.org) "believes that torture and ill-treatment of any kind and
under all circumstances is incompatible with the moral values of democracy
and the rule of law." Yet it's systematically practiced by the Israeli
Police, General Security Service (GSS), Israeli Prison Service (IPS), and
Israeli Defense Forces (IDF).
In December 2009, PACTI published its
latest report titled, "Accountability Denied: The Absence of Investigation
and Punishment of Torture in Israel," explaining "the many layers of
immunity that protect" the guilty, specifically the GSS, the focus of this
Immunity insures that GSS interrogation torture and abuse
complaints never become criminal investigations, indictments, or legal
hearings. Israel's State Attorney and Attorney General assure it "under a
systemic legal cloak" giving torturers "unrestricted protection."
Since 2001, victims submitted over 600 torture complaints to authorities.
None were investigated - "the first step" before indictments, prosecutions,
and convictions. As a result, GSS interrogators have blanket immunity to
operate freely "behind closed doors (making) torture an institutionalized
method of interrogation in Israel, enjoying the full backing of the legal
system." As in America, torture is official Israeli policy.
in Israeli Law - A Barrier of Loopholes
Israel's Supreme Court
ruling in Public Committee against Torture in Israel et al v. the Government
of Israel et al (the HCJ Torture Petition) established the current legal
basis, even though international law prohibits it unequivocally, at all
times, under all conditions, with no allowed exceptions - a matter
universally binding even on non-signatory states. Israel, however, signed
and ratified the 1984 Convention against Torture. Yet no Israeli law
explicitly bans it, except for several provisions relating to torture,
including assault, abuse of defenseless persons, and the explicit
prohibition of force or threats by a public employee toward interrogees.
However, Israeli court rulings ban torture, and the Supreme Court
interpreted the Basic Law: Human Dignity and Liberty to mean torture is
unacceptable and prohibited. Earlier, "psychological pressure (and) a
moderate degree of physical pressure" were permissible, based on the Landau
Commission's recommendations that GSS interrogators may commit such acts on
the basis of necessity.
The Commission condemned the practice but
approved using it to obtain evidence for convictions in criminal
proceedings, saying coercive interrogation tactics were necessary against
"hostile (threats or acts of) terrorist activity and all expressions of
This notion protects defendants in a
criminal trial "for an act that was required in an immediate manner in order
to save his life, liberty, person, or property or those of another from
danger of grave injury accruing from a given situation at the time of the
act when he had no course of action other than to commit this act."
In its 1999 ruling, Supreme Court President Aharon Barak established a
milestone in the struggle against torture by recognizing its prohibition in
international law, calling it "absolute (with) no exceptions and no
Yet the High Court of Justice (HCJ) legitimized coercive
interrogations in three 1996 cases - by plaintiffs Bilbeisi, Hamdan and
Mubarak for interim injunctions against abusive GSS practices. Ones cited
included violent shaking, painful shackling, hooding, playing deafeningly
loud music, sleep deprivation, and lengthly detainments. After due
consideration, the HCJ ruled painful shackling illegal, but not the other
The Court's 1999 ruling went further, but equivocated by
adding loopholes to allow torture, so effectively its prohibition was empty.
Although it reversed the Landau Commission's recommendations, it ruled that
pressure and a measure of discomfort are legitimate interrogation
side-effects provided they're not used to break a detainee's spirit. It also
sanctioned physical force in "ticking bomb" cases, in violation of
international laws allowing no exceptions ever. Moreover, Israeli security
forces routinely claim detainees are security threats enough to justify
In his ruling, Court President Barak
justified physical force to save lives, saying interrogators may employ the
"necessity defense" to justify them. In so doing, he authorized sweeping use
of the most abusive practices, while at the same time prohibiting torture
"absolute(ly with) no exceptions and no balances."
The Court let
"the Attorney General....guide himself concerning the circumstances (to
assure) interrogators who are alleged to have acted in an individual case
from a sense of 'need' are not to be prosecuted." These guidelines thus
"serve as a priori authorization" to practice torture freely. In other
words, the Court wanted to "have its cake and eat it too: to declare an
absolute prohibition of torture," yet let it continue.
Despite the Israeli High Court's equivocal position,
international law prohibits torture under all conditions with no exceptions.
The notion of "no other alternative" is false, disingenuous, criminal, and
illogical as experts say torture doesn't work and isn't used for
The US Army Field Manual 34-52 Chapter 1 says:
"Experience indicates that the use of force is not necessary to gain the
cooperation of sources for interrogation. Therefore, the use of force is a
poor technique, as it yields unreliable results, may damage subsequent
collection efforts, and can induce the source to say whatever he thinks the
interrogator wants to hear."
US experts, including generals, CIA and
FBI interrogators, diplomats, politicians and others concur. So do foreign
officials and Israeli experts. Yet the practice persists, not for
information but to abuse and punish maliciously. The "necessity" rationale
is a red herring.
Yet shortly after the HCJ's ruling, Israel's
Attorney General and State Attorney's Office Criminal Department head
published two key documents:
"GSS Interrogations and the Necessity
Defense - A Framework for the Discretion of the Attorney-General (and)
Circumstances in Which GSS Interrogators Who Acted out of a Sense of 'Need'
Are Not to be Prosecuted."
They establish guidelines authorizing
abusive practices to gain "vital information to prevent tangible danger or
grave injury to state security or to human life, liberty, and integrity, and
when there is no other reasonable means in the circumstances of the matter
to prevent this injury, the Attorney General will consider refraining from
instigating criminal proceedings."
In other words, anything goes,
anytime, for any reason under the "necessity defense" even though torture is
justified nor does it work.
Yet in 2006, a GSS interrogator told
Haaretz writer Nir Hasson that "authorization to use force in interrogations
is given at least by the head of the interrogation team, and sometimes comes
directly from the head of the GSS."
GSS, in fact, openly admits
that a priori permission is granted for it - the result of legal loopholes
permitting it in violation of international law.
Torture, Lies and
The Officer in Charge of GSS Interrogee Complaints
(OCGIC) is responsible for handling them together with his counterpart in
the State Attorney's Office. Yet Israel has no policy for responding and one
in place undermines the process.
GSS' "culture of lying" began with
the April 1984 "Bus (or Kav) 300" affair referring to a bus highjacking by
Palestinians and the allegation that GSS agents executed two of them taken
captive. A secret commission was appointed to investigate. Those testifying
lied. The commission determined that blows to the head killed the two
detainees, but no one was held responsible.
GSS head Avraham Shalom
claimed he acted "with authority and permission." Prime Minister Yitzhak
Shamir said nothing, but President Chaim Herzog pardoned four GSS official
to quash further actions - the first time in Israeli history that the
president pardoned someone before being tried and convicted, even though the
investigation revealed lawless acts including torture.
other findings led to the Landau Commission's formation and its revelations
that GSS personnel lied to courts, denied using torture, and the coverup
included top officials, mindful of their lawless acts. The Commission quoted
an internal 1982 GSS memorandum instructing interrogators to lie, yet
recommended no criminal action.
Public discussion, however, led to
two amendments to the Police Ordinance - Amendment No. 12 in 1994 and No. 18
in 2004. The first one extended Police Investigation Department (PID)
authority to include investigating GSS employee offenses during or in
connection with interrogations.
The second one allowed
investigations of all suspected GSS offenses in the performance of their
duties, including those unrelated to interrogations. However, while police
personnel investigations are submitted directly to the PID, the Attorney
General must authorize whether GSS ones will be sent there. As a result,
complaints about them have never been investigated, and justice has
consistently been denied.
"In hindsight....the amendments created a
hermetic barrier preventing criminal investigation(s), since the Attorney
General has chosen not to forward even a single case (to) the PID (and) the
Israel Police has not opened a single investigation in this field."
In addition, since a GSS official is authorized to investigate complaints,
in practice, a clear conflict of interest exists, and it's evident in
consistent whitewashings. From January 2001 - December 2008, PACTI submitted
598 interrogee complaints to the State Attorney's Office. None were
forwarded for criminal investigation. For example, in 2007:
opened 47 examinations;
-- as of June 20, 2008, processing for 30
were completed; but
-- "not a single complaint relating to a GSS
investigator was forwarded for investigation and no steps (including
disciplinary action) were taken against the interrogators."
years 2005, 2006 and earlier ones were no different. On October 20, 2009,
PACTI submitted a freedom of information request to the Ministry of Justice
for pertinent 2008 and 2009 information. As of yearend 2009, no reply was
received. It appears torture and abuse aren't serious enough to warrant
investigation and disciplinary action. As a result, it continues unpunished
Past Department of Special Tasks responses have been
brief and obstructionist with "formulaic phrases" like:
complaints in your letter are baseless.
-- The interrogation was
pursued in accordance with the procedures.
-- After the
interrogators have been questioned and the complainant's claims have been
examined one by one, the Attorney General has reached the conclusion that no
defect occurred in the interrogators' behavior. Accordingly, there is no
cause to take any legal action against them."
No clarifications were
given, and at times, responses had no relevance to the complaints or why
they were dismissed. PACTI concluded that thorough investigations weren't
undertaken, and whatever was done was "laundered," making the conclusions
Worse still, lawyers may not represent
complainants (no longer suspects) during interrogations or prepare them in
advance. They occur without prior notification. The atmosphere is tense, and
PACTI learned about complainants being shackled and having no rights, "whose
words are to be regarded with great suspicion." In other words, their
complaints may do more harm than good. Submitting them may make them a
future target, and GSS accounts are always accepted as factual, no matter
how false and inaccurate.
The Illogic of Letting the Abuser Be the
How can "a body responsible for investigating torture
and improper means of interrogation" be the one responsible for the abuse.
"Such a body cannot operate as a substitute for a criminal investigation;
the investigation must be transparent and open to public criticism." Doing
otherwise discredits the entire process and "defies common sense, Israeli
law and international law...."
Also, letting torturers investigate
their own crimes discourages complainants. Why bother under a fundamentally
unfair system, one with further harmful implications for the abused.
The system is rigged to fail. Abuse gets rubber-stamp approval, and
authorization goes right to the top, granting sweeping immunity for the most
grievous offenses, justice always being denied. By order of the Attorney
General and State Attorney's Office (via Prime Ministerial authorization),
"an impenetrable barrier (shields) criminal investigation(s)" and GSS
Grave consequences result. Abuses and a culture of
lying persist as well as a "disrespect for the rule of law and for the
values of human rights. It denies relief to victims seeking to repair the
physical and psychological damage they have suffered, and it also imposes an
obstacle, preventing (them) from securing their right to claim compensation
through a civil proceeding."
Being Palestinian under Israeli
control carries great risks, best attested to by victims.
Obligation to Investigate Abuses and Penalize Those Responsible
Numerous international laws prohibit torture, including the Covenant on
Civil and Political Rights, the Convention against Torture, Geneva
Conventions and Common Article 3, the Nuremberg Principles, the Universal
Declaration of Human Rights, the Rome Statute of the International Criminal
Court, and others.
The prohibition is sweeping, applies universally,
and no exceptions are allowed. Israel committed to observe it, yet
systematically is in violation.
The Convention against Torture
defines it as follows:
"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. It does not include pain or suffering arising only from,
inherent in or incidental to lawful actions."
Actions not meeting
the definition of torture come under the definition of "cruel, inhuman, or
degrading treatment or punishment," otherwise called abuse, but the line
between the two is thin and often crossed.
The Obligation to
The Convention against Torture obligates member states
to investigate and punish torturers. The same is true for the UN Committee
against Torture (responsible for implementing the Convention), the UN Human
Rights Committee (responsible for implementing the Covenant on Civil and
Political Rights), and the main international tribunal rulings - all
requiring independent, impartial, efficient, effective and reliable action
to hold those responsible accountable.
The UN Special Rapporteur on
Torture is also mandated to investigate torture globally, including
complaints and legal issues as well as regular fact-finding missions to
specific countries under conditions of free inquiry, unrestricted movement,
and the ability to conduct confidential interviews with victims, witnesses,
human rights defenders, and NGOs, after which reports are prepared for the
Human Rights Council and made available to the public.
Court of Human Rights and Inter-American Committee of Human Rights
stipulated that states must report their investigatory results to
complainants and publish them. The Istanbul Protocol includes the most
detailed publication requirements, stating:
"A written report, made
within a reasonable time, shall include the scope of the inquiry, procedures
and methods used to evaluate evidence as well as conclusions and
recommendations based on findings of fact and on applicable law. On
completion, this report shall be made public. It shall describe in detail
specific events that were found to have occurred and the evidence upon which
such findings were based, and list the names of witnesses who testified with
the exception of those whose identities have been withheld for their own
protection. The State shall, within a reasonable period of time, reply to
the report of the investigation, and, as appropriate, indicate steps to be
taken in response."
In addition, prosecuting guilty parties must
occur in compliance with Article 12 of the Convention. Also, integrating
torture offenses comes under under the provisions of Article 4(1) and
definition in Article 1. Minimum penalties aren't established, but
recommendations range from six to 20 years, depending on the severity of the
offense. Under no circumstances should pardons be granted. Doing so violates
the Convention's Article 2(1) and encourages recurrences.
a signatory to the Convention against Torture and is obligated to observe
its provisions. Yet as early as 1994, the UN Committee against Torture, in a
departure from its usual practice, demanded that Israel submit a special
report following the HCJ ruling explicitly permitting "physical pressure"
against interrogees. After examining the report, the Committee concluded
that GSS interrogation methods constitute torture in violation of
fundamental international law, including so-called "ticking bomb" cases.
In its most recent May 2009 report, the Committee addressed Israeli
violations with respect to conditions of detention and imprisonment,
protracted isolation, illegal facilities, detaining minors, and using force
during military operations. Concern was also raised about failure to include
torture in Israeli law, and that:
"....the 'necessity defense'
exception may still arise in cases of 'ticking bombs,' i.e., interrogation
of terrorist suspects or persons otherwise holding information about
potential terrorist attacks....The Committee is concerned that GSS
interrogators who use physical pressure in 'ticking bomb' cases may not be
criminally responsible if they resort to the necessity defense argument."
The Committee against Torture's unequivocal recommendation was for
Israel to "completely remove necessity as a possible justification for the
crime of torture." The UN Special Rapporteur on Torture and Human Rights
Committee expressed the same view, including that "all allegations of
torture and ill-treatment are promptly and effectively investigated and
perpetrators prosecuted and, if applicable (appropriate)
Of great concern was that none of the 600
torture complaints against GSS interrogators from 2001 through 2008 led to a
criminal investigation and prosecution. It called Israel's behavior
particularly grave and urgently in need of change. Everyone up the chain of
command is responsible, including commanders, the Attorney General, and
others materially involved.
Torture and inhumane treatment are
crimes under international law. In armed conflict, they're war crimes, and
when civilian populations are attacked, they're crimes against humanity.
Defendants may be tried by their home countries, or in others under the
universal jurisdiction principle, an obligation borne by all Geneva
Convention parties. They may also be tried in the International Criminal
Court in the Hague, a permanent tribunal to prosecute individuals for
genocide, crimes against humanity, war crimes, and the crime of aggression.
Culpable persons include planners, order issuers, and assistants.
Vicarious liability is also recognized and may be imposed on commanders and
civilian leaders based on crimes committed by their subordinates on explicit
or implicit orders given.
To prove guilt, it must be established
that they either knew or should have known about crimes, yet they made no
effort to stop them, or when committed, punish offenders.
Institutionalized torture can't be maintained without higher up
authorization and tacit or explicit approval of the practice. In the case of
the Bush administration, culpability went right to the top, documented in
revealed torture memorandums, memos, findings Executive Orders, and National
and Homeland Security Presidential Directives.
In sum, states are
obligated to investigate torture complaints and hold guilty parties
accountable. "The State of Israel has failed to meet these requirements, to
which it is obligated under international law." The UN Committee against
Torture noted this lawlessness for years. Israel did nothing to address it.
To date, the practice continues unabated, authorized by the highest
government officials and IDF commanders in violation of fundamental
According to PACTI:
"There can be no
doubt that all branches of (Israel's) government - the executive, the
legislature, and the judiciary - have provided GSS interrogators with
multiple layers of protection. There can also be no doubt that (they)
exploited these (protections) to emerge unscathed after committing
unconscionable actions in moral and legal terms. (It's) essential to end the
era in which torturers enjoy immunity in Israel or elsewhere." Nothing less
is tolerable or acceptable.
Stephen Lendman is a
Research Associate of the Centre for Research on Globalization. He lives in
Chicago and can be reached at
Also visit his blog site at
sjlendman.blogspot.com and listen to the Lendman News Hour on
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