- 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
report.
-
- 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.
-
- Torture 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 Palestinian nationalism."
-
- 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 balances."
-
- 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 practices.
-
- 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
abusive interrogations.
-
- 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.
-
- The Necessity Defense
-
- 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 information.
-
- 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 No Investigation
-
- 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.
-
- This and 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:
-
- -- OCGIC 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."
-
- The 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 and unabated.
-
- Past Department of Special Tasks responses have been
brief and obstructionist with "formulaic phrases" like:
-
- -- "The 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 reached worthless.
-
- 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 Investigator
-
- 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 prosecutions.
-
- 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.
-
- The Legal 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 Investigate
-
- 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.
-
- The European 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.
-
- Israel is 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) penalties....imposed."
-
- 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 international law.
-
- 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
lendmanstephen@sbcglobal.net.
-
- Also visit his blog site at sjlendman.blogspot.com and
listen to the Lendman News Hour on RepublicBroadcasting.org Monday - Friday
at 10AM US Central time for cutting-edge discussions with distinguished
guests on world and national issues. All programs are archived for easy
listening.
|
