FIACAT INTERNATIONAL SEMINAR:
THE BAN ON TORTURE: A PRINCIPLE UNDER THREAT
Lungern (Switzerland) - 30 April – 2 May 2007
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
As a Tool in the Struggle against the use of Torture in Israel
An Israeli Perspective
2nd May 2007
The adoption of the Optional Protocol to the Convention Against Torture was a major step in the struggle against torture. The ability to monitor the implementation of the UN Convention Against Torture was increased effectively and practically, and today states that adopted the Protocol allow international presence in interrogation and detention facilities. This is a momentous achievement and to a great extent it will advance the international struggle against torture. This is the significance of the states that adopted the protocol and no less so human rights advocates in the international community that advanced this initiative.
Nevertheless, this achievement is incomplete and less than satisfactory as it does not sway states, like Israel, where torture has not been completely eradicated. As you well know, one of the serious problems of international law is the difficulty in enforcement of the norms it sets on states and on individual citizens. As this is an issue of international treaty law, the formal agreement of a state is needed in order to allow international presence on its territory. Many states, including Israel, chose not to join the Optional Protocol, but to limit themselves to the role of parties to the Convention Against Torture. Israel at times views a tool used to monitor and enforce the implementation of the Convention against Torture, as a threat to its sovereignty. On the one hand, decision makers do not believe in the integrity and objectivity of international bodies in relation to Israel. On the other hand, Israel’s internal security body, the General Security Service (GSS) does not agree to unplanned visits by authorized Israeli bodies, because of its extreme perspective concerning the need for secrecy, compartmentalization and the importance it places on preserving vital interrogation tools employed in the struggle for state security and against terror.
I believe that to best understand the extent to which the prevention mechanisms laid out in the Optional Protocol can be effective in fighting torture we could employ an analysis of their future application in the State of Israel. In order to do so, it is vital to understand the legal situation in Israel regarding torture and why the establishment of “national prevention mechanisms” and permitting visits the presence and supervision of the “subcommittee on prevention” are potentially important tools in the eradication of the phenomenon in Israel.
Legal treatment of the question of torture in Israel underwent many changes, two of which are significant landmarks: the 1987 Landau Commission report which examined the interrogation methods of the GSS and permitted GSS officers to employ ’moderate physical pressure’ in the interrogation of persons suspected of security offences, and the 1999 High Court of Justice ruling on torture that prohibited the employment of interrogation methods that were permitted by the Landau Commission. It must be stated that two central legal and social processes formed the basis or background for the High Court of Justice ruling on torture. One was the expansion of the defense of human rights in Israel in the framework of the “constitutional revolution” under which two basic laws were passed in the early 1990s: the Basic Law: Human Dignity and Freedom, and the Basic law: Freedom of Occupation. Secondly, the commencement of a period of relatively frequent intervention of the High Court of Justice in security issues in contrast to its past behavior. . The combination of these two processes: progressive legislation and increased judicial activism, significantly contributed to changing the legal situation established by the Landau Commission. .
The 1999 High Court of Justice ruling determined that the General Security Service is not permitted to employ physical means during interrogation for the purpose of extracting information from interrogees. It also ruled that the “necessity” defense may not be used as a source of authority for the employment of these methods. This ruling, allegedly, stands for the expansion of interrogee rights and the protection of human dignity, in accordance with the general attitude that typifies the High Court of Justice ruling following the passage of the Basic Law: Human Dignity and Freedom. However, the ruling allows the Attorney General discretion retroactively, to decide not to bring to justice interrogators who used physical means in the course of an interrogation in cases that involve the “necessity” defense. This is a type of “retroactive” supervision of interrogation authorities and signifies that the High Court of Justice did not set out a clear legal standard, and to a certain extent, left us in a state of legal ambiguity concerning this issue. This is, actually, one of the principle indicators of the way Israel treats the phenomena of torture. For example both Israeli legislation and case law fail to clearly and emphatically deal with the issue of torture. This lacunae could be a leading factor in encouraging the continued (though clearly less so than pre-1999) use of “torture”. Furthermore, the ambiguity and lack of resolve to cope with difficult and penetrating questions exposes this issue to a maximum level of exploitation by security personal, who interpret the ban on torture at their will and according to their needs. As an indication of this it should be noted that since the High Court of Justice ruling of 1999, and to this day, and in spite of numerous complaints of torture by persons who were interrogated by the GSS, not one criminal investigation has been opened against an interrogator, and, needless to say, no GSS agent has been put on trial.
Nevertheless, since the 1990’s, Israel has attempted to become involved, as much as it possibly can, in the international conventions that defend human rights. Israel ratified, among others, three important conventions: The International Convention on Civil and Political Rights of 1966; the International Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment of 1984; the International convention on the Rights of the Child of 1989.
Practically, the ratification of the conventions can have a real influence on the behavior of the State of Israel in two principle arenas: the domestic and the international: In the domestic arena, through making Israeli law compatible with the provisions of international conventions ratified by Israel; in the international arena through the implementation and respect for the recommendations of the treaty bodies that were set in some of the conventions regarding complaints on the employment of physical and psychological means in interrogations in Israel.
However, according to the Israeli legal system, these conventions, which were not adopted into local legislation, do not form a part of national law and therefore are not legally binding. Nonetheless, there was a serious attempt made in Israel to integrate the prohibition of torture into local law in the framework of the Ministers’ Committee on Matters of Legislation in 1995. The committee was headed by the Attorney General and its declared goal was to amend internal legislation so that it would be compatible with the UN Convention Against Torture that was ratified by Israel. The committee was headed by the Attorney General and included, among others, the Chief of the Israel Police, the Head of the GSS, the Head of military Intelligence, the Military Advocate General, and the State Attorney. This committee was of the opinion that there is room for the application of the provisions of the Convention in Israel, while taking into accounts the special problems and needs of Israel. The committee suggested the passage of two legislative amendments to rectify the provisions of the convention with domestic law: An amendment of the penal law and an amendment of the rules of evidence. The amendment of the rules of evidence would be actualized by coordinating the rules of evidence with the conclusions of the “Goldberg Committee”, which concluded that confessions collected through the use of physical means would not be admissible in court. The suggested amendment of the Penal law included the addition of a new offense: the offence of torture by a public employee. The committee recommended that this amendment be made in conjunction with the legislation of a law that regulates the functioning/operation of the General Security Service. This bill was not passed. It was proposed again during 1999 as a government bill However, no legislation was formulated.
The attempt at rectifying Israeli domestic legislation with the international obligations undertaken by Israel failed. What remains as an option is the possibility of examining how decisions are made by international supervisory mechanisms concerning complaints on the use of physical and psychological means in interrogation in Israel.
As I mentioned above,, as a result of Israel’s ratification of the Convention against Torture and the International Convention on Civil and Political Rights, Israel became subject to the supervision of those special mechanisms established to implement the two conventions. Both bodies reviewed the legality of the interrogation methods used by the GSS.
In August, 1998, the Human Rights Committee, (the HCR) established in the framework of the ICCPR, published its conclusions regarding the questions of the legality of the use of physical means in GSS interrogations in Israel. The findings were based on the report submitted by the State of Israel that year and a shadow report submitted by the Association for Civil Rights in Israel. Israel’s position before the committee was that, in view of the special circumstances of the State of Israel and the limitation on the use of physical means in interrogation to circumstances of "necessity", these means do not constitute “torture” or “inhuman, cruel and degrading treatment”. The committee determined that the use of physical means in interrogation (to which the State of Israel conceded) including: painful manacling, placing a sack over the interrogee’s head, shaking and sleep deprivation, whether individually or together, constitute a violation of the prohibition set out in Article 7 of the ICCPR. The Committee noted that even as it took Israel’s difficult security situation into consideration, Article 4 of the convention explicitly prohibits the derogation from the prohibition against torture even in times of emergency.
Similar conclusions were also reached by the Committee against Torture (CAT), which monitors the Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment of 1984. This committee reviewed the three State reports from the years 1994, 1997 and 1998 on the use of physical means in interrogation by Israel. The Committee determined that the means of interrogation employed by Israel, in accordance with the conclusions of the Landau Commission, constitute a violation of the Convention against Torture and Cruel, Inhuman or Degrading Treatment and Punishment. Here too the Committee noted Israel’s complex security situation. The Committee emphasized that in view of the absolute prohibition on the use of torture, according to Article 2 of the Convention, even under the most difficult of security situations a state cannot derogate from the absolute right of an individual to be protected from torture. The Committee rejected, in this regard, Israel’s interpretation of the “necessity defense” and determined that this interpretation is contrary to the obligation the State of Israel undertook when it ratified the Convention.
One might assume that the conclusions of these two committees regarding the weak legal standing, in the international community, of the use of physical means of interrogation by the GSS, would influence and be applied by Israel’s High Court of Justice in its precedent setting decision of 1999, and since, in its rulings regarding human rights. However, as I stated beforehand, we’ve returned to the same point where we left off. In view of the lack of effective supervision and a clear and precise statement, the routinization of torture crept back into the GSS interrogation rooms, as if it had never left.
It is important to be precise regarding this matter. It is not that the Israeli High Court of Justice Judgments is being disregarded by the executive branch. But they tend to apply a flexible interpretation of implementation. It must be understood that the situation prior to the 1999 Court ruling was that of an a priori and sweeping authority to allow the GSS interrogators to employ physical means in interrogation. As a result, during most interrogations, interrogees were placed on a low chair hooded with a sack on their head, manacled by the hands and feet and, in general, in this position, they were shaken, deprived of sleep among other things. Today this interrogation practice called “shabah” is no longer used, but we do generally, if not always, receive complaints, on the employment of physical abuse such as extended manacling behind the back, threats and psychological torture from time to time, in a sporadic and not in a systematic way, when we receive reports of severe violence and torture such as the “banana” position, forced crouching, beatings and even sexual abuse. It is definitely possible to state that today the use of physical means is limited in terms of the severity of the means and in the number of cases in contrast with the situation that existed prior to the High Court of Justice ruling. The fact that physical and psychological means are still used along with the rise in interrogees’ complaint regarding this is of great concern and disappointment. However, this still does not amount to a complete erasure of significance of the achievement of the ruling on torture both as a moral compass and legal guideline within the Israeli experience.
In conclusion, while efforts in Israel to deal with the issue of torture achieved notable successes, a complete victory has not yet been achieved. The failure is in the level of supervision regarding the implementation of those accomplishments. A central principle in determining appropriate and lasting regulations is the need for setting up appropriate means of monitoring. In Israel, the situation is such that during periods of emergency, coupled with the lack of an effective independent and impartial monitoring mechanism total discretion is left in the hands of the security authorities, and the rules set by the High Court of Justice were quickly violated. Due to this, and in spite of the absolute prohibition on torture in international law that Israel undertook to uphold, severe means of torture are still used. The obvious solution, therefore, is preventative in the form of regular monitoring and supervision of the operations of the interrogating bodies rather than after the fact review. This kind of supervision would assure, in real time, the implementation of the law regarding torture from both a domestic and international perspective. This supervision must be undertaken by an independent and impartial body with broad authority to verify the implementation of the law. It seems that bodies, such as those created by the Optional Protocol, can best meet the Israeli challenge.
Adv. Rachela Ere’l, Staff Attorney
The Public Committee Against Torture in Israel