FIACAT INTERNATIONAL SEMINAR:
THE BAN ON TORTURE: A PRINCIPLE UNDER THREAT
Lungern (Switzerland) - 30 April – 2 May 2007
The Influence of Fear and Security on Government Activities and Society in Connection to Protection of Human Rights in the Struggle Against Terror:
The Israeli Narrative
30th April 2007
Please allow me to begin by setting out for you three fundamental assumptions:
First, the fear and threat that the state feels as a result of terror are an undeniable factor.
Second, democratic nations find it difficult to deal with terror, yet this difficulty certainly cannot justify systematic violations of human rights.
Third, while I accept that most human rights are relative and can therefore be limited due to security considerations, this certainly does not apply to the right not to be tortured. This is an absolute and universal right that cannot be violated under any circumstances, even when weighty security considerations are hanging in the balance.
These three assumptions are my starting point for this discussion. From them I will try to expand on the Israeli viewpoint, without pretending to be able to cover the entire complexity of the Israeli situation in this context.
The fear and the threat from terror, in the Israeli context, are understandable given Israel’s history.
Starting with the memory of the Holocaust, during which six million Jews were slaughtered on European soil.
Continuing through Israel’s wars, woven through the state’s 59 years of existence, and creating a sense in the Israeli consciousness of fighting for survival – “the few against the many”.
And concluding with the bitter taste that the residents of Israel are forced to bear, in being the targets of terror attacks.
Adding to all these factors, it is obvious that that anti-Semitic behavior against Jews has yet to be eradicated, and that Israel’s legitimacy has yet to be accepted and recognized by the entire international community.
In the Israeli collective memory, and in the daily experience of society and state in Israel, the fear of terror is concrete and real. It accompanies every step of daily life. Security guards are stationed at the entry to every mall, restaurant or bus and their job is to deter potential suicide bombers from blowing themselves up in that place. Security measures at Israeli airports are unprecedented. Similarly the state budget reflects a traditional preference for security over social needs such as public health, welfare and even education. Even in the negotiations with the Palestinians, for a temporary or permanent settlement, the primary concern of Israel is security.
The fear of terror, such as suicide bombings, gets mixed up with existential security concerns of the State of Israel, until it is no longer possible to clearly distinguish between the two: Terror changes its face constantly, making it difficult to say what is "terror" and what is "war".
For instance Israel’s second war in Lebanon in the summer of 2006, was waged against a terror organization – the Hezbollah, perceived to pose an existential threat to the security and existence of the State of Israel. Civilians in northern Israel were forced to flee their homes and to live for months as internal refugees. Soldiers and civilians were killed and injured and the destruction from the missiles from Lebanon was widespread. This was certainly evidence to Israelis that terrorists are able to pose a serious threat to the existence of the state. (And this without minimizing in any way the suffering, death and destruction caused in Lebanon).
On the other hand, there are terrorist acts, including even suicide bombings, that do not threaten Israel’s survival, but do cause massive damage, injury and loss of life.
For instance, on Passover eve 2002, a suicide bomber from Hamas walked into a hotel dining room in Israel, crowded with families celebrating the traditional holiday meal, and blew himself up. He killed 30 persons and seriously injured more than 160.
These are just two examples. The reality of Israel produces many more.
This helps to clarify for us why the expression “Israeli security” is a key concept in understanding the Israeli experience. Israel’s first prime minister, David Ben Gurion encapsulated the Israeli perspective when he said, "If we put all the ideals in the world in one hand and Israel’s security in the other hand, I will choose the second hand.”
At the same time, the claim of security has been gnawed away over the years, and has certainly ceased to be taken for granted in Israeli society. Important elements of the Israeli public, such as Israel’s Supreme Court, in its precedent setting decisions on the issue of torture and on other issues, do critically examine security claims. Security is no longer an automatic justification for violating human rights.
We can also say, generally, that on the one hand, there are those who criticize the frequent use of the security excuse. They claim that the legitimate fear of terror has become a ridiculous paranoia, through which the rule of law and human rights are regularly violated in Israel and in the Occupied Palestinian Territory.
On the other hand, the Israeli security forces and the Israeli Government zealously preserve the "state of emergency," which has been in effect since the State first came into existence. They are unwilling to compromise on Israeli security.
Israeli social-cultural-legal discourse is contained within these dialectical parameters. It is a discourse in which security competes with human rights, and the primary playing field is Israel’s Supreme Court.
Within the framework of this discourse the authorities have used “security” to legitimate pursuing national, political, economic and other interests at the expense of democratic values. For instance, the state claims that charges of violations, and efforts to promote protection of human and civil rights and the rule of law in Israel, are more often than not shallow and exaggerated. Additional evidence of this, which is perhaps even more controversial, is the state’s seemingly permanent occupation of the Palestinian Territory, or what Israel calls “Yehuda and Shomron”, and its relationship with the local Palestinian civilian population under the Occupation: the building of the separation barrier or wall within the territory under occupation, the targeted killing policy, home demolitions, administrative detention, security legislation that imposes draconian restrictions on the due process rights of security suspects, and other violations.
It is important to understand that when we talk about human rights violations, we are not just talking about violations against those branded external enemies, but also about citizens of Israel. For this reason it is no wonder that Israel is called a “security state.” It is well known that technological advancement increases the ability of the state to restrict the rights of the individual in the course of a “war on terror.” And, in fact, the ability to track and harm persons has only increased in every sense of the word and in every sector of our lives. The importance of this is that we are not talking about tracking suspected terrorists or criminals or those who have even been convicted in a court of law. Rather, each and every one of us is liable to be pursued in this manner. It is then possible to grasp that given the Israeli narrative of survival the national leaders succeed, little by little, to enact laws that eat away at rights of the individual in the name of security.
In addition to this the manner in which Israel deals, or should deal, with the question of human rights in the course of the struggle with terror derives not only from the objective security system and the fear that citizens feel, but also from international law to which Israel is obligated. On more than one occasion Israeli leaders have said that international law is unclear regarding the definition of terror and the principles guiding the state in fighting terror. There is a feeling that the laws of war do not provide an adequate answer for democratic nations regarding their counter-terrorism efforts. We need to remember that the four Geneva Conventions and the Hague Convention from 1907 relate to hostilities between nation states while the "war on terror" is usually fought between the state and individuals or organizations. IHL also speaks to the situation when a soldier is fighting another soldier while in the "war on terror" it is not always clear just who is the terrorist and who the civilian is.
Terror can emanate from within the territory of the state or from outside its borders, it can be conventional or even unconventional warfare. Given the increased access of individuals to information and technology as well as finances the threat of terrorism becomes more real, transnational and more difficult to counter.
It is now important to clarify something: In light of the various terrorist events in the world it is difficult to characterize the phenomena of terror as one comprehensive whole. At the same time this definitional vacuum allows the State of Israel too much freedom of action and a troubling level of "creativity" in its response to terror. This reaction does not always consider the long-term effects of the actions taken and often totally ignores human rights concerns. Take for example, the State of Israel’s response to suicide bombers: Israeli policy was to destroy the homes of suicide bombers, which by the way was usually home to family members, in order to ’deter’ the next bomber. Israel tries to kill terrorist before they reach their targets and is sometimes successful and sometimes misses, killing civilians instead. Israeli asserts that the main objectives of these acts are "deterrence" and "prevention" and that they are taken for security reasons. However, it was subsequently shown, after years of implementing the controversial policy of punitive home demolitions, that there was no deterrent effect. Indeed the targeted killings sometimes do more to create a reaction of terror than to prevent it.
The parameters that Israel uses to judge its response to terror are legal, practical, and utilitarian. It should be remembered that the state’s response to terror is not just based on fear and security concerns but also on more narrow, internal and political concerns. Therefore I accept the approach according to which you must distinguish between three questions asked by democracies in connection to their fight against terror: first, how does a state respond to terror? The considerations are not always consequentialist. In a democratic country there are political considerations that do not always correspond with the effectiveness of the action as a counter-terror measure but rather as an act designed to satisfy a public need or the public will. Therefore it is important to distinguish between the question of how a State acts and how a state should act. The second question refers to what methods would be most effective in a "war on terror." The effectiveness needs to take into account the fact that measures can be more than just not effective. They can also promote terror. And finally, are these supposedly efficient methods also legitimate?
It is clear that the complexity of dealing with terror raises a number of probing questions such as the factors that maintain terrorism.
Accordingly, I will conclude and say that the Israeli experience in dealing with terror is unprecedented on the international scene. Israel has dealt with both internal and external terror, from Jewish s and Muslim elements. Israel, for good or for bad, is a militant democracy, a democracy that feels that it is threatened. It suffers from an intellectual and value dualism. On the one hand, there is the Israeli experience, in which the fear of the destruction of the state becomes a behavioral, social and political condition. On the other hand, Israel defines itself as a democratic regime. This has produced some fruit as far as human rights protection goes in Israel, be it Israel’s basic laws, Supreme Court jurisprudence, and joining a number of international human rights covenants. The distance between the legal and moral declarations regarding human rights and de facto application of these values is the real measure and, it seems to me that there is too wide a gap between the two.
Someone said that "the battle for human rights is, among other things, a battle for the right to life, a right which terror seeks to harm. A war on terror is not a war on human rights because one human right is the right to live." Where is the border between legitimate security needs and fatal injuries to individual rights? Do the constitutional and legal tools that democracies possess sufficiently answer the developing terrorist threat and if not how can we develop these tools without harming human rights? I am convinced that the challenge for democratic regimes that dealing with terror is to preserve democratic values and a democratic way of life where the primary test is the extent to which the right not to be tortured is protected. This right is an absolute one, protected even under the most extraordinary of circumstances, even in the course of a "war on terror." And if this right is not protected, absolutely, the terrorists have achieved their goals and the otherwise democratic state fighting terror can easily become a terror state. The slope is indeed a slippery one. In this way terror is liable to win and change the entire face of the free and democratic world. This must be one of the primary goals of any state that struggles with terror and similarly it is also one of the most important objectives of human rights defenders in democratic states.
Adv. Rachela Ere’l, Staff Attorney
The Public Committee Against Torture in Israel