|Israeli Unaccountability and Denial|
Suppressing the Practice of Torture
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."
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|Allen L. Jasson|