. ISRAELI INTERROGATION CASES
....UN HIGH COMMISSIONER ON HUMAN RIGHTS
......Consideration of Reports Submitted by States Parties
..................under Article 19 of the UN Convention
...........Committee Against Torture (18 February 1997) .................CAT/C/33/Add.2/Rev.1--Israeli Report
.............SUPREME COURT IN JERUSALEM
.............SITTING AS A HIGH COURT OF JUSTICE
.............Applicant: Mohammed Abdel Aziz Hamdan vs.
..Respondents: The General Security Service (January 1997)
Author's Note: This
is an edited version of the report submitted by Israel, as requested
by the Public Committee Against Torture--working in conjunction
with the Office of the UN High Commissioner on Human Rights.
Israel has ratified the UN Convention. An autopsy report, tendered
by a Danish physician in an earlier UN hearing , determined that
the Israeli police "shaking" procedure was sufficiently
violent to cause the Palestinian detainee's death. The Annex
to Israel's report to the UN High Commissioner contains the Israeli
Supreme Court decision which canceled a prior injunction which
had prohibited the use of this procedure.
.....The ten-member UN Committee Against Torture recognized Israel's dilemma, as posed below. The Committee nevertheless said that Israel should cease this practice immediately. Israel defended itself in the worldwide press, for its resumed use of this form of physical coercion, when questioning mostly Palestinian detainees who might have information about planned terrorist attacks on Israel. The UN's Torture Committee acknowledged that Israel had thereby averted ninety such attacks in the prior two years.
.....The paragraph numbers are contained in the original document. You should first read the Israeli Supreme Court's opinion near the end of the web page, and then return to this point to read Israel's responsive report to the UN Commissioner.
........................................................... [Israeli Report]
2. We would like to emphasize that Israeli law strictly forbids all forms of torture or maltreatment. The Israeli Penal Code (1977) prohibits the use of force or violence against a person for the purpose of extorting from him a confession to an offence or information relating to an offence. Israel has signed and ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
3. The State of Israel maintains that the basic human rights of all persons under its jurisdiction must never be violated, regardless of the crimes that the individual may have committed. Israel recognizes, however, its responsibility to protect the lives of both Jews and Arabs from harm at the hands of terrorist organizations active throughout the world. To prevent terrorism effectively while ensuring that the basic human rights of even the most dangerous of criminals are protected, the Israeli authorities have adopted strict rules for the handling of interrogations. These guidelines are designed to enable investigators to obtain crucial information on terrorist activities or organizations from suspects who, for obvious reasons, would not volunteer information on their activities, while ensuring that the suspects are not maltreated.
THE LANDAU COMMISSION
5. The Landau Commission envisioned its task as defining "with as much precision as possible, the boundaries of what is permitted to the interrogator and mainly what is prohibited to him". The Commission determined that in dealing with dangerous terrorists who represent a grave threat to the State of Israel and its citizens, the use of a moderate degree of pressure, including physical pressure, in order to obtain crucial information, is unavoidable under certain circumstances. Such circumstances include situations in which information sought from a detainee believed to be personally involved in serious terrorist activities can prevent imminent murder, or where the detainee possesses vital information on a terrorist organization which could not be uncovered by any other source (for example, location of arms or caches of explosives for planned acts of terrorism).
6. The Landau Commission
recognized the danger posed to the democratic values of the State
of Israel should its agents abuse their power by using unnecessary
or unduly harsh forms of pressure. As a result, the Commission
recommended that psychological forms of pressure be used predominantly
and that only "moderate physical pressure" (not unknown
7. It should be noted that the use of such moderate pressure is in accordance with international law. For example, when asked to examine certain methods of interrogation used by Northern Ireland police against IRA terrorists, the European Court of Human Rights ruled that "ill-treatment must reach a certain severe level in order to be included in the ban [of torture and cruel, inhuman or degrading punishment] contained in Article 3 [of the European Convention on Human Rights]". ...
8. The Landau Commission was aware that the issue of moderate pressure during interrogation is both a serious and a sensitive one. The guidelines regarding interrogation provide for limited forms of pressure under very specific circumstances, to be determined on a case-by-case basis. They by no means authorize indiscriminate use of force. Rather, specific circumstances have been identified and interrogation practices have been strictly defined in a manner that, in the opinion of the Landau Commission, "if these boundaries are maintained exactly in letter and in spirit, the effectiveness of the interrogation will be assured, while at the same time it will be far from the use of physical or mental torture, maltreatment of the person being interrogated, or the degradation of his human dignity".
9. To ensure that disproportionate pressure is not used, the Landau Commission identified several measures, which have been adopted and are now in force, namely:
10. Once these measures were set down, the Landau Commission went on, in a second section of its report, to precisely detail the exact forms of pressure permissible to the GSS interrogators. This section has been kept secret out of concern that, should the narrow restrictions binding the interrogators be known to the suspects undergoing questioning, the interrogation would be less effective. Palestinian terrorist organizations commonly instruct their members, and have even printed a manual, on techniques of withstanding GSS questioning without disclosing any information. It stands to reason that publishing GSS guidelines would not only enable the organizations to prepare their members better for questioning, but would reassure the suspect as to his ability to undergo interrogation methods without exposing vital information, thus depriving the GSS of the psychological tool of uncertainty.
12. The Landau Commission also recommended that there be external supervision of GSS activities. Since the Landau Commission issued its recommendations, the State Comptroller's Office has launched an examination of the GSS investigator's unit. Upon the completion of its inquiry, the State Comptroller's findings will be submitted to a special subcommittee of the Knesset (Israeli Parliament) State Comptroller Committee.
13. In addition, an agreement between the State of Israel and the International Committee of the Red Cross (ICRC) provides for the monitoring of conditions of detention. Delegates from the ICRC are permitted to meet with detainees in private within 14 days of the arrest. ICRC doctors may examine detainees who complain of improper treatment. All complaints made by the ICRC regarding treatment of prisoners are fully investigated by the relevant Israeli authorities and the findings are made known to the ICRC.
14. In May 1991, a special ad hoc committee composed of members of the GSS and the Justice Ministry was appointed to review complaints against the conduct of GSS investigators during interrogation at the Gaza Prison investigation section. The committee identified a number of cases in which investigators did not act in accordance with the guidelines for treatment of detainees. As a result of the Committee's findings, action has been taken against GSS investigators involved in those cases.
16. It should be noted that these guidelines are reviewed against a background of escalating terror. The years since the signing of the Oslo agreement in 1993 have been the bloodiest since the establishment of the State of Israel. During this period Palestinian terrorist groups, such as Hamas and Islamic Jihad, have planned and perpetrated numerous violent attacks which have resulted in the death and injury of hundreds of innocent victims. The spate of suicide bombings on buses and public places designed to terrorize the local population has made it imperative that the defence and security services work as effectively as possible to prevent further terrorist attacks and ensure the security of the population.
17. Within the last year a number of petitions have been submitted to the Supreme Court of Israel sitting as the High Court of Justice demanding that the court issue an injunction forbidding the GSS from using any force throughout the investigation. The court's decisions have dealt with these guidelines and their implementation on a case-by-case basis. Two cases of particular significance are worth mentioning.
18. In December 1995, the High Court of Justice issued an interim injunction on the basis of a petition brought by Abd al-Halim Belbaysi against the GSS (HCJ 336/96), to abstain from the use of physical pressure against the petitioner during his interrogation. At the request of the GSS, this interim order was later canceled after the petitioner, who had earlier signed a written declaration denying any connection on his part to any illegal activity, admitted that he had planned the heinous terrorist attack at Beit Lid on 22 January 1995 at which two suicide bombers blew themselves up and killed 21 Israelis. Belbaysi confessed that three bombs had been prepared at his home, that he himself had hidden the bombs in the vicinity of Beit Lid and that on the day of the attack he had handed over two bombs to the two suicide bombers and had driven them to the site of the attack.
19. Belbaysi also provided information which enabled the authorities to retrieve the third bomb, containing 15 kg of explosives, from its hiding place. During the investigation it also became apparent that Belbaysi had additional information regarding serious terrorist attacks in Israel planned for the near future. In order to uncover this essential information, the GSS appealed to the court asking it to cancel the injunction.
20. The court therefore accepted the argument of the GSS attorney that disclosure of this information by Belbaysi could save human lives. In light of this the court canceled the interim injunction. At the same time the court emphasized the importance of adhering to the rule of law: "... it is clear that the cancellation of the interim order should not be seen as permission for the investigators to use measures which are not compatible with the law and the relevant guidelines."
21. In a more recent case, Muhammed Abdel Aziz Hamdan (HCJ 8049/96), the High Court again canceled an interim injunction, which had been issued against the GSS following a petition by Hamdan, to abstain from the use of any physical pressure throughout his interrogation. This interim injunction was issued with the agreement of the GSS, who informed the court that at this stage of the investigation, they did not intend to use any physical pressure against the petitioner. However, within 24 hours, as a result of new inquiries and additional information regarding the petitioner, the GSS applied to the court for the cancellation of this interim injunction. It should be noted that Hamdan had previously been detained in 1992 at which time he admitted that he belonged to and was active in the Islamic Jihad cells. At that time he was included in the group of Islamic Jihad and Hamas activists who were deported to Lebanon. Upon his return, Hamdan was sentenced to three additional months of imprisonment, which he completed at the end of February 1994.
22. In July 1995 he was placed under administrative detention for one month, and in March 1996 he was arrested by the Palestinian Authority together with a number of activists of extreme terrorist organizations. He was released in August 1996. In October 1996, the GSS received information which raised definite suspicions that Hamdan had in his possession extremely vital information, the disclosure of which would help save human lives and prevent serious terrorist attacks in Israel, of which there was a real fear of their occurrence in the near future.
23. The conclusion was therefore reached that there was a vital need to immediately continue with the interrogation. It was at this point that the GSS petitioned the Supreme Court to cancel the interim injunction, as it was considered essential to waive the limitations of the interim injunction in order to be able to pressure Hamdan into disclosing information that could prevent danger to many human lives. The attorney for the GSS emphasized that "... the use of such pressure in the present circumstances is allowed by law". He also stated that the physical measures which the GSS wished to use did not amount to "torture" as defined in the Convention against Torture, and that each of these measures fell under the defence of "necessity" as specified in section 34 (11) of the Penal Law, the conditions of which existed in the present case. In the light of the classified information presented to the court by the GSS, the court was satisfied that there was indeed an extremely high probability that Hamdan did indeed possess extremely vital information the immediate disclosure of which would prevent a terrible disaster and save human lives. In canceling the interim injunction, the Court stated that "After reviewing the classified material presented to us, we are satisfied that the Respondent does indeed have in his possession information on which a clear suspicion can be based that the Petitioner possesses extremely vital information, the immediate disclosure of which will prevent the most serious attacks. Under these circumstances, we are of the opinion that there is no justification to continue with the interim injunction. Needless to say the canceling of the interim injunction is not tantamount to permission to use interrogation methods against the Petitioner which are against the law."
25. The State of Israel prides itself on having an open society with a democratic legal system which is subject to public scrutiny and which respects human values. Israel has a unique procedure for the judicial review of complaints of alleged maltreatment or torture, namely, the Supreme Court of Israel sitting as a High Court of Justice. Anyone who believes he has been wronged - whether a citizen of Israel or someone merely under the jurisdiction of the Israeli authorities - can petition directly to the Supreme Court sitting as a High Court of Justice. Such a petition will be brought before a judge within 48 hours from the time of its submission. Every allegation of maltreatment is taken seriously and investigated. However, it should be noted that individuals arrested, tried or convicted have both personal and political motives for fabricating claims of maltreatment during interrogation. Personal motives include the desire to have a confession ruled inadmissible at trial, to present oneself as a "martyr", or to escape retribution from Palestinian terrorist cells which have often assassinated or tortured individuals who have given information to the Israeli authorities. Political motives include the desire to spread anti-Israel disinformation in the form of unfounded human rights complaints, in order to undermine Israel's human rights image or discredit the GSS.
26. It is the unfortunate reality that, during times of political unrest and violence, restrictions must be placed on individuals who threaten the welfare of the State and its citizens. This paper has been aimed at demonstrating that, despite the harsh reality of continuing terrorism faced by the State of Israel, the State does everything in its power to uphold the rights of all persons under its jurisdiction while ensuring the safety of innocent individuals.
At the Supreme Court in Jerusalem
Before: President A. Barak, Justice M. Cheshin and Justice A. Matza
Applicant: Mohammed Abdel Aziz Hamdan
2. Today, 14.11.96, an application on the part of the Respondent has been submitted to us, asking for an urgent hearing to cancel the interim injunction. In giving the reasons for this request, Mr. Nitzan stated that numerous inquiries had been made in the meantime, that the Respondent had received the most updated information regarding the matter under discussion. Based on this information the Respondent has decided to request that the interim injunction issued by the court be immediately canceled.
3. In his application
the Respondent stated that already in 1992 the Petitioner had
been detained for interrogation. He admitted then that he belonged
to and was active in the Islamic Jihad cells. At the conclusion
of the interrogation he was included in the group of Islamic
Jihad and Hamas activists who were deported to Lebanon. Upon
his return, the Petitioner was sentenced to 3 additional months
of imprisonment, which he completed at the end of February 1994.
4. The Respondent notes
in his application that a few days before the arrest of the Petitioner
the Respondent received information which raised definite suspicions
that the Petitioner had in his possession extremely vital information,
the disclosure of which would help save human lives and prevent
serious terrorist attacks in Israel, of which there was a real
fear of their occurrence in the near future. The petitioner was
therefore transferred to the detention facility in Jerusalem
5. We have held a hearing of this application in the evening hours. We heard the arguments presented by Mr. Nitzan [for the Respondent]. He submitted that the physical measures which the Respondent wishes to use do not amount to "torture" as defined in the International Convention Against Torture. Mr. Nitzan also noted that each of these measures falls under the defense of necessity as specified in Section 34(11) of the Penal Law, the conditions of which exist in his view in the present case.As against this view, Mr. Rosenthal noted that the use of this defense cannot be made by the Respondent's interrogators. With the consent of Mr. Rosenthal, we have heard the Respondent's interrogators who have presented to us the overall intelligence picture which relates to the Petitioner in particular.
6. After reviewing the classified material presented to us, we are satisfied that the Respondent does indeed have in his possession information on which a clear suspicion can be based that the Petitioner possesses extremely vital information, the immediate disclosure of which will prevent a terrible disaster, will save human lives, and will prevent the most serious terrorist attacks. Under these circumstances, we are of the opinion that there is no justification to continue with the interim injunction (see Misc. Appl. HCJ 336/96 Abd Al Halim Belbaysi vs. The General Security Service) (not published). Needless to say the canceling of the interim injunction is not tantamount to permission to use interrogation methods against the Petitioner which are against the law. With regard to this matter, we have not been given any information regarding the methods of interrogation which the Respondent wishes to use and we are not taking any stand regarding them. Moreover, our decision applies to the interim injunction only and it does not take any final position with regard to the questions of the principle which were raised before us and which relate to the application of the defense of necessity and its scope. Therefore, we decide to cancel the interim injunction which was issued on 14.11.96.
Justice A. Matza: I agree
Decided as in the decision of President Barak
....Is Israel violating the UN Torture Convention by continuing to employ the "shaking" interrogation technique, which had prevented ninety attacks in the two years prior to the Israeli Supreme Court decision? Would State security be of secondary importance to the Convention's general anti-torture prohibition?
2. In July, 1999, the Israeli Supreme Court revisited the issue (above elimination of the temporary injunction against the tactics in question), based on six separate applications--including one made to the Court by Israel's Public Committee Against Torture. The Court subsequently limited the "necessity" basis for these tactics, stating that:
Case reprinted in Supreme Court of
Israel: Judgment Concerning the Legality of the General Security
Service's Interrogation Methods (Sept. 6, 1999), 38 INT'L LEGAL MAT'LS
1471 (Nov., 1999). The Jerusalem Post reported that Prime
Minister Ehud Barak said that he respects the decision but that
3. In 1992, Russia proposed a UN global Human Rights Police Force to protect human rights throughout the world. Russia's Foreign Minister to the UN, Andrei Kozyrev, made this proposal to the UN Human Rights Commission. The Russian Minister proposed an independent body of moral leaders who could study a particular situation and render advisory judgments about a State's conduct regarding its own citizens. This proposal was a radical departure from prior Soviet doctrine. Human rights enforcement was uniformly characterized as an issue that fell exclusively within the internal affairs of the Soviet Union or its member States--as opposed to acknowledging the UN's organizational role in human rights enforcement. Socialist States had routinely expressed the concern that UN programs intervened in the internal affairs of the targeted State.
4. In 1996, documents made public by the Pentagon revealed that the US Army's "School of the Americas" encouraged its Latin American police and military students to use torture against insurgents. Training manuals written in Spanish advocated tactics that violated express US domestic and foreign policy. This school opened in Panama in 1946 and was transferred to Fort Benning, Georgia, in 1984. The school's graduates include the leader of El Salvador's death squads and Panama's former dictator, Manuel Noriega. The manuals were destroyed in 1996, when their previously top secret contents became public (Pentagon Details Army Manuals Urging Latin Military to Torture, Sept. 22, 1996, New York Times News Service).
For the first time, a European Union member has been found
guilty of torture. The European Court of Human Rights condemned
France in a July 1999 judgment, ordering French authorities to
pay about $100,000 to Ahmed Selmouni, a man of Moroccan and Dutch
nationality. In a 1991 drug trafficking investigation, he was
raped, sodomized, and lost an eye when he was detained and beaten
by police officers near Paris. He is currently serving a 15-year
prison term on drug charges. (Story: New York Times--free registration
6. Given the events of September 11, 2001, this debate is likely to resurface in the international war on terrorism. In the movie The Seige, a US Army general uses force to get information from an Arab American regarding a pending terrorist attack to save many lives. Analyses of the torture issue in this context are available in W. Brugger, May Government Ever Use Torture? Two Responses From German Law, 48 AMER. J. COMP. LAW 661 (2000) & Comment, Torture of Terrorists in Israel: The United Nations and the Supreme Court of Israel Pave the Way for Human Rights to Trump Communitarianism, 7 ILSA J. INT'L & COMP. LAW 39 (2001).