Opinion Editorials, March 1, 2010

 Israeli Unaccountability and Denial:

Suppressing the Practice of Torture

By Stephen Lendman

Al-Jazeerah & ccun.org, March 1, 2010

 
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 [email protected].
 
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.
 
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