A Question of Necessity? Need for Clarity on Torture in Israeli Law

Palestinian children march outside the Red Cross Headquarters in Gaza on Palestinian Prisoners Day (Reuters)

2017 marks the 50th anniversary of the Six-Day War, a deeply impactful conflict with ramifications still felt today. While the most visible result of Israel’s lightning victory over its neighbors in June of 1967 was the dramatic expansion of Israel’s borders, the war also heralded profound, and not always visible, consequences for Israeli institutions. One of the organizations most heavily affected was Shin Bet, Israel’s internal security agency responsible for addressing terrorism and other threats to public safety on Israeli soil. Following the invasion and occupation of areas such as the West Bank and Gaza Strip by Israeli forces, Shin Bet found itself not only working to preserve peace and security in the Jewish State, but also charged with the pacification of Arab-majority regions already chafing against Israeli rule.

Shin Bet was forced to rapidly adapt its tactics to both quell a general uprising and combat the smaller-scale threat of terrorism. One anecdote from this tumultuous learning period stands out in particular. Then-chief of Shin Bet Yossef Harmelin was observing a young interrogator questioning a Palestinian detainee when he saw the Israeli slap his prisoner. Harmelin discharged the interrogator on the spot, stating emphatically that the violence was not necessary.1

Harmelin’s story is subject to two contrary interpretations. For some, it represents a more chivalrous era of the intelligence community, during which senior officials held their subordinates accountable for human rights violations. Others may adopt a more skeptical approach: Perhaps that violence was deemed not necessary in that particular situation, but what about for other ones? Could more aggressive measures be needed to obtain information instrumental to saving Israeli lives? Surely slapping a known terrorist is acceptable, even if unfortunate. Desperate times call for desperate measures, as the saying goes.

Since 1967, the latter interpretation has prevailed in Israeli politics and defensive thinking. In 1987, a special commission headed by former Israeli Supreme Court President Moshe Landau was created to investigate allegations that Shin Bet interrogators routinely maltreated their detainees and lied about it while under oath. The commission viewed the primary wrongdoing of Shin Bet as perjury, not more intense interrogation methods, and in response merely recommended that the treatment in question be legalized. In particular it stated that, when non-physical interrogation methods could not obtain their objective, “the exertion of a moderate measure of physical pressure cannot be avoided.”2 Critically, the exact definition of “physical pressure” was only written in a secret appendix that remains classified. In November, 1987, the Knesset endorsed the recommendations of the Landau Commission in full, and for the next 12 years Israel bore the international notoriety of being the only signatory of the Convention Against Torture to have authorized the potential use of torture by its security services.

The Landau era came to a close in 1999 with the landmark decision in Public Committee Against Torture in Israel v. State of Israel (PCATI v. Israel). This case finally saw Israel’s Supreme Court — after years of point-blank refusing to hear such claims — entertain a case over whether or not Shin Bet had employed torture in its interrogations. In its decision, the High Court of Justice struck down the Landau Commission’s preemptive authorization of physical force, though it was careful not to brand the practices in question as ‘torture.’ Furthermore, the court found that interrogators accused of abusing their prisoners could claim the ‘defense of necessity’ under Israeli Penal Law.3 This concept states that actions which are normally illegal (for instance, assault) are permissible when done to prevent the commission of a greater crime (for instance, murder). According to many human rights advocates, this court decision merely exchanged the ex ante, or peremptory, authorization of the Landau model for an ex post, after-the-fact, judicial rubber stamp with no appreciable change in Shin Bet’s practices.

Indeed, in the 18 years since the PCATI v. Israel case, this complaint has been vindicated. Regardless of what the High Court of Justice may have intended with its ruling, the defense of necessity has become, in practice, a blanket protection for almost any questionable conduct in interrogations. Human rights scholar Yuval Ginbar states that “in each and every case where the use of violence has been acknowledged, explicitly or implicitly… the Attorney General has determined that such use has been justified by circumstances.”4 Furthermore, for cases in which allegations of mistreatment were raised by former detainees but denied by Shin Bet, the courts have invariably sided with the security services and have refused to allow proceedings.

Today, this current climate has the potential for change. In the case of As’ad Abu Gosh v. the Attorney-General, once more brought by the PCATI, Israel’s High Court of Justice will determine whether it will hear the case of a Palestinian who claims he was tortured by Shin Bet for over a month in 2007. The fact that Shin Bet did not deny that it used enhanced interrogation measures distinguishes this particular case, as it removes the agency’s traditional first line of defense. However, as per usual, after a closed initial review, the state prosecution refused to investigate further on the grounds that the action was necessary because Abu Gosh was involved in the manufacture of explosives. The PCATI subsequently filed a petition in 2012 to the High Court of Justice to take up the case. In September of this year a hearing was finally held, the first in years where Shin Bet’s interrogation methods were subjected to a thorough and in-depth questioning.

Initially, the PCATI’s stance centered around the inadequacy of internal review. In response, the Ministry of Justice appointed Col. Jana Modgavrishvili (Ret.) to oversee investigations. Modgavrishvili’s more intensive approach to torture claims seemed to undermine the argument that these allegations received insufficient attention and shifted the debate in the courts increasingly towards whether or not Abu Gosh was in fact tortured while in detainment. Shin Bet similarly shifted its stance to argue that, even though enhanced interrogation was employed, the tactics did not even rise to the level where the defense of necessity would be needed.5 The question before the High Court of Justice today therefore revolves primarily around how the 1999 ruling ought to be interpreted.

To this author, an ideal world would see the court strike down the defense of necessity in any case involving the abuse of a detainee for the purposes of extracting a confession. This reasoning is based on an emergent body of research which suggests that the neurological effects of torture impair an individual’s ability to provide credible information.6 However, it is improbable that the High Court of Justice will come to a similar understanding. Instead, the next best option would be for the court to take this opportunity to articulate clearly which practices are permissible in a general interrogation, which require the defense of necessity, and which are completely proscribed.

Already there is some indication that the court may be interested in setting more definitive standards. During the hearing of Abu Gosh’s case, several justices expressed their convictions that torture could never benefit from the defense of necessity.7 However, as nearly all controversy over enhanced interrogation in Israel has demonstrated, merely forbidding torture does little to protect the rights of detainees absent clear definitions. The definition provided in Article 1 of the Convention Against Torture, which Israel ratified in 1986, is a strong starting point, but it too has become muddled with respect to its requirement that torture inflict ‘severe pain’. This has proven a major point of contention as security officials and even Supreme Court Justice Hanan Melcer have argued that certain stress positions employed by Shin Bet would not be “severely painful” for an athletic individual.8

This brings me to my next point; Shin Bet’s interrogation methods have for too long existed behind a veil of secrecy. As far back as the Landau Commission, which enumerated acceptable practices but did not disclose them to the public, Israelis have had only the testimonies of former detainees and the limited disclosures of Shin Bet to use when assessing proceedings that take place behind the barbed wire and concrete walls of detention facilities. For a society which prides itself on a democratic character, this constitutes a lamentable blind spot. When and how Israel’s security forces may employ enhanced interrogation methods is a matter which should be subject to candid public debate. The High Court of Justice has a unique opportunity now to facilitate this debate by introducing badly needed standards and compelling Shin Bet to be more open regarding its treatment of detainees.

Israel today has changed dramatically from Yossef Harmelin’s time.  Further wars, the two intifadas and the threat of terrorism have created a perception in the minds of its intelligence officials that more and more forceful methods are needed to protect innocent lives. However, regardless of whether one agrees with the absolutist prohibition on force or the flexible notion of necessity, the decision between these two must be made in the light of day by the Israeli people themselves.

Thanks to Asaf Lubin for his support and help in reviewing this article.

 


 Sources:

 

1 Raviv, Dan, and Yossi Melman. Every spy a prince: a complete history of Israels intelligence community. Houghton Mifflin, 1991. p. 173.

2 Commission of Inquiry Into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activities, Landau Commission Report, 1987, para 4.7.

3 Public Committee Against Torture in Israel v. State of Israel, VERSA 1-41, May 26, 1999, paras 34-35.

4 Ginbar, Yuval. Why not torture terrorists?: moral, practical, and legal aspects of the ticking bomb justification for torture. Oxford: Oxford University Press, 2010. pp. 213-214.

5 Bob, Yonah Jeremy. “Shin Bet enhanced interrogations to stop ticking bombs – legal or torture.” The Jerusalem Post | JPost.com. October 22, 2017. Accessed October 28, 2017. http://www.jpost.com/International/Ticking-bomb-507917.

6 O’Mara, Shane. Why Torture Doesn’t Work: The Neuroscience of Interrogation. Cambridge, MA: Harvard University Press, 2015. p. 3.

7 “HCJ 5722/12 As’ad Abu Gosh et al. v the Attorney-General et al.” Public Committee Against Torture in Israel. November 15, 2017. Accessed November 20, 2017. http://stoptorture.org.il/hcj-asad-abu-gosh/?lang=en.

8 Bob, Yonah Jeremy. “Shin Bet enhanced interrogations to stop ticking bombs – legal or torture.” The Jerusalem Post | JPost.com. October 22, 2017. Accessed October 28, 2017. http://www.jpost.com/International/Ticking-bomb-507917.

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