On 25 May 2009, HaMoked filed a request to submit the concluding observations of the UN Committee against Torture to the Court as an exhibit in the petition filed in 2003 regarding secret prison facility 1391. The Committee, which monitors the implementation of the Convention against Torture by the States parties, convened during the month of May in Geneva and reviewed Israel’s fourth periodic report concerning its compliance with the Convention. In its concluding observations, the Committee issued demands to Israel as a State party to the Convention, including, inter alia, that it refrain from holding anyone in the secret prison facility known as 1391, or in any other secret facility, including in the future.
The information on which the Committee bases its concluding observations is obtained from periodic reports submitted by the States parties as well as other sources. The Committee received reports from HaMoked and other human rights organizations, which called attention to the matter of secret prison facility 1391, the existence of which was uncovered by HaMoked – Center for the Defence of the Individual in late 2002.
In 2003, immediately after uncovering the existence of the facility, HaMoked petitioned the High Court of Justice (HCJ) demanding it be shut down due to the strict prohibition on holding prisoners in an unknown location and without external supervision found in international humanitarian and human rights law. The HCJ has not yet delivered a decision on this matter and HaMoked’s legal battle continues; hence its request to submit the observations of the UN Committee in the framework of the ongoing proceedings before the Court.
In its defense, Israel has claimed before the Committee that no use has been made of Facility 1391 since 2006 and that no detainees were currently being held in it. Israel also claimed that all complaints of torture and ill-treatment of detainees in Facility 1391 had been investigated by the competent persons who had reached the conclusion that there was no cause to launch criminal proceedings against any of the persons involved. The Committee rejected Israel’s claims and, on termination of its session, published its demand that detainees no longer be held in the secret facility or any other secret facility, including in the future; that an impartial investigation be opened into allegations of torture and that persons responsible for torture of prisoners in the facility be held accountable. The Committee established that the existence of a secret prison facility within the territory of the State of Israel, which is a party to the Convention against Torture, is per se, a violation of the Convention, even if no detainees were held in it.
The demands set forth by the Committee in the matter of Facility 1391 and the human rights violations against those held in it, are yet another element serving to support HaMoked’s protracted battle to have the facility shut down and the persons responsible for running it along with anyone who participated in the torture and ill-treatment of prisoners brought to justice.
The Background for the Petition
The existence of Facility 1391 was uncovered by HaMoked in the course of its endeavors to locate detainees. During the Israeli invasion of West Bank cities in 2002 (Operation Defensive Shield), the military detained thousands of Palestinians and HaMoked received countless appeals from families asking to find where they were being held. Where tracing efforts failed to yield information, HaMoked was forced to submit petitions for writs of habeas corpus in order to reveal the whereabouts of the detainees. In the framework of two such petitions, a police officer at the Kishon detention facility told HaMoked that the detainees were being held in a secret facility which was part of the Kishon facility administratively, but that its geographic location was unknown. HaMoked insisted, and the State was forced to admit that a secret detention facility, 1391, existed and that detainees were being held there for extended periods of time. At the same time, HaMoked began collecting detailed testimonies from detainees regarding the illegal interrogation methods used at Facility 1391, which included torture, ill-treatment and inhuman holding conditions.
In 2003, HaMoked filed a petition regarding the illegality of the prison facility and demanded it be shut down. In a hearing held in the petition on 15 December 2004, the Court criticized the position of the State which found no fault in holding detainees in an unknown location. In its response, the State informed the Court that at that given moment no detainees were being held in the facility. The State subsequently notified of restrictions placed on the use of Facility 1391, including that only an officer holding the rank of Major General would have the power to authorize holding of detainees in the facility and that no Israeli citizens or Palestinian residents of the Territories would be held there. The remaining details of the arrangement formulated by the State were kept confidential.
The Court ordered the State to submit a notice, ex parte, each time a detainee was held in the secret facility in order to enable the Court to deliver the appropriate decision in each and every case.
During the second Lebanon war, in the summer of 2006, the State notified, in response to HaMoked’s query, that Lebanese citizens were indeed being held in Facility 1391. HaMoked represented some of them before the courts. In January 2009, HaMoked demanded to know whether Israel was holding detainees from the Gaza Strip in Facility 1391 and was given a negative answer.