In 2003, HaMoked: Center for the Defence of the Individual filed a public petition against the very existence of a secret incarceration facility in Israel, Facility 1391, located in a secret military base in central Israel. Testimonies gathered by HaMoked suggested that under the shroud of secrecy and in the absence of public and judicial scrutiny, detainees in the Facility were subjected to humiliating and inhuman holding conditions and to unacceptable interrogation methods amounting to torture. In the response to the petition, the State Attorney’s Office denied the claims, and added that in the previous five years only a few detainees had been held in the Facility and that the state had undertaken various restrictions concerning future use of the Facility. In 2006, during the second Lebanon war, the state notified the court that the Facility was again in use, use which it defined as “limited”.
[1]In 1999, the HCJ ruled that the ISA’s interrogation methods, which include “physical means” – a euphemism for torture – are unacceptable and prohibited
The court refused to consider the claims about wrongful interrogation methods practiced in the Facility, maintaining that specific and concrete claims should first be placed before the competent authorities. The petition was therefore limited to the question of the secrecy of the Facility’s physical location.
[2] Recently, in January 2011, seven years after it was filed, the court dismissed the petition, noting in its judgment that “the Facility undergoes routine external inspections”, and that “The review bodies will presumably hold thorough inspections of the holding conditions and ensure that they are in keeping with the law.
[3]Years before, the HCJ had demonstrated the same passivity and “lack of will” to handle the issue, in two individual petitions filed by HaMoked following the enforcement authorities’ refusal to open criminal investigations over concrete claims of torture in Facility 1391. Thus, in a short judgment, the HCJ rejected both petitions, in the context of which the authorities were required to investigate the complaints made by the petitioners, Palestinian residents of Nablus, who claimed they had been tortured during their imprisonment and interrogation at the secret facility.
[4]One of the petitioners recounted he had been brought to the Facility with an opaque bag over his head. On arrival at the facility, he was stripped naked in front of ten soldiers. He complained that he had been held at the facility in a tiny, dirty cell, the length of a mattress; the walls painted black, with no windows and only faint lighting. The petitioner said he had been forced to use a plastic garbage can as a toilet. The clothes he received were too large and he was not supplied with any underwear. The petitioner also claimed that throughout his detention in the Facility he had suffered from extreme cold, had not been allowed to shower for ten whole days and was deliberately deprived of sleep. During his interrogation he was tied to a chair in the “shabah” position and was even beaten by his interrogators, who also told him that he was in a secret location and that no one knew where he was and so they could hold him in detention for as long as they wanted. He was held at the Facility for about a month. Upon termination of his interrogation, he was tried for aiding a wanted person and served a prison sentence of 18 months.
[5]The other petitioner made similar complaints. Additionally, he reported that upon arrival at the secret facility he had been interrogated for five consecutive days, without sleep, while sitting on a backless bench. For a month and a half, he was never provided with a change of clothes. During his detention at the Facility, he suffered severe abdominal pains and contracted scabies. Throughout his detention he was never allowed to shave, and only twice was he taken for a walk in the yard. He was held at the Facility for some three months; at the end of his interrogation, he was indicted for possession of a weapon and served a prison sentence of 18 months.
[6]In their response to the individual petitions, counsels for the state rejected the petitioners’ claims. They explained that the Facility’s secrecy required detainees to wear a dark blindfold while en route to the Facility. The holding cells and conditions in the facility measured up to regular standards. The detainees received clean clothes and a change of underwear every week and were given the opportunity to shower once a day. Routine sanitary inspections were held daily. Holding the petitioners in isolation was imperative to the interrogation, but they were regularly examined by physicians. No basis was found for the allegations regarding brutality, deliberate sleep deprivation or humiliating stripping. Counsels for the state added that the allegations did not correspond with entries in the logs kept in the facility. Thus, for example, there was no complaint on record from the first petitioner regarding his holding conditions during the detention. Additionally, there were inconsistencies in his testimony to the Inspector of Complaints by ISA interrogees (i.e., the ISA complaints examination unit, subordinate to the State’s Attorney’s Office).
[7] Regarding the other petitioner, his complaint about lack of change of underwear was found credible and an internal inquiry was held at the facility in its wake. However, factual gaps were found in his complaint too. According to existing records, he was allowed a walk in the yard at least three times. He was indeed intensively interrogated given the severe suspicions against him, but not for a five day period, and in any case, was given two rest periods.
The petitions were rejected based on this response by the state. It was found that the State Attorney’s Office had broad discretion in the matter of launching a criminal investigation – even when regarding complaints of torture – and that both the scope of the examination and the final decision not to launch an investigation were reasonable. The HCJ also rejected the request to publicize the findings of that examination.
Was the decision not to launch a criminal investigation in fact reasonable? Was the state’s response that the complaints were baseless in fact convincing? Is it really enough to hold just an administrative inquiry of such grave suspicions? The HCJ answered all these affirmatively. But factual lack of clarity remains: e.g., it is impossible that the second petitioner received just three walks in the yard during his three months at the facility; the log entries about his receiving only two rest periods during his interrogation are unclear considering the fact that the duration of the interrogation is unknown. Additionally, the fact that detainees did not complain of torture during their interrogation cannot be considered significant. It stands to reason that they avoided doing so out of fear of being harmed.
Despite the denials, allegations about withholding of showers and shaving, deliberate deprivation of sleep, exposure to extreme cold, sexual humiliation and physical violence during interrogation cannot be ruled; especially as similar complaints appear in the testimonies of other detainees, some supplemented to the petitions. In a situation of clashing versions, it is vital to know what steps the state representatives took in the examination, other than reviewing the facility’s records, which are hardly likely to contain entries about unusual activity. In order to be convinced by the state’s response, the HCJ should have inquired, inter alia, whether interrogators and warders at the facility were questioned; whether a polygraph was used in questioning them or the complainants; whether audiovisual recordings of the interrogations were examined; whether the closed-circuit camera system likely installed there was examined; whether a surprise examination was conducted in order to inspect up close the holding conditions in the facility. The fact that the complaints were examined by an internal entity, part of the same organization as those allegedly involved in the acts which prompted the complaints, even raises concerns as to the independence of the preliminary examination, especially as its process and findings have not been revealed.
As a rule, in cases of suspected torture – especially in a secret facility, which the level of security placed upon it is unclear and known not to be under ICRC scrutiny as required – the enforcement authorities must launch a proper criminal investigation upon receiving the complaint. When there is suspicion of such a grave violation of human rights, the HCJ is required to exhibit judicial activism, to adopt an inquisitorial style and examine with a “fine toothed comb” the complaints and the state’s conduct. At the very least, the HCJ, should have required satisfactory answers from the state’s representatives, particularly when the petitions presented data according to which the petitioners’ claims were similar to testimonies by other detainees who had been held in the Facility. Despite this, the HCJ exhibited judicial restraint which is nothing short of “eye rolling”.
In international law, the prohibition on torture and inhuman and degrading treatment is absolute. It applies to each and every person, no matter who they are, at all times. The prohibition is enshrined in a number of treaties and international documents to which Israel is party and in international customary law. In Israeli law, torture amounts to a criminal offence and is in contravention of Basic Law: Human Dignity and Liberty in that it injures the dignity and physical integrity of a person. Torture cannot be sanctioned, not even through the limitations clause in the Basic Law, because the prohibition on torture is considered jus cogens, namely, a rule from which no deviation is accepted. In a situation of armed conflict or occupation, the absolute prohibition on torture is doubly important, since in a situation of war and chaos, the risk of cruel and unusual conduct on part of individuals increases, and at the same time, more and more individuals – prisoners of war, civilians uninvolved in the hostilities and security detainees – are exposed to harm and abuse.
In 1999, the HCJ ruled that the ISA’s interrogation methods, which include “physical means” – a euphemism for torture – are unacceptable and prohibited; methods such as shaking, deliberate sleep deprivation, tight handcuffing, handcuffing in the “shabah” or “frog crouch” positions, long periods of loud music, and covering the interrogee’s head with an opaque sack which causes a suffocating sensation. However, the HCJ noted that retroactively, an interrogator-torturer may be exempted from criminal liability based on the “necessity” clause in the Penal Law. At the same time, it was made clear that the “necessity” clause cannot be used as a source of authority for use of unacceptable interrogation methods and does not provide a basis for establishing a predetermined procedure regarding physical means which may be used in a situation of “necessity”.
[8]This opening left by the HCJ impaired the absolute nature of the prohibition and gave way to the development of a highly problematic procedure: evidence gathered by human rights organizations indicates that the “necessity” clause has become the legal source on which ISA interrogators base their “necessity interrogations”, in which unacceptable interrogation methods amounting to torture are used. Approval for conducting such interrogations is given in advance, apparently in coordination with the State Attorney’s Office and the Attorney General, based on an understanding and expectation that the interrogator-torturer will not be prosecuted, as it has been predetermined that he is acting under circumstances fitting the “necessity” clause.
[9] This practice is a violation of the HCJ judgment, but the HCJ does nothing to eradicate it even when it is provided with the opportunity to do so.
[10]
As with the petitions discussed herein, nowadays, when complaints of torture are made, they are not investigated by an external, independent body with due seriousness and diligence; instead, they undergo a “preliminary examination” by an ISA official who is subject to the State Attorney’s Office. Data published by HaMoked and B’Tselem reveals that although over 600 complaints of abuse by ISA interrogators were filed during 2001-2009, not a single criminal investigation was opened as a result.
[11]The HCJ, in its turn, “whitewashes” the procedure which allows for torture. The court employs a lax standard for judicial review, relying on nothing but an ordinary administrative examination of the suspicions. The State Attorney’s Office has broad discretion and its decisions not to launch criminal investigations into suspicions of torture are always deemed reasonable. Thus, in 2009, the HCJ dismissed on procedural grounds another petition which brought substantiated claims about continued use of torture in ISA interrogations and systematic violation of the 1999 judgment. The court, however, accepted the state’s declaration that the judgment “is implemented and upheld”, and advised the complainants to “exhaust proceedings” with the competent authorities, i.e., to seek a preliminary internal examination by the ISA.
[12]The “necessity” clause has become the legal source on which ISA interrogators base their “necessity interrogations”, in which unacceptable interrogation methods amounting to torture are used
The approach arising from the HCJ’s judgment echoes the retreat from the absolute prohibition on torture and the tolerance exhibited toward torturers, all in the name of the war on terror. Supposedly, in the framework of counterterrorism, a democratic state is permitted, and sometimes even obliged, to use unacceptable measures. Its representatives are allowed to be a little, or temporarily, “evil” in order to combat “evil incarnate”.
[13] This approach is a slippery slope and undermines the absolute prohibition on torture which stands irrespective of the identity of the enemy – real or imagined – or the time and place. Herein lies the evidence: if the state initially claimed that use of torture was limited to extreme cases of “ticking bomb”, allegations about torture are made also by detainees who were eventually indicted for relatively minor offences and jailed for short periods of time.
[14]Rejecting petitions dealing with torture with just a brief reasoning, without thorough scrutiny of the nature of the examination conducted by the law enforcement authorities, and without sending a clear and decisive message that the use of torture is abhorrent and strictly prohibited, does injustice to the principled, uncompromising approach which the HCJ itself had formulated its 1999 decision: in a democratic regime, not every effective measure is also an acceptable measure. The security and strength of a democratic state lie specifically in maintaining the rule of law, individual liberties and basic moral values.
More than ten years have passed since this precedent and in June 2009 the UN Committee Against Torture (CAT) published its review of the periodic report filed by Israel regarding its adherence to its commitments under the Convention against Torture. In its conclusions, the committee expresses concern over the allegations which keep surfacing regarding the ISA’s use of illegal interrogation methods. Additionally, the Committee expressed dissatisfaction with the situation of de-facto immunity from prosecution while hundreds of filed complaints have not yielded a single indictment. The committee instructed the Government of Israel to speedily and effectively investigate suspicions of torture through an independent non-ISA investigation mechanism, and to prosecute those responsible.
[15]It should be noted that upon joining the Convention against Torture, Israel included a reservation which does not allow the UN Committee against Torture to conduct confidential investigations following receipt of information regarding torture in Israel. In addition, Israel refrained from signing the protocol appended to the Convention which allows the committee members to hold inspections in incarceration facilities in Israel and instructs parties to establish an internal-national agency to conduct such inspections.
Alon MargalitThe author is a lawyer, formerly on staff at HaMoked: Center for the Defence of the Individual. He is currently a PhD candidate at the Institute of Advanced Legal Studies, University of London.
