Tuesday, 26 June 2001Association for the Prevention of TortureDear Sir or Madam:June 26th is the day on which the international community chooses to remember victims of torture. Tragically, some of those victims die. Some manage to survive. Yet, all of them demonstrate strength in the face of incredible inhumanity. It is appalling that torture continues to be such a prevalent crime in the third millenium. More incredible still – yet not any less true – is the fact that a member of the international community is debating the merits of legalizing torture. That member is the state of Israel. On 6 September 1999, the Israeli High Court of Justice (IHCJ) responded to a petition regarding the use of physical means by Israel’s General Security Service (GSS) interrogators. Admittedly, GSS officials hadused physical means, such as violent shaking, the Shabah position (which places the individual in a contorted and painful seated position), hooding, the playing of incredibly loud music, and sleep deprivation, in their interrogations of Palestinian detainees. The IHCJ rightly held that these physical means of interrogation “impinge upon the suspect’s dignity, his bodily integrity and his basic rights beyond what is necessary” and are consequently forbidden.The Court appropriately recognized Israel’s international commitment to prohibit the use of torture, cruel and inhuman treatment, and degradingtreatment. The President of the IHCJ stated that “[t]hese prohibitions are ‘absolute.’ There are no exceptions to them.” (para. 23) Yet, in the same judgement, the Court proceeded to contradict its earlier endorsement of the absolute nature of the prohibition of torture by declaring that “[i]f the State wishes to enable GSS investigators to utilize physical means in interrogations, it must seek the enactment of legislation for this purpose.” (para. 37) So while initially acknowledging the absolute prohibition of torture to which Israel is internationally bound, the IHCJ later suggested that an Israeli national law legalizing torture would suffice to empower GSS interrogators to use physical force in their interrogations. This appalling decision serves as an invitation to the Israeli government to pass legislation to formally institutionalize the practice of torture by GSS interrogators. And, in fact, the Israeli government has actively courted this idea. On 15 September 1999, the Ministerial Committee for GSS Affairs, headed by then Prime Minister Ehud Barak, struck a commission to “find a lawful solution to the use of physical force in interrogations of terrorist suspects, where there is an immediate security danger (‘ticking bomb’).” Three bills regarding torture were submitted to the Knesset, two seeking to prohibit its use and another one seeking to legalize it. Notably, this last bill, submitted to the Knesset by Reuven Rivlin and signed byover a third of Knesset members, proposed to allow GSS interrogators “to use special methods in interrogating [a] person, including means that entail the use of physical pressure on his body,” where there is reasonable suspicion that that person has information, which, if immediately revealed, could prevent an immediate danger to state security. On 15 February 2000, then Prime Minister Barak agreed to freeze all legislation related to torture for the following year or two. Furthermore, it was reported that the Israeli Attorney General issued a statement that he would not prosecute GSS interrogators who act “for dispensable need during the course of interrogation” – referring to torture – in individual cases. While the Attorney General stressed that he did “not have power in advance to allow interrogators to … adopt physical measures during the course of interrogation”, his former statement speaks of his willingness to not prosecute GSS interrogators who engage in physical force against detainees as part of their ‘interrogation methods.’Thus, the present state of the law on torture in Israel is the following: Physical means of interrogation are forbidden for the time  being due to the pronouncement by the IHCJ on 6 September 1999, yet that same ruling has paved the way for the Israeli legislature to sanction the use of torture by its GSS interrogators.Notwithstanding the fact that the IHCJ’s decision rendered the use of torture unlawful for the moment, there is strong evidence that physical means are still being used by GSS officials in their interrogations of Palestinian detainees. PCHR and other human rights organizations havedocumented dozens of cases in which GSS interrogators subjected Palestinian detainees to various forms of torture since 6 September1999. One such example involved a Palestinian who was detained earlier this year for a period of at least two weeks. On 29 January 2001, NsserMasoud Ayyad was picked up by Israeli soldiers near the Jewish settlement of Netzarim in the Gaza Strip. According to his affidavit, Ayyad was beaten in the face by three Israeli investigators at the settlement before being transferred to Ashkelon prison in Israel. During the first week of his detention, he was told by the investigators that they had permission to use physical means to extract information from him. Ayyad was deprived of sleep by the investigators for an entire week. One of the investigators stood on Ayyad’s handcuffs to apply painful pressure on his wrists, which became swollen as a result of the pressure. Another investigator applied serious pressure to Ayyad’s neck with his hands, making it painful for him to swallow. Ayyad was forced into the Gambaz position, which requires the victim to be seated on a small chair with feet and hands bound such that his forehead touches the floor. As a result of these ‘interrogation methods’, Ayyad periodically lost consciousness. In the second week of his detention, the light from an overhead projector was shone on his face during an entire night, after which Ayyad suffered burns to his face.Since the IHCJ’s decision, other methods, distinct from those specifically mentioned in the judgement, have been used by Israel to extract information from Palestinian detainees. For instance, the lawyers of detainees have been denied access to their clients, often for months at a time, providing an illegal disadvantage for detainees during their interrogations and time for evidence of torture methods to heal themselves, especially those that leave no physical scars. When these lawyers petition the IHCJ for permission to meet with their clients, that permission is commonly refused. In such circumstances, the IHCJ itself is exacerbating the practice of physical means against Palestinian detainees. In addition, the GSS works with Palestinian collaborators who masquerade as fellow detainees within detention facilities to pressure Palestinian suspects into revealing information to them. That pressure can take the form of threats of violence and actual beatings by the Palestinian collaborators. In Talmond Prison, in the north of Israel, Palestinian detainees below the age of 18 are imprisoned with Israeli criminal young offenders. These young Palestinians are left to fend for themselves against violence of all kinds committed by the common law criminals. As the matter presently stands, Israel has failed both legally and practically to live up to its international obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (1984). The IHCJ decision of 6 September 1999 does not go far enough to bring Israeli law in line with Israel’s internationalobligations:1. The IHCJ has invited the Israeli legislature to make a choice about torture, one of its options being the legalization of physical methods of interrogation. Such an invitation hardly satisfies Israel’s positive obligation under Article 2(1) of the Convention, which obligates State Parties to “take effective legislative, administrative, judicial or other measures to prevent acts of torture.” Israel’s failure to enact legislation to expressly prohibit the use of physical means against detainees is, in itself, a failure of its international obligation. By expressly leaving this legislative avenue open to the Knesset, the Court has managed to add a dangerous new facet to Israel’s pre-existing failure to abide by conventional law. 2. Israel is further bound to ensure that all acts of torture, without exception, are offences under its criminal law and that the “competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed.” The Israeli Attorney General’s statements to the effect that he may opt not to prosecute GSS interrogators who resort to physical means in circumstances that they deem ‘necessary’ threatens to undermine Israel’s obligations under Articles 2(1), 4(1) and 12 of the Convention. While the Attorney General refuses to give advance permission to GSS interrogators to use physical force against Palestinian detainees, he has reiterated that he may effectively ‘turn a blind eye’ if interrogators individually choose to employ physical means against detainees in some circumstances. 3. Israel has further failed to provide compensation and rehabilitation to the thousands of Palestinian detainees against whom physical means of interrogation have been routinely and systematically used. By failing to do so, Israel has breached its obligations under Article 14 of the Convention. It is noteworthy that the IHCJ deliberately refrained from addressing these issues in its decision of 6 September 1999. 4. Israel has also failed to ensure that statements made under torture are not adduced as evidence in any proceedings, as per Article 15 of the Convention. On this subject, the IHCJ remained silent as well. It is Israel’s obligation to re-examine the files of the thousands of Palestinian prisoners whose convictions involved evidence extracted by torture and to re-try and/or release those individuals. On this day, the Palestinian Centre for Human Rights would like to domore than to remind the international community of these breaches of international law by the state of Israel. PCHR calls upon the international community to use any and all effective means at its disposal to enforce Israel’s international obligations under the Convention. It is Israel’s legal obligation to ensure the prohibition of torture both in law and in practice, and it is the international community’s moral obligation to see that Israel does so. It is high time to hold Israel accountable for its illegal practices against Palestinian detainees. Let’s make June 26th more than a symbolicgesture of support for the victims of torture.Sincerely,Raji SouraniDirector General, PCHR