Briefing of the Palestinian Centre for Human Rights for the United Nations Committee Against Torture in Consideration of the Third Periodic Report of Israel
(19 November 2001)
PCHR is an independent legal agency dedicated to the promotion and protection of human rights, democracy and the rule of law in the Occupied Palestinian Territories. The centre was established in 1996 in the Gaza Strip by a group of Palestinian lawyers and human rights activists. It provides legal aid to Palestinians who have been subjected to human rights abuses by both the Israeli occupation authorities and the Palestinian National Authority.
Introduction
The Palestinian Centre for Human Rights (PCHR) notes with grave concern the continued failure of the Israeli authorities to implement many of the provisions of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) in Israel and the Occupied Palestinian Territories. In response to the Third Periodic Report submitted by Israel pursuant to Article 19, PCHR wishes to provide the Committee with a parallel commentary on the reality of Israel’s implementation of the Convention since its last report submitted in 1998.
PCHR asserts that the General Security Services (GSS), other Israeli security organs and the Israeli occupation forces continue to violate many of the provisions of the Convention in their treatment or punishment of Palestinians residing in the Occupied Palestinian Territories. There is a clear pattern of torture and ill-treatment of Palestinian detainees in Israeli detention facilities where they have continued to be subjected to long periods of incommunicado detention and interrogation methods which constitute torture or cruel, inhuman or degrading treatment, including painful shackling, shabeh, sleep deprivation, denial of medical care, loud music, beatings, shaking, threats of physical or sexual abuse and insults. The use of administrative detention, in which Palestinians have been held without charge or trials or recourse to even the most basic requirement of judicial procedure, has continued throughout this reporting period. Members of the security services and Israeli occupation forces have continued to enjoy complete impunity for violations of the Convention against Palestinians in, or from, the Occupied Palestinian Territories.
The last year has witnessed an unprecedented escalation in violations of international human rights and humanitarian law by Israel in the Occupied Palestinian Territories including violations of Article 16 of the Convention. In particular, PCHR considers that the restrictions on freedom of movement imposed by the Israeli occupation forces in the Occupied Palestinian Territories should be considered in violation of Article 16. Closures have been imposed since the beginning of the occupation in 1967 at various times and in varying degrees. However, since the beginning of the Intifada, these closures have been severe and have resulted in the daily infliction of pain and suffering on Palestinian civilians who have been denied access to medical care (including emergency attention), access to their places of work, school, their families, food and medical supplies.
PCHR also wishes the Committee to consider the pattern of house demolitions in the Occupied Palestinian Territories by the Israeli occupation forces as constituting cruel, inhuman or degrading treatment within the meaning of Article 16.
Whilst the pattern of violations of the Convention in the OPT is extensive, for the purposes of brevity and urgency, in this report PCHR wishes to draw the Committees attention in particular to administrative detention and treatment of Palestinian detainees, the closure policy and house demolition. Case examples used in this report have been restricted to those persons who are resident of the Gaza Strip who have been subjected to torture or cruel, inhuman or degrading treatment or punishment by the Israeli security services, including the Israeli occupation forces, and on whose behalf PCHR has provided legal representation or assistance.
Israeli Supreme Court Ruling of 1999
Whilst PCHR welcomed the ruling of the Israeli Supreme Court, sitting as the High Court of Justice, on 6 September 1999 in which they found that the GSS was not authorized to use physical force during interrogation, PCHR expressed its immediate concerns that this ruling did not constitute a definite legal prohibition on the use of physical force, particularly in “special circumstances”. The court ruled on the authority of the GSS to use those methods under Israeli law, rather than on the legality of the methods themselves. Indeed, the court went so far as to encourage the promulgation of legislation supporting torture in interrogation,
“If the State wishes to enable GSS investigators to utilize physical means in interrogations, it must seek the enactment of legislation for this purpose” (paragraph 37 of the ruling). The Court ruling also gave tacit approval to the use of the defense of “necessity” for those members of the security services who may be prosecuted for acts of torture.
This court ruling, much quoted by Israel in its Third Periodic Report, clearly not only fails to fulfill the obligation contained in Article 4 of the Convention which requires the prohibition of torture, as defined in Article 1, in law, it indeed seeks to support the view of the State and its security organs that torture is permissible in “special circumstances”. The State of Israel has consistently used and continues to use the “self-defense” argument in an attempt to legitimize its illegal practices, including torture and cruel, inhuman or degrading treatment of punishment. This is evident from its Third Periodic Report. However, as the Committee expressly noted in its Concluding Observations to the Second Periodic Report of Israel, such arguments are in direct contravention of Article 2 (2) which expressly stipulates that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture”.
PCHR further notes that following the ruling, members of the government of Israel, including then Prime Minister Ehud Barak, made clear their intentions to protect members of the Israeli security services, the GSS in particular, from accountability for the torture or ill-treatment of Palestinian detainees. Clearly, there was at that time a lack of political will to adhere to international standards on the prohibition of torture and there were continued attempts to justify the use of torture as necessary in the fight against terrorist activities. Although, as noted by the State in its Third Periodic Report, several proposed draft bills were rejected by the government, PCHR wishes to reiterate that the government has still failed to make any attempt to introduce a legislative prohibition on torture as demanded by the Convention. As this report will illustrate, the political will to comply in full with the provisions of the Convention on this and other issues still does not exist today.
In addition, whilst the Court recognized that the torture of detainees was in contravention of the Israeli Basic Law, no apology was issued to the victims of torture and no efforts were made to compensate the victims for their suffering.
Furthermore, PCHR notes that, as will be illustrated below, since the 1999 ruling, which Israel has claimed amounts to a prohibition of the use of certain methods of physical force, those methods, and other forms of physical force, have continued to be used by the GSS and other security services in the interrogation of Palestinian detainees.
Torture and Cruel, Inhuman or Degrading Treatment in Detention
According to PCHRs records, more than 1500 Palestinians have been arrested since the beginning of the Intifada in September 2000 and more than 2000 Palestinian prisoners are currently in detention in Israel. Of these prisoners many have been, or are currently being subjected to methods amounting to torture or cruel, inhuman or degrading treatment, including administrative and incommunicado detention.
Administrative Detention
Despite the comments of the Committee in its Concluding Observations to Israel’s Second Periodic Report, administrative detention continues to be regularly used by the Israeli authorities. Under this procedure, arrest orders are issued by the Israeli District Military Commander in Palestinian-controlled areas in the Gaza Strip and the West Bank. Administrative detention involves the denial of the rights to judicial processes, including the right to a fair trial, access to legal counsel, the knowledge of a charge. As of the end of September 2001, 26 Palestinians remain in administrative detention in Israel.
Incommunicado Detention
Many Palestinians arrested in the Occupied Palestinian Territories have continued to be subjected to prolonged periods of incommunicado detention, as illustrated in the examples below. The denial of access to legal counsel, and family or medical visits, facilitates torture and other forms of ill-treatment. The Israeli Supreme Court has consistently refused requests for access to legal counsel submitted by PCHR on behalf of its clients (in many cases there is an unreasonable delay in responding to these complaints) and has also refused to examine the legal basis for permitting incommunicado detention.
Methods of Interrogation
The Supreme Court Ruling in 1999 found that some forms of physical pressure, including shaking, shabeh and sleep deprivation, “impinged upon the suspect’s dignity, his bodily integrity and his basic rights beyond what is necessary” (Paragraph 27). However, contrary to indications in Israel’s Third Periodic Report, these methods and others are still being used against Palestinian detainees with alarming regularity.
Case 1:
Mahmoud Mohammad el-Ghoul, age 51 from Gaza. Mahmoud was arrested on 27 January 2001 at the Rafah Border Crossing whilst attempting to cross back into the Gaza Strip after receiving medical treatment in Egypt for chronic heart disease. He was prevented from seeing his lawyer for seven days and underwent interrogation for two months. Immediately upon his arrest, Mahmoud informed his interrogators of his illness from which he has suffered for 4 years. Despite notification of his disease and its seriousness, Mahmoud was subjected throughout his period of interrogation to methods of physical and psychological pressure which PCHR believes collectively constitute torture within the meaning of the Convention. These methods included shabeh, sleep deprivation, isolation for long periods, pressure from collaborators to make a confession, threats of severe beatings and insults. In addition, Mahmoud only received medical treatment for his disease which was aggravated by the torture to which he was subjected following the intervention of the International Committee of the Red Cross. His hands and legs were bound throughout the visits to hospital. Mahmoud was eventually released on 5 June 2001 following a court decision that there was insufficient evidence to detain him on any charge.
Case 2:
Bassam Mousa Saber Hassan, age 27 from Beit Hanoun, Gaza. Bassam was arrested at Gaza International Airport by the Israeli authorities in 4 January 2000 as he was returning home from the pilgrimage (‘Omra) in Saudi Arabia. He was subjected to interrogation for a period of 47 days. During this period he was repeatedly refused access to a lawyer and PCHR submitted a request to the Israeli Supreme Court (through Israeli lawyers) for his right to access to a lawyer. The request was denied without reason. Bassam was denied access to a lawyer for 21 days. During his period of interrogation, Bassam was subjected to physical and psychological methods which PCHR believes collectively amount to torture as defined in the Convention. These methods included sleep deprivation, shabeh, loud music, painful handcuffing, pouring cold water on his body, sitting for prolonged periods on small chairs resulting in stiffening painful joints and the use of collaborators to pressure him makes a confession. Bassam was sentenced on 11 September 2001 to 22 months imprisonment.
Case 3:
Nasser Mass’ud Ayyad, from Gaza city. Nasser, a member of the Palestinian Presidential Guard (Force17) was arrested near the Netzarim settlement south of Gaza city on 29 January 2001. He was beaten during the initial hours of his interrogation before being transferred to Askelon Prison in Israel. Upon his arrival at the prison, Nasser was told by his interrogators that they had received permission to use “physical pressure” on him. During his first week of detention, Nasser was not permitted to sleep and was allowed out of his cell for ten minutes each day. During his interrogation, Nasser was repeatedly beaten about the face, pressure was applied to the chains on his hands and legs, he was tied to a small chair, held in a chokehold and subjected to violent shaking. During his second week of detention, Nasser was forced to stand for an entire night while a hot, bright light was shone in his face from a close distance. The interrogation continued following treatment for his eyes. His was allowed only four hours sleep per night. He was subjected to repeated threats to kill his family, and his father in particular (his father Mass’ud Ayyad was later killed in a targeted assassination). Nasser was repeatedly denied access to legal counsel until 12 March 2001 and remains in detention awaiting trial.
The above cases are summaries of affidavits given to PCHR by the victims.
Transfer of Prisoners
All of the Palestinians arrested by the Israeli authorities are held in prisons and detention centres inside Israel. Upon arrest, Palestinians in the Gaza Strip are held in detention centres often within settlements or in Erez Crossing for the initial period of investigation. In general if the offence is minor the prisoners are often remain in detention in the initial location. However, if following security checks the arresting officer wishes to continue the investigation further, or if the offence is more serious, the prisoner is transferred to a prison inside Israel. In the case of those arrested in the Gaza Strip, this is usually Ashkelon Prison. Prisoners are then moved again to other prisons inside Israel for the purposes of introducing greater psychological pressure and to facilitate the use of collaborators (see the following section). The transfer of prisoners outside of the Occupied Palestinian Territories by Israel is a clear violation of international humanitarian law (Articles 49 and 76 of the Geneva Convention Relative to the Protection of Civilians Persons in Time of War of August 12, 1949). Furthermore, in transferring prisoners outside of the Occupied Palestinian Territories, the Israeli security services are ensuring that prisoners are unable to receive visits from family members or even from their chosen lawyer. Since most Palestinian lawyers in the Occupied Palestinian Territories are routinely denied access to Israel to consult with their clients, the transfer of prisoners to Israel ensures that prisoners have little or no access to their own legal counsel. PCHR is the only provider of legal aid to Palestinian prisoners in the Gaza Strip but its lawyers have, since 1996, been continuously denied access to clients held in Israel. This has forced PCHR to instruct Israeli lawyers to act on their behalf in representing and visiting clients inside Israel. The prohibitive costs of Israeli legal fees has created a serious financial burden on PCHR and other providers of legal aid and ensures that those prisoners who are not able to secure free legal counsel may have no access to legal counsel of their choice. The restrictions on the freedom of movement of Palestinians residing in the Occupied Palestinian Territories have intensified in the last year and as a result it is now impossible for family members to visit relatives in prison in Israel.
Use of Collaborators
In Israeli jails collaborators are commonly used as a means to exert psychological pressure on individual detainees and on the Palestinian detainee population inside Israeli prisons, though PCHR has also received some reports that collaborators have been used to exert physical pressure on detainees. In addition to placing a degree of psychological pressure on individual prisoners which may be in contravention of Articles 1 or 16, the presence of collaborators within Israeli prisons can be seen in the context of the attempt to create an atmosphere of mistrust and tension among Palestinian detainees which creates additional pressure on prisoners who are already prevented from receiving family or lawyer visits as a result of the closures.
Prison Conditions
PCHR is also concerned that the conditions of detention to which Palestinian prisoners are subjected in Israeli jails contravene international standards. PCHR has received reports that Palestinian prisoners are often held in deteriorating and overcrowded quarters, exposed to extremes of temperature and inadequate standards of hygiene in prison accommodation. They are generally provided with poor quality and insufficient quantities of food and there is a general failure to provide prisoners with adequate medical care as detailed in the case of Mahmoud el-Ghoul. In addition, there is clear discrimination between the standards of prison conditions for Israeli prisoners and for Palestinian prisoners held in Israeli prisons.
Impunity for Torturers
The cases described above are just some of the victims of torture or ill-treatment by the GSS during detention in which PCHR has been involved since the beginning of the Intifada. Complaints regarding the use of such methods on Palestinian detainees have been submitted to the Israeli Supreme Court by PCHR and other human rights organizations and concerns regarding the pattern of torture or cruel, inhuman or degrading treatment or punishment has been addressed to the Israeli authorities by international human rights organizations including Amnesty International. However, members of the Israeli security services and the Israeli occupation forces responsible for the use of such methods continue to enjoy impunity for their illegal practices. In one of the more famous cases of impunity for state torturers, those members of the Shabak, Israeli security services, who were believed to be responsible for the deaths in detention of Subhi and Majdi Abu Jamea, suspects in the “Bus 300 Affair” in which an Israeli bus was hijacked by four Palestinian men, were given amnesty by the former President, Hiyam Herzok, on 26 June 1986. The amnesty was granted despite overwhelming evidence that the two had been killed in custody on the order of then head of the Shabak, Abraham Shalom, that those involved in the initial investigation had lied and that there was serious doubt regarding the independence of the investigation and despite continued calls from human rights organizations to initiate a new investigation. The continued refusal of the Israel to conduct a thorough, independent and impartial investigation into these deaths signifies that the attitude of the state prevailing at that time regarding the need to bring perpetrators of torture to justice has little changed. In light of the State’s total failure to bring the perpetrators of this crime to justice, PCHR is preparing a case against the State of Israel and the leaders of the Shabak in respect of the deaths in detention of Subhi and Majdi Abu Jamea under the principle of universal jurisdiction for acts of torture. The continued impunity enjoyed by members of the security services for acts which constitute torture or ill-treatment of Palestinian detainees is a serious breach of the Convention.
Compensation and Rehabilitation
PCHR has no evidence to indicate that any of those prisoners from the Occupied Palestinian Territories who have been subjected to torture, or cruel, inhuman or degrading treatment by the GSS or members of any other security services since Israel’s ratification of the Convention on 3 October 1991 have received compensation or have undergone any form of rehabilitation following their torture. This is in contravention of Article 14 of the Convention.
Throughout the first year of the Intifada, the closure policy, which has been used by the Israeli occupation forces in the Occupied Palestinian Territories since the beginning of the occupation, has been greatly intensified. Palestinian civilians residing in the Occupied Palestinian Territories have been subjected to an unprecedented level of restrictions on their freedom of movement. The total or even partial closures imposed between Israel and the Occupied Palestinian Territories, between the West Bank and the Gaza Strip and even with the West Bank and the Gaza Strip, have resulted in the prevention of access for millions of Palestinians to their places of work, to schools, hospitals, shops, and family members. The establishment of military checkpoints throughout the Occupied Palestinian Territories, including within areas supposedly controlled by the Palestinian Authority, has resulted in the most serious cases in death due to delays imposed by Israeli soldiers on passing through checkpoints to gain access to emergency or even regular medical care. According to PCHRs reports, more than 25 persons have died at checkpoints after having being subjected to repeated delays or having been issued blanket denial of access through checkpoints. These victims have included pregnant women in labour, persons having cardiac arrests etc. Hundreds of thousands of Palestinian civilians in the Occupied Palestinian Territories are being subjected to daily cruel and degrading treatment by Israeli soldiers at checkpoints, including being subjected to random shooting with live bullets and tear gas, beatings, verbal insults and taunting and clearly unnecessary delays which often last for hours and even days. PCHR believes that this is a deliberate policy of humiliation of the Palestinian population and as such constitutes ill-treatment within the scope of Article 16 of the Convention.
House Demolitions
Although throughout the occupation Israel has continued to destroy Palestinian homes and property, in the last year Israel has escalated this policy of house demolition and has completely demolished more than 380 houses in the Gaza Strip alone and damaged hundreds more, leaving thousands of people homeless, the majority children. The house demolitions are carried out in circumstances which inflict maximum trauma and suffering on the Palestinian civilian population in what can be seen as reprisatory attacks prohibited in Article 33 of the Fourth Geneva Convention. These demolitions usually occur at night and no prior warning is given. Residents are awakened by the sound of bulldozers and tanks and are given little or no time to remove any belongings from their homes before the demolition begins.
Case 4:
Mohammad Musbah Suleiman Abu Karsh. Mohammad and four members of his family lived in a two-story villa in Sheikh ‘Ejleen, Gaza. On 7 April 2001 Israeli occupation forces fired at the houses in the area and the family were forced to leave the property for fear of being shot. When Mohammad returned the following day, his home had been completely demolished. He had received no prior warning regarding the destruction of his property. On 23 April 2001 PCHR submitted a complaint to the military attorney of the Southern Command and the compensation officer of the Israeli Ministry of Defense on behalf of Mohammad requesting an investigation into the incident, calling for compensation for the destruction and calling upon the authorities to halt such arbitrary measures against Palestinian civilians in the OPT. On 27 June 2001 PCHR received a response from the office of the Israeli military legal advisor in which it was stated that the complainant had no right to submit such a complaint, that the house had been demolished for security reasons (which were not specified) and that the owner was not entitled to compensation.
Case 2:
Fuad Mohammad el-Jafarawi. Fuad owned five two-story houses located at Salah el-Din Street near the Kfar Darom settlement in central Gaza. On 20 and 21 November 2000, one of the houses was completely destroyed and several others were damaged by the Israeli occupation forces. No clashes were reported from the area at that time. The remaining houses were destroyed some days later in a similar incident that was not preceded by any clashes between the Israeli occupation forces and Palestinian gunmen. Fuad received no prior warning from the Israeli authorities with regards to this destruction. In January, PCHR submitted a complaint on behalf of Fuad to the Israeli military legal advisor, to the military attorney of the Southern Command and the compensation officer of the Israeli Ministry of Defense requesting an investigation into the incidents, requesting compensation and calling for a halt these arbitrary measures. On 27 January 2001, PCHR received a response from the military legal advisor in which he stated that the demolition was a security measure (no further explanation was given) and that the owner had no right to request compensation.
As illustrated above the reasons given for these demolitions (reasons are rarely provided even following the submission of legal complaints) by the Israeli authorities are invariably that the property or land destroyed was providing cover for Palestinian gunmen and its destruction was therefore necessary in the interests of security. In reality, such claims have been largely unfounded and no evidence has been provided of the use of these properties or land by Palestinian gunmen. Preemptive demolitions have also occurred in areas and on properties which cannot reasonably have been used as cover for Palestinian attacks on Israeli forces or Israeli settlers. PCHR considers that the facts indicate that the Israeli destruction of Palestinian civilian property is part of a deliberate and continuing policy of cruel and degrading treatment of Palestinian civilians and that the frequency and degree of intentional suffering inflicted constitutes treatment which falls within the scope of Article 16 of the Convention. PCHR is also concerned at claims from the Israeli occupation forces that the victims of this policy are not entitled to submit requests for investigations into the destruction of their homes and property, or for compensation.
Conclusions
PCHR concludes that
· current and continued practices employed during interrogation by Israeli security services remain in conflict with the obligations contained in Articles 1, 2 and 16 and consequently, as concluded by the Committee in its Concluding Observations on Israel’s Second Periodic Report (18 May 1998), Israel remains in violation of Articles 1, 2 and 16 in this regard.
· the pain and suffering inflicted on the civilian population as a direct and intentional result of the continued and extreme nature of the closures imposed on the Occupied Palestinian Territories falls within the scope of Article 16 of the Convention.
· the continuing policy of house and property demolition constitutes ill-treatment which falls within the scope of the Convention and as such again constitutes a violation of Article 16.
· more than ten years after the ratification of the Convention, Israel still has not made any serious attempt to introduce a legislative prohibition on torture and ill-treatment.
· torturers continue to act with impunity and few members of the security services who have perpetrated acts of torture or ill-treatment have been investigated or prosecuted.
· requests for compensation or rehabilitation of Palestinian victims of torture have been consistently and continuously denied
Recommendations
PCHR calls upon the Committee to
· demand that Israel immediately ceases the practice of torture and ill-treatment of detainees.
· demand that Israel immediately cease the use of incommunicado detention.
· demand that Israel ensures that administrative detention does not constitute a violation of Article 16.
· demand that Israel immediately cease the collective penalties of closure on the Occupied Palestinian Territories.
· demand that Israel immediately cease the policy of house and property demolition.
· consider the policy of closures and the policy of house demolition as violations of Article 16.
· demand that Israel complies with all of the Articles of the Convention, including the promulgation of a legal prohibition on torture and ill-treatment.
· demand that Israel withdraw its reservation to Article 20 and make declarations in favour of Articles 21 and 22.
