PRESS RELEASE

The Israeli Attorney General Promises to Provide Legal Protection from Criminal Liability to GSS Interrogators who use Torture

Ref: 25/2000

Date: 20 February 2000

The Palestinian Centre for Human Rights is following with concern the ongoing developments in Israel aimed at allowing the Israeli General Security Service (GSS) agents to use torture against Palestinian detainees. In a recent development, Israeli media reports claim that the Israeli Attorney General promised the ‎GSS chief, that he would provide GSS interrogators with legal protection from criminal liability due to the use of torture against Palestinian detainees.

The High Court Decision

On 6 September 1999, the Israeli Supreme Court, sitting as the High Court of Justice issued its ruling on a number of applications submitted by human rights groups against the use of torture by the Israeli General Security Service (GSS). In its ruling the Court found that the GSS had been systematically employing illegal methods of torture in its interrogation of Palestinian detainees. The methods which the Court found to be illegal included shaking, shabeh (which involves hooding and handcuffing the detainee in painful positions for extended periods), sleep deprivation, loud music and frog crouching.

However, despite finding that the methods employed by the GSS were illegal and contrary to both the Israeli Basic Law and to international law (including the Convention Against Torture) the Court, later in its judgment, proposed the possibility that the Israeli Legislature could enact a law that would authorise the use of torture against Palestinian detainees. A possibility that the Court declined to take a position on, despite its own finding that such methods were contrary to both international law and Israeli Basic Law, without any exception.

Since the Court Decision

After the Court’s decision, on 15 September 1999, the Ministerial Committee for GSS Affairs, headed by Prime Minister Barak, established a commission to examine the subject, and to “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’)”.

In establishing the commission PM Barak expressed his concern that the High Court’s decision had seriously compromised the GSS’s efforts to uncover information regarding terrorist activities. GSS agents also complained that the decision severely hampered their efforts. Both these reactions make it clear that the GSS has, at least up until the time of the Court decision, employed illegal methods of torture in its interrogation of Palestinian detainees.

In mid-January 2000, the Committee reported to Prime Minister Barak that it had been unable to reach a unanimous conclusion on the matter. Instead the commission, which was headed by Deputy State Attorney Rachel Sucar and Deputy Attorney General Mani Mazoz, proposed three alternatives in accordance with the views of key Ministry of Justice and GSS officials.

The first proposal calls for the passage of a law that would allow GSS interrogators to use “moderate physical pressure”. This proposal essentially calls for legalising the state of affairs which existed before the Court decision.

The second proposal, supported by Sucar and Elyakim Rubinstein (Attorney General), calls for more moderate legislation which would give a priori permission to GSS interrogators to use “moderate physical pressure” in certain, rigorously defined cases, but would not provide the blanket approval envisioned in the first proposal.

The third proposal, supported by the Minister of Justice, Yossi Beilin, is to leave things as they are in the wake of the High Court decision, thus banning the use of “moderate physical pressure” altogether.

Since the findings were not unanimous, PM Barak will have to decide on his own what action to take.

PCHR expresses its deep concern at these developments. Firstly because torture is illegal under any circumstances, and no exceptions can be made. Secondly because the experience of thousands of Palestinian detainees who were tortured during the past 12 years while the GSS was working under the provisions of the Landau Commission of 1987 prove beyond any doubt that even the most rigorously defined guidelines to allow the use of torture in certain cases lead inevitably to widespread and uncontrolled employment of illegal torture methods by the GSS in Israel.

If legislation is passed in Israel along the lines of either of the two proposals suggested by the Ministerial Commission, this situation will continue as it has for the past 12 years, and the High Court’s historical decision will be rendered completely meaningless.

Until recently, indications were that the Prime Minister was tending towards the second option. On 15 February 2000, a meeting was held between PM Barak, the Attorney General Elyakim Rubinstein, Minister of Justice Yossi Beilin, and GSS officials to discuss the second proposal. The attorney general’s proposal is that the existence of ‘extenuating circumstances’ can exonerate a GSS interrogator from criminal liability as a result of employing torture against a detainee.

According to the attorney general’s proposal, instead of being used as a de facto defense in a criminal trial, this “exit route” would be provided de jure. The proposed law would empower the attorney general to authorise the use of torture if the GSS could offer persuasive evidence that the person being interrogated was an immediate threat to the lives of others.

On 17 February 2000, the Israeli newspaper Haaretz reported that the outcome of the meeting was that the GSS Chief Ami Ayalon had dropped his demand for the enactment of legislation legalising torture (the first proposal). However, no conclusion was reached regarding the second proposal, and a further committee was appointed to continue investigating the matter. In the meantime, the attorney general reiterated his promise to the GSS officials that he would grant legal protection to any interrogator who was compelled to use torture in singular cases.PCHR believes that these latest developments illustrate the Israeli government’s determination to continue to use torture against Palestinian detainees. While the Court’s decision represented a milestone in the battle against torture, the situation has very quickly returned to a situation of acute danger, with the highest officials of Israeli government currently considering the enactment of legislation to allow torture in certain ‘exceptional’ cases.

This situation would resemble that under the Landau report, during which thousands of Palestinian detainees were tortured by the GSS interrogators in a systematic and routine manner.

Furthermore, the attorney general, defender of the rule of law and the public right, has declared repeatedly that he will provide legal protection to perpetrators of torture.

Palestinian, Israeli and international human rights organisations as well as the international community at large, and particularly the High Contracting Parties to the Fourth Geneva Convention, must act urgently to ensure that torture is not re-legitimized in Israel, by any means whatsoever.