The Israeli High Court Legitimizes Torture
Published 21 November 1996 @ 12 Noon
For the second time in less than 48 hours the Israeli High Court, the highest judicial body in Israel, issued a decision which legally legitimizes the use of physical violence during interrogation of Palestinian detainees.
On 14 and 17 November 1996, the court issued decisions making it permissible for General Security Services (GSS) personnel to use “physical pressure” during their interrogations of Muhammad Hamdan from Beit Sira (near Ramallah) and Khadir Mubarak from Halhoul (near Hebron).
Muhammad Hamdan, arrested on 7 October 1996, was subjected to torture, including violent shaking by GSS personnel. On 12 November, Hamdan’s attorney appeared before the Israeli High Court and obtained an injunction preventing GSS personnel from continuing the use of physical pressure against Hamdan. However, following an appeal from the GSS, the High Court withdrew its injunction, affirming that “increased physical pressure”including violent shaking, which can cause death and brain damage, could be legally used against Hamdan during interrogation.
Khadir Mubarak, detained on 21 October 1996, and held in the interrogation section of Ashkelon prison, also appealed to the Israeli High Court to prevent the use of torture during his interrogation. On 17 November, the court rejected the appeal and re-affirmed the use of physical violence against detainees.
The High Court justified the use of violence and torture, including violent shaking, because Hamdan and Mubarak were detained due to suspicions that they possessed information about expected suicide bomb attacks. Neither Hamdan or Mubarak were arrested for their participation in a bomb attack or any activity of this kind.
The recent decisions of the High Court are considered dangerous and constitute a real threat to the lives of Palestinian detainees held in Israeli prisons. According to the ruling, GSS interrogators are provided legal backing to implement torture techniques which includes violent shaking.
The court’s ruling exceeds the recommendations of the Landau Commission that provided for “moderate physical and psychological pressure,” giving even greater freedom to Israeli interrogators in their use of torture. The Landau commission, headed by Moshe Landau, the then head of the High Court in Israel, was formed to investigate the practices of the GSS due to reports of widespread torture in Israeli detention centres. The report, issued in 1987, concluded that it is permissible to use physical and psychological pressure against Palestinian detainees to obtain confessions, and also endorsed specific torture techniques and methods which were never released to the public. At the time of its release, the report evoked wide criticism from the international community, especially United Nations bodies and human rights organizations, due to its legalization and legitimization of torture. Notably, Israel is the only state in the world to enact or adopt such a decision.
The ruling further justifies the use of force, giving it legal value and legitimacy, despite the fact that the use of torture is prohibited in all cases according to international human rights standards.
Article II, sub-paragraph 2 of the United Nations Convention Against Torture, which was adopted in 1984 and to which the Israeli government is party, states that “no exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be involved as justification of torture.”
In addition, the decisions of the Israeli court are a grave breach of the Fourth Geneva Convention which state in Article 146 and 147 that contracting parties “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention” which includes, “wilful killing, torture or inhuman treatment.”
The Palestinian Centre for Human Rights considers the decisions of the Israeli High court to be extremely dangerous as they give legal license to the use of torture, which has resulted in the deaths of Palestinian detainees.
The Palestinian Centre urges the international community to fulfil its legal obligations to intervene in the continuing use of aggressive torture by Israel and to take penal measures against the perpetrators of such crimes. Furthermore, the Palestinian Centre also calls for all members of the Palestinian, Israeli and international community to protest the decisions by the Israeli High Court which provide for increased physical pressure against detainees during interrogation.
