Follow UNISPAL Twitter RSS
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION
Third periodic reports due in 2000
* For the initial report of Israel, see CAT/C/16/Add.4; for its consideration, see CAT/C/SR.183 and 184 and Official Records of the General Assembly, forty-ninth session, Supplement No. 44 (A/49/44) paras. 159-171.
For the special report submitted at the request of the Committee, see CAT/C/33/Add.2/Rev.1; for its consideration, see CAT/C/SR.295 and 296 and Official Records of the General Assembly, fifty-second session, Supplement No. 44 (A/52/44), paras. 253-260.
For the second periodic report see CAT/C/33/Add.3; for its consideration, see CAT/C/SR.336, 337 and 339 and Official Records of the General Assembly, fifty-third session, Supplement No. 44 (A/53/44), paras. 232-242.
GE.01-43043 (E) 230901
* Available for consultation in the Secretariat’s files.
2. Israel signed the Convention on 22 October 1986 and deposited its instrument of ratification with the Secretary-General of the United Nations on 3 October 1991. In accordance with Article 27.2 of the Convention, the Convention entered into force for Israel on 2 November 1991.
3. Israel submitted an initial report in 1994 (CAT/C/16/Add.4), a special report in 1996 (CAT/C/33/Add.2/Rev.1) and a second periodic report in 1998 (CAT/C/33/Add.3).
5. The Supreme Court, sitting as the High Court of Justice, had before it seven separate petitions challenging the methods used by the General Security Service (as it was then called) in the investigation of terrorist suspects. The importance of this decision is reflected in the fact that the case was heard by an expanded Supreme Court panel consisting of nine Supreme Court justices.
6. The case before the Supreme Court dealt with claims and allegations by the petitioners that certain interrogation methods used by investigators of the General Security Service during investigations were illegal. The State did not accept the contentions of the petitioners that the interrogation methods were illegal or that they constituted torture.
7. The Supreme Court in its decision did not find that the alleged interrogation methods constituted torture in violation of the Convention. In its unanimous decision, the Court held that the General Security Service was not authorized to use certain investigation methods (as set out in the Landau Commission report) that involved the use of moderate physical pressure, holding that such methods violate Israeli law.
8. The Government of Israel, in accordance with the Commissions of Inquiry Law, had appointed the Landau Commission. The Chairman of the Commission was Justice Moshe Landau, former President of Israel’s Supreme Court. In the course of its inquiry, the Commission considered the legal status of the General Security Service, as well as the legality of the use of moderate means of physical pressure by investigators. Following the conclusion of its inquiry, the Commission issued a report in 1987. In its report, the Commission determined that in dealing with dangerous terrorists who pose a grave threat to the State and its inhabitants, the use of moderate physical pressure might be unavoidable if it is necessary to obtain information for the protection of human life. 2/
9. The Supreme Court had three issues to resolve in this case: first, the petitioners had challenged the legal authority of General Security Service investigators to conduct interrogations of suspects; secondly, if they were found to have a general authority to conduct interrogations, were they empowered to use the physical means as set out in the complaints of the petitioners; and finally, if the use of such physical methods were necessary to save human lives, could this justify endowing General Security Service investigators with the authority to use such methods in those situations.
10. As to the first issue - whether the General Security Service investigators are empowered by law to conduct investigations - the Supreme Court found that there was no specific statutory provision authorizing the General Security Service investigators to conduct investigations. 3/ The Court held, however, that General Security Service investigators did, in fact, have the legal authority to conduct investigations. The Court held that the statutory authority for that was to be found in section 2 (1) of the Criminal Procedure (Evidence) Ordinance. That law grants general legal authority to police officers to conduct criminal investigations. In addition, the Minister of Justice and the Minister for Public Security are authorized to empower other officials to conduct criminal investigations. The Minister of Justice, in accordance with this provision, authorized investigators of the General Security Service to conduct investigations of terrorist activities. The Court held that in view of the authorization by the Minister of Justice pursuant to this provision, investigators of the General Security Service had the same authority to conduct investigations of terrorist activities as was granted by the Ordinance to police officers to conduct investigations of criminal offences.
11. Consistent with the holding that General Security Service investigators derive their authority to investigate terrorist activities from the same statutory authorization granted to police officers, the Court determined that limitations imposed on police officers while conducting investigations of crimes also apply to General Security Service investigators. Aharon Barak, President of the Supreme Court, writing for the Court, set out this principle as follows:
ii. Concerning the use of having a suspect crouch on the tips of his toes for long periods of time (the “frog crouch”), the Court held that “this is a prohibited investigation method. It does not serve any purpose inherent to the investigation. It is degrading and infringes upon an individual’s human dignity.” 8/
iii. The Court held that painful handcuffing of a suspect is prohibited. 9/
iv. The Court held that seating a suspect in the “Shabach” position is likewise prohibited. The court stated that such methods “do not fall within the sphere of a ‘fair’ interrogation. They are not reasonable. They impinge upon the suspect’s dignity, his bodily integrity and his basic rights beyond what is necessary. They are not deemed as included within the general power to conduct interrogations.” 10/
v. The Court held that covering a suspect’s head with an opaque sack during interrogation is prohibited, holding that such method is not inherent to an interrogation and that it is forbidden, stating that this “is not part of a fair interrogation. It harms the suspect and his (human) image. It degrades him … All of these things are not included in the general authority to investigate. The covering of the head in the circumstances described … is prohibited.”11/
vi. The Court next considered the playing of loud music while in the “ Shabach” position and held that this method is prohibited. 12/
vii. The Court further held that the use of such methods in combination is prohibited. The Court held that this is an unacceptable method and that the “duty to safeguard the detainee’s dignity includes his right not to be degraded and not to be submitted to sub-human conditions in the course of his detention, of the sort likely to harm his health and potentially harm his dignity”. 13/
viii. Finally, the Court considered the use of deprivation of sleep during the course of an investigation. The Court noted that interrogations may be lengthy and as a “side effect” may cause a person not to be able to sleep during the interrogation. However, the situation changes if “sleep deprivation shifts from being a ‘side effect’ inherent to the interrogation, to [being] an end in itself. If the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or ‘breaking’ him - it shall not fall within the scope of a fair and reasonable investigation. Such means harm the rights and dignity of the suspect in a manner surpassing that which is required.”14/
A person will not bear criminal liability for committing an act that was immediately necessary for the purpose of saving the life, liberty, body or property, either of himself or his fellow person, from a real danger of serious harm, due to the conditions prevalent at the time the act was committed, there being no alternative means for avoiding the harm.”
18. The Court in its decision held that while there were differences of opinion on this issue, it was ready to assume that if an investigator used physical means in the course of an investigation, under the circumstances set out in the statute, and if he were indicted for having used such means, this defence might be available to him. However, the Court held that the “necessity” defence in the case of a criminal trial of the investigator could not serve as a statutory basis for authorizing, in advance, the use of such means in the course of an investigation. The fact that a certain action did not constitute a criminal offence did not authorize an investigator to use that method in the course of an investigation. The Court held:
20. The importance, significance and difficulty of the Supreme Court decision must be viewed against the background that Israel’s citizens and residents are under constant threat of murderous terrorist acts by persons who have no respect for the rule of law. The justices pointed this out in their decision. After recalling the difficult security situation facing Israel, as set out in paragraph 1 of the judgement, the justices acknowledged that this decision would not make it easier for the security forces to deal with this situation. However, the Court noted:
Developments in the aftermath of the Supreme Court decision
The effect within the ISA
21. The Supreme Court decision, summarized above, had an immediate and profound effect on the conduct of all investigations by the Israel Security Agency (ISA).
22. The Israel Security Agency has always conducted investigations in accordance with the directives pertaining to such investigations. On the day that the Supreme Court decision was announced, 6 September 1999, the authorities of the ISA issued a directive to all personnel, including all investigators, directing that the decision of the Court should be strictly adhered to in all investigations conducted by the ISA.
23. While the present period of terrorism and terrorist activities against Israeli citizens and residents is a most difficult period, the investigators of the ISA are required to strictly adhere to the principles set out in the Supreme Court decision. If any investigator is found to have used physical pressure against a suspect during an investigation he will be disciplined, and where necessary will be dismissed from the Agency.
24. The principles set out in the Supreme Court decision, and the rules that now apply within the ISA as a result of that decision, are included in required courses, educational seminars and training programmes for all levels of ISA personnel.
Complaints concerning alleged misconduct by police personnel or by
investigators of the Israel Security Agency
25. Persons who are detained by the Israel Police or by the Israel Security Agency for purposes of investigation are entitled to file complaints concerning any alleged mistreatment during such investigations. All such complaints are thoroughly investigated. The procedure followed in the investigation of such complaints will depend on whether the complaint involves a disciplinary action or a criminal offence.
26. If such investigation reveals a suspicion that a criminal offence may have been committed, the complaint is investigated by a special department within the Ministry of Justice - the Department for the Investigation of Police Misconduct (DIPM), which is directly responsible to the State Attorney. Any use of actual physical violence against a detainee is always treated and investigated as a criminal offence. During such investigation, the staff of the DIPM takes evidence from the complainant, from other witnesses and from the suspect. If the investigation reveals evidence of a criminal offence, the case is transferred to the office of the District Attorney in the area where the offence occurred for a final decision on whether to file an indictment. The DIPM may also decide that the police officer or the ISA investigator should be the subject of disciplinary action, in lieu of, or in addition to, the criminal proceedings.
27. If the case involves disciplinary action to be taken against police personnel, the file in the complaint will be transferred for investigation and action by the Disciplinary Department of the Israel Police at the National Police Headquarters.
28. If the case involves disciplinary action to be taken against an investigator of the Israel Security Agency, an attorney in charge of the unit for this purpose in the office of the State Attorney at the Ministry of Justice conducts the investigation concerning the complaint. The attorney responsible for this unit states that since the Supreme Court decision in September 1999, it has been the strict policy of the Israel Security Agency that the ISA personnel may not use during the course of an investigation any of the interrogation methods which the Court held to be illegal. Indeed, since that decision, this unit has not received complaints from detainees alleging the use of such interrogation methods.
29. In addition, the Israel Security Agency has taken steps, with the assistance of the attorney in charge of this unit at the Ministry of Justice, to ensure that major improvements have been made in the living conditions of security prisoners and detainees held in detention in Israel’s prisons.
30. One case currently being investigated by the DIPM may be of interest. It may be recalled that in October 2000, two Israeli reserve soldiers, made a wrong turn while driving in their car and mistakenly entered territory under the control of the Palestinian Authority. They were detained by Palestinian police at a checkpoint. The Israeli reserve soldiers were taken to a police station in the Palestinian town of Ramallah. There an unruly crowd, including Palestinian police, took part in a cruel and savage lynching of the two reserve soldiers and brutally murdered them. The bodies of the two men were thrown out to the crowd waiting outside, which mutilated their bodies. All of this was seen on live television worldwide. The Israeli security forces succeeded in arresting some of those responsible for these brutal acts of murder. One of those who were arrested complained of physical mistreatment during his interrogation at a Jerusalem police station. The State of Israel maintains that the basic human rights of all persons under its jurisdiction must never be infringed, regardless of the crimes the person or persons are suspected of having committed. The above complaint is currently being thoroughly investigated by the DIPM and, if shown to be true, disciplinary or criminal actions will be taken against the police personnel responsible.
Petitions to Israel’s High Court of Justice
31. Petitions by detainees complaining of mistreatment during ISA investigations may be heard by Israel’s Supreme Court, sitting as the High Court of Justice. A detainee, his family, or any person or group that claims an interest in legal or humanitarian issues, may file a petition with the High Court of Justice to seek an injunction to forbid the Israel Security Agency from using improper force or improper physical pressure during investigation. A number of such petitions have, in fact, been filed with and been heard by the High Court of Justice in the past.
32. Since the Supreme Court decision in September 1999 (reported above), two petitions have been filed with the High Court of Justice complaining of physical mistreatment during investigation by the Israel Security Agency. After these complaints were investigated by the authorities and found to be groundless, the petitioners withdrew their applications to the Court.
33. Acts of torture are designated as criminal offences under Israel’s penal law. This law strictly forbids all forms of torture or other mistreatment.
34. Section 277 of Israel’s Penal Law of 1977 specifically relates to the prohibition of acts of torture or other mistreatment by public servants. This section provides as follows:
A public servant who does one of the following is liable to imprisonment for three years:
(1) uses or directs the use of force or violence against a person for the purpose of extorting from him or from anyone in whom he is interested a confession or information relating to an offence;
(2) threatens any person, or directs any person to be threatened, with injury to his person or property or to the person or property of anyone in whom he is interested for the purpose of extorting from him a confession of an offence or any information relating to an offence.”
36. Section 427 provides:
(a) A person who unlawfully uses force to induce a person to do some act or to refrain from doing an act which he is permitted to do is liable to imprisonment for seven years or, if the use of force leads to the doing or omission of the act, nine years ...”
(a) A person who, in writing or by word of mouth, threatens a person with unlawful injury to his or another person’s body, freedom, property, reputation or livelihood unless he does some act or refrains from doing an act which he is permitted to do is liable to imprisonment for three years or, if the act is done or omitted because of or at the time of the threat, nine years …”
39. In addition to the prohibition of torture as set out in Israel’s Penal Law, the prohibition against torture and other cruel, inhuman or degrading treatment or punishment is anchored in Israel’s Basic Law. This is set out in the Basic Law: Human Dignity and Liberty, which was adopted by the Knesset in 1992, after Israel ratified the Convention against Torture. A translation of this Basic Law into English is provided in attachment B.
Legislation concerning Israel’s Security Agency
40. Following a comprehensive examination of the significance of the Supreme Court judgement in the case of Public Committee against Torture in Israel v. the State of Israel (HCJ 5100/94), and notwithstanding the serious limitations that the Court’s decision places on the ability and effectiveness of the security service to prevent ongoing terrorist attacks, the Israeli Government has decided not to initiate legislation that would authorize the use of physical means in investigations conducted by the ISA. The Government decided, instead, to focus on the improvement and strengthening of the ISA’s general capabilities by an increase in manpower, improved technological equipment and similar measures. A special working group, headed by the Minister of Justice and the Deputy Minister of Defense, was appointed to seek effective means to implement this governmental decision.
41. A private member’s bill was submitted to the Knesset by a group of Knesset members that would authorize the use of limited physical means of investigation in certain specific circumstances. The ministerial committee of the Government, headed by the Minister of Justice, opposed this proposed bill. This private member’s bill has yet to be brought to a preliminary hearing before the Knesset. The Prime Minister of Israel publicly rejected the provisions of this private bill during a plenum session of the Knesset.
42. As reported in Israel’s previous periodic report, the Government proposed a new law to the Knesset in February 1998 that would govern the structure and activities of the Israel Security Agency. This proposed new legislation, among other provisions, would provide new, additional mechanisms for the review of the activities of the ISA. The new proposed mechanisms would be in addition to current mechanisms for review, which include the possibility of petitions to the court system and investigations by the State Comptroller. This proposed legislation contains no provisions concerning the investigative methods which investigators of the ISA are permitted to use. This proposed law has passed its first reading in the Knesset and was transferred for further consideration to a special joint Knesset committee consisting of the Knesset Constitution, Law and Justice Committee and the Knesset Security and Foreign Affairs Committee.
43. In accordance with the proposed law, the ISA will be subject to the authority of the Government. The Government will appoint the director of the ISA, on the recommendation of the Prime Minister. The proposed law provides that a special ministerial committee of the Government will be established which will be responsible for ministerial scrutiny and oversight of the ISA. The law also provides for parliamentary oversight of the activities of the ISA, which will be provided by a special committee of the Knesset. The proposed law further sets out the functions and powers of the ISA. The objectives of the ISA will include protecting the security of the State and protection for State authorities and State institutions from terrorism, espionage and other similar threats. The ISA would be given authority and power under the law to conduct investigations. The director of the ISA will provide periodic reports to the ministerial committee and to the Knesset committee.
44. This proposed law is currently pending before the aforementioned special joint committee of the Knesset.
II. ADDITIONAL INFORMATION REQUESTED BY THE COMMITTEE
48. Israel’s Supreme Court, in a judgement handed down in September 1999, ( Public Committee Against Torture in Israel v. the State of Israel ), ruled that such interrogation methods are illegal under Israeli law, as they infringe on the dignity of the person being investigated. The Court, in its judgement, did not reject the arguments of the State that such interrogation methods did not constitute torture or cruel, inhuman or degrading treatment and do not violate the Convention. The judgement of the Supreme Court is summarized in part I of this third periodic report. An English translation of that decision is contained in attachment A to this report.
Paragraph 240 (b) “The provisions of the Convention should be incorporated by legislation into Israeli law, particularly the definition of torture contained in article 1 of the Convention.”
49. As stated in part I of this report, sections 277, 427 and 428 of Israel’s Penal Law of 1977 (the texts of these sections are set out in part I of this report) strictly forbid all forms of torture or maltreatment. Thus all acts of torture, as defined in article 1 of the Convention, are criminal acts under Israel’s Penal Law. In addition, all forms of torture or other cruel, inhuman or degrading treatment or punishment are prohibited by Israel’s Basic Law: Human Dignity and Liberty, which is set out in full as attachment B to this periodic report. This Basic Law has constitutional status within Israel’s legislative framework. Section 2 of the Basic Law prohibits any violation of the life, body or dignity of any person. Section 4 guarantees to all persons the right to protection of their life, body and dignity. These provisions of the Basic Law constitute a prohibition of cruel, inhuman or degrading treatment or punishment, including torture. The Israeli Knesset enacted this Basic Law in 1992, after Israel ratified the Convention against Torture.
50. Following the unanimous decision of Israel’s Supreme Court, in the case of Public Committee against Torture in Israel v. the State of Israel (as summarized in part I), it is clear that all provisions of the Convention are, in fact, a part of Israeli law. It is clear that any action that would constitute a violation of the Convention is a violation of the law of Israel and is prohibited under the law in Israel.
Paragraph 240 (c) “Israel should consider withdrawing its reservations to article 20 and declaring in favour of articles 21 and 22.”
51. Upon ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the State of Israel declared that in accordance with article 28 of the Convention, it did not recognize the competence of the Committee provided in article 20. Furthermore, the State of Israel did not declare in favour of articles 21 and 22 of the Convention, which recognize the competence of the Committee to receive and consider complaints from other States parties or from individuals, respectively.
52. Having reviewed the above declaration in light of the Committee’s recommendations, Israel maintains that it is unlikely that the circumstances in the foreseeable future will permit it to change its position. However, Israel will continue to review its position in this regard.