Question of Palestine home
10 January 1997
COMMISSION ON HUMAN RIGHTS
Item 8 (a) of the provisional agenda
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED
TO ANY FORM OF DETENTION OR IMPRISONMENT,
IN PARTICULAR: TORTURE AND OTHER CRUEL,
INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted
pursuant to Commission on Human Rights resolution 1995/37 B
III. INFORMATION REVIEWED BY THE SPECIAL RAPPORTEUR
WITH RESPECT TO VARIOUS COUNTRIES
115. By letter dated 11 November 1996, the Government replied to information the Special Rapporteur had transmitted on 14 July 1995 concerning the practice of torture in the country (see E/CN.4/1996/35/
, paras. 384-386). The Government stated that Israel's law forbade all forms of torture or maltreatment and conformed to the basic provisions of the Convention against Torture, to which it is a party. Every allegation of maltreatment was thoroughly investigated by the Department for Investigation of the Police at the Ministry of Justice, which is under the direct supervision of the State Attorney. Disciplinary or criminal measures were instigated against those responsible. In addition, any person could petition directly the Supreme Court of Israel sitting as a High Court of Justice, and the petition would be heard within 48 hours of submission.
116. Regarding access to judges, while it was true that persons suspected of State security offences could be held for up to 15 days without notification of arrest, this seldom-used procedure could be brought into effect only at the discretion of the judge when the Minister of Defence affirmed that the security of the State required temporary secrecy. While persons in the Administered Territories could be held for up to 11 days in serious cases, arrested persons could file a petition for cancellation of the arrest order and release from detention and the military courts would hear their petitions within a few days. Habeas corpus petitions could also be submitted to the Supreme Court. Israel had no policy or system of incommunicado detention, but sometimes a delay in seeing family and lawyers could occur as a result of security measures that must be taken. In any event a person must be allowed to meet with a lawyer by the fifteenth day and this requirement would be shortened to 10 days under a new Criminal Procedure Law that would enter into force in May 1997. In extreme cases, the President of the District Court could deny access to lawyers for up to 21 days. Any denial of access could be appealed to both the District Court and the Supreme Court.
117. The Government asserted that personal and political motives might be behind the fabricated or exaggerated allegations of torture made by individuals who had been arrested. The motive of making these allegations would be to embarrass the Government of Israel by spreading anti-Israel disinformation in the form of bogus human rights complaints or to justify their own actions vis-à-vis their fellow Arabs.
118. The Special Rapporteur transmitted to the Government information on 12 individual cases. He also made 7 urgent appeals on behalf of 24 persons. The Government provided replies to two of the appeals, one of which is summarized in the following paragraph. The Government also replied to seven cases that had been transmitted in 1995.
119. The Government replied to the urgent appeal transmitted by the Special Rapporteur on 15 November 1996 on behalf of Mohammad Abdel Aziz Hamdan, whose appeal to the Supreme Court that “physical pressure” not be used against him during his custodial interrogation was rejected, by transmitting a copy of the 14 November 1996 Supreme Court decision on the case. The Government also provided a background paper prepared by the Ministry of Justice on “Israel's Interrogation Practices and Policies”. In the paper, the Government affirms that Israeli law strictly prohibits all forms of torture or maltreatment. To prevent terrorism effectively while ensuring that basic human rights are protected, the authorities had adopted strict rules for handling interrogations to obtain crucial information on terrorist activities or organizations, while ensuring that suspects were not maltreated. The Landau Commission, in examining the issue in 1987, had determined that in dealing with terrorists representing a great threat to the State of Israel and its citizens, the use of a moderate degree of pressure, including physical pressure, to obtain information, such as that which would prevent imminent murder or would provide vital information on a terrorist organization, was unavoidable. The use of moderate pressure was permissible under international law, as evidenced by the European Court of Human Rights ruling that illtreatment would have to “reach a certain severe level in order to be included in the ban” of torture and cruel, inhuman or degrading punishment contained in the European Convention on Human Rights.
120. The Landau Commission had constrained the boundaries of permissible physical pressure to forbid disproportionate pressure or that which reached the level of physical torture or maltreatment or grievous harm to the detainee's honour which would deprive him of his human dignity, as follows. The use of less serious measures must be weighed against the degree of anticipated danger; physical and psychological means of pressure permitted for use by an interrogator must be defined and limited in advance through binding directives, the implementation of which must be strictly supervised; and those supervising the interrogators must see to it that disciplinary and, in serious cases, criminal proceedings are brought against interrogators deviating from what is permissible. The exact forms of pressure permissible to the interrogators had been kept secret so as not to limit their effectiveness. Safeguards had been put in place, including the mandatory investigation of claims of mistreatment and external supervision of the interrogation process by the State comptrollers and a special subcommittee of the Israeli Parliament (Knesset). The ICRC was able to meet with detainees in private within 14 days of arrest. A special ministerial committee also undertook periodic reviews of the guidelines. Pursuant to such a review, new guidelines issued in 1993 established that the need and justification for physical pressure must be established in every individual case.
121. The following forms of pressure during interrogation appear so consistently (and have not been denied in judicial proceedings) that the Special Rapporteur assumes them to be sanctioned under the approved but secret interrogation practices: sitting in a very low chair or standing arced against a wall (possibly in alternation with each other); hands and/or legs tightly manacled; subjection to loud noise; sleep deprivation; hooding; being kept in cold air; violent shaking (an "exceptional" measure, used against 8,000 persons according to the late Prime Minister Rabin in 1995). Each of these measures on its own may not provoke severe pain or suffering. Together and they are frequently used in combination they may be expected to induce precisely such pain or suffering, especially if applied on a protracted basis of, say, several hours. In fact, they are sometimes apparently applied for days or even weeks on end. Under those circumstances, they can only be described as torture, which is not surprising given their advanced purpose, namely, to elicit information, implicitly by breaking the will of the detainees to resist yielding up the desired information. The Special Rapporteur concurs with the view of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, reaffirming the position of the Committee against Torture, that "an immediate end should be put to current interrogation practices and all victims of such practices should be granted access to appropriate rehabilitation and compensation measures" and that "interrogation procedures be published in full so that they are both transparent and seen to be consistent with the standards of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" (
, para. 36). The Special Rapporteur appreciates the responses of the Government and is aware of the grave challenges posed by politically motivated terrorist activities, but, as the Government itself acknowledges, these cannot justify torture or cruel, inhuman or degrading treatment.
Syrian Arab Republic
190. The Special Rapporteur transmitted one urgent appeal on behalf of two persons, to which the Government provided a reply.
Other communications: information transmitted to the Palestinian Authority
216. The Special Rapporteur made 5 urgent appeals on behalf of 11 persons.