License to Torture - Not in Switzerland

Daniela Yanai with Stephen Langfur

Once again the Israeli High Court finds itself dealing with the parameters of government-imposed physical pain. This time, however, there may be an erosion in the virtual carte blanche that the Court has traditionally given to the General Security Services. (For background, see box.) In late December 1997, the Public Committee Against Torture in Israel (PCATI) filed petitions to the High Court on behalf of Abed Al-Rahman Ghanimat and Fuad Abed Kuran. The Committee demanded that the Court put a stop to the torture of Mr. Ghanimat and Mr. Kuran, and that it allow the latter to meet with his attorney. PCATI also demanded that the Court examine the legitimacy of a method known as shabeh, in which the prisoner is shackled, hands and feet, to a tiny chair specifically built for interrogation. Its seat slants downward, causing severe pressure on the lower back. The detainee is usually hooded with a wet, stinking sack and subjected to deafening music. He may be kept in this position for hours or days on end.

Ghanimat and Kuran have very different backgrounds. The first, twenty-eight years old, a member of a Hamas cell in the village of Tsurif, has confessed to helping plan suicide bombings that killed 11 and wounded 52. On November13, after seven months in the custody of the Palestinian Authority (PA) at Hebron, he was being transferred to a prison in Nablus together with another member of the Hamas cell named Jamal al-Hur, when the Israeli army identified the PA vehicle, stopped it, and took them (see Challenge # 47). He was brought to Shiqma Prison in Ashkelon and held incommunicado – under intensive interrogation – for 39 days. On December 23, his attorney, Allegra Pacheco, was finally allowed to meet him. He showed her his wrists, red and swollen from handcuffs. Ghanimat complained of dizziness and pains throughout his body, including his joints and back. In a sworn affidavit, he stated that he had been kept in shabeh for five-day stretches at a time. The second plaintiff, Fuad Abed Kuran, is a student at Bir Zeit University. He was arrested on December 10 and held incommunicado at the prison in Jerusalem’s Russian Compound. Kuran is the brother-in-law of Adel Awad’allah, a Hamas member – the so-called "New Engineer" – who heads Israel’s most-wanted list. In a closed-door hearing before a military court on December 29 (in which his lawyer was not allowed to be present), Kuran testified that conditions during his incarceration were "very difficult."

Under the auspices of PCATI, attorneys Allegra Pacheco and Leah Tsemel filed petitions concerning the two cases to the High Court. Its president, Chief Justice Aharon Barak, convoked a special hearing before all nine High Court judges. Such a move was unprecedented. Until now, petitions concerning the use of torture have been heard by panels of three judges only. On January 7, 1998, the hearing took place. It lasted eight hours, of which the last one and a half were spent behind closed doors, where the General Security Services (GSS or "Shin Beth") presented secret evidence.

During the public part of the session, Attorney Shai Nitzan from the State Prosecutor's Office represented the GSS. He distinguished between three situations: "frontal interrogation", "waiting" and "rest." In the past, the GSS has held that shabeh is a "waiting" measure – hence, it could not be defined as interrogation per se. Here, however, Nitzan admitted for the first time that shabeh is indeed "interrogation." Yet he still maintained that other methods – such as sleep deprivation, hooding with a wet sack, and playing loud music – are only circumstantial measures designed to maintain security during "waiting" periods. (The hooding, we are told, keeps the detainee from seeing other prisoners; the music keeps him from conversing with them.) Attorney Leah Tsemel dismissed these distinctions, claiming that all the "situations" are part and parcel of one process that aims to break the prisoner and extract a confession.

The eight-hour debate shed light on the working assumptions of the GSS, and the power they have to shape public, and High Court, opinion. Nitzan insisted on asking the Court to consider who these detainees are, before it considered whether or not they received fair treatment. He claimed that the GSS employs its harshest measures against those suspected of terrible crimes – and those with knowledge of terrible crimes that are about to take place. The interrogators adhere to very strict guidelines, he said. Rather than lump all suspects together, they plan the precise treatment each will receive according to the degree of suspicion against him. He referred to Ghanimat's case: this suspect, he said, is a man who has already confessed to a veritable laundry list of horrific crimes. Nitzan shouted at the judges that if the interrogation of hundreds of innocent people turns up "just one" terrorist, the GSS has done its job.

The PCATI attorneys pointed out, in response, that security detainees are imprisoned without charges, and they rarely get permission to meet with lawyers. Thousands have testified that the GSS uses methods like shabeh routinely against all Palestinian detainees. If Nitzan's claim were true, they said – if the GSS really did distinguish between suspected terrorists and others, meting out treatment accordingly – it would be trying and convicting people without the benefit of a court of law. Thus it would have arrogated to itself the role of judge and jury.

According to Israeli law, torture is forbidden. In 1992 the Knesset passed what is called a "basic law," entitled "The Dignity and Freedom of Man." It forbids "harm to the life, the body, or the dignity of human beings." In a commentary, Chief Justice Aharon Barak articulates this provision as follows: "Interrogation methods that turn human beings into mere sources of information, or take away their humanity, are forbidden." Additionally, the Basic Law explicitly states, "It is forbidden to infringe on rights guaranteed by the Basic Law ... unless the infringement is explicitly upheld by a different Israeli law." No different Israeli law permits the use of torture. On January 7, Nitzan invoked the Landau Commission Report (which is not law) – and not the Basic Law – as grounds for justifying the methods of the GSS. As PCATI’s lawyers pointed out in their arguments, the Landau Commission does not comprise a sufficient legal basis for violating extant Israeli regulations.

There is also international law. The UN Committee Against Torture drew conclusions about Israel in May 1997. These included the statement that "restraining in very painful conditions, hooding under painful conditions, sounding of loud music for prolonged periods ... constitute torture."

The outcome of the fight in court that day, January 7, depended on how one defined the issue. Representing the GSS, Attorney Nitzan opened by saying, "We are not in Switzerland." This little statement saved him a great deal of trouble. It means roughly the following: "Yes, torture is illegal, but let's face it, there is terrorism here, and it has to be stopped. If we do not use these methods, much more terrible things may happen." Having thus established a gray area between the ideal of law and stark reality (in other words, having reduced the status of the law against torture to that of a "mere ideal"), Nitzan was then able to twist the question: Who are these prisoners? Why is the GSS using these methods on them? PCATI’s lawyers, for their part, attempted to shift the focus back. They used the analogy of murder. All democratic states forbid murder absolutely, just as they forbid torture absolutely. There can, of course, be extenuating circumstances for murder, such as self-defense, but it is the normal course of justice first to establish who is guilty. Only then does the court consider the circumstances. So with regard to torture: It is illegal, both by international law and by Israel's law. First, then, let the court uphold an absolute prohibition against the use of torture, establishing who is guilty of the deed. Then that person may be put on trial (in a lower court), and he may attempt to defend the act by explaining the circumstances that led to it. Thus the burden of proof is on the torturer, to explain why he tortured, rather than on the tortured, to explain why he shouldn’t be tortured.

On the other hand, said the lawyers, when the High Court takes up the question – as in the instance of Abed Ghanimat – whether to allow the GSS to continue torturing him, it is as if it were stepping in, in the midst of a murder, to ask if the act may continue. No, they said, torture is no less illegal than murder. First, let the court make that clear. Then let the torturers be put on trial, where they may attempt to explain that they are not in Switzerland. Such were the main arguments. But before we proceed to the conclusion, we may well ask: If the same procedures were applied in torture cases as are applied in those of murder, would that reduce torture? It would. If the Court were really to apply the procedures that are used in cases of murder, the GSS would not dare to torture wholesale as it does today – for the simple reason that the interrogators, on a case by case basis, would not have the specific evidence to justify their methods. On January 11, the Court ruled – by a vote of five against four – to let the GSS resume the interrogation of Abed Ghanimat. As for Fuad Kuran, the GSS declared that it had stopped using physical pressure against him, and the court did not find it necessary to render a decision in his case. The Court chose not to force the GSS to allow Kuran to meet with an attorney. The judges also decided to convene again in order to discuss the use of shabeh, as well as another technique known as "violent shaking." They did not set a date for the hearing. The decision, as said, was five against four. That is unusually close in a question of torture. Unprecedented, in fact. Chief Justice Aharon Barak ruled with the minority.

Update, March 5: Diana Mardi of al-Sabar reports: Prisoners Abed al-Rahman Ghanimat and Jamal al Hur, both taken by Israel at the Nablus roadblock, began a hunger strike on February 18 in protest against the conditions in which they are being held. They are still in the interrogation block of Ashkelon (Shikma) prison. Attorney Allegra Pacheco petitioned the High Court on February 20 to transfer them to regular cells. The police filed indictments against them on February 6, and nevertheless they remain in the interrogation block. (This means isolation, cramped quarters, no fresh air, no visits, an open, stinking toilet in the cell.) When Pacheco saw, on March 2, at the military court in Lydda, she learned that they had not changed clothes in 105 days.
Daniela Yanai is Development Coordinator for the Public Committee Against Torture in Israel. Stephen Langfur serves on the editorial board of Challenge.