STATE OF ISRAEL
MINISTRY OF JUSTICE
TAMAR GAULAN, Adv.
Director, Human Rights and International Relations Dept.
Israeli law strictly forbids all forms of torture or maltreatment. The Israeli Penal Code (1977) prohibits the use of force or violence against a person for the purpose of extorting from him a confession to an offense or information relating to an offense. Israel signed and ratified the U.N. Convention Against Torture and Cruel, Inhuman or Humiliating Treatment.
The State of Israel maintains that the basic human rights of all persons under its jurisdiction must never be violated, regardless of the crimes that the individual may have committed. Israel recognizes, however, its responsibility to protect the lives of both Jews and Arabs from harm at the hands of Palestinian terrorist organizations active throughout the world. To prevent terrorism effectively while ensuring that the basic human rights of even the most dangerous of criminals are protected, the Israeli authorities have adopted strict rules for the handling of interrogations. These guidelines are designed to enable investigators to obtain crucial information on terrorist activities or organizations from suspects who, for obvious reasons, would not volunteer information on their activities, while ensuring that the suspects are not maltreated.
The Landau Commission
The basic guidelines on interrogation were set by the Landau Commission of Inquiry. The Commission, headed by former Supreme Court President, Justice Moshe Landau, was appointed following a decision of the Israeli government in 1987 to examine the General Security Service’s (GSS) methods of interrogation of terrorist suspects. In order to compile its recommendations, the Landau Commission examined international human rights law standards, existing Israeli legislation prohibiting torture and maltreatment, and guidelines of other democracies confronted with the threat of terrorism.
The Landau Commission envisioned its task as defining "with as much precision as possible, the boundaries of what is permitted to the interrogator and mainly what is prohibited to him." The Commission determined that in dealing with dangerous terrorists who represent a grave threat to the State of Israel and its citizens, the use of a moderate degree of pressure, including physical pressure, in order to obtain crucial information, is unavoidable under certain circumstances. Such circumstances include situations in which information which an interrogator can obtain from the suspect can prevent imminent murder, or where the suspect possesses vital information on a terrorist organization which could not be uncovered by any other source (e.g., locations of arms or explosive caches or planned acts of terrorism).
The Landau Commission recognized the danger posed to the democratic values of the State of Israel should its agents abuse their power by using unnecessary or unduly harsh forms of pressure. As a result, the Commission recommended that psychological forms of pressure be used predominantly and that only "moderate physical pressure" (not unknown in other democratic countries) be sanctioned in limited cases where the degree of anticipated danger is considerable.
It should be noted that the use of such moderate pressure is in accordance with international law. For example, when asked to examine certain methods of interrogation used by Northern Ireland police against IRA terrorists, the European Human Rights Court ruled that "[i]ll-treatment must reach a certain severe level in order to be included in the ban [of torture and cruel, inhuman or degrading punishment] contained in Article 3 [of the European Convention of Human Rights]." In its ruling, that Court disagreed with the view of the Commission that the above mentioned methods could be construed as torture, though it ruled that their application in combination amounted to inhuman and degrading treatment. The question whether each of these measures separately would amount to inhuman and degrading treatment was therefore left open by the Court.
The Landau Commission was aware that the issue of moderate pressure during interrogation is both a serious and sensitive one. The guidelines regarding interrogation provide for limited forms of pressure under very specific circumstances, to be determined on a case by case basis. They by no means authorize indiscriminate use of force. Rather, specific circumstances have been identified and interrogation practices have been strictly defined in a manner that, in the opinion of the Landau Commission, "if these boundaries are maintained exactly in letter and in spirit, the effectiveness of the interrogation will be assured, while at the same time it will be far from the use of physical or mental torture, maltreatment of the person being interrogated, or the degradation of his human dignity. "
To ensure that disproportionate pressure is not used, the Landau Commission identified several measures, which have been adopted and are now in force, namely:
1. Disproportionate exertion of pressure on the suspect is not permissible pressure must never reach the level of physical torture or maltreatment of the suspect, or grievous harm to his honor which deprives him of his human dignity.
2. The use of less serious measures must be weighed against the degree of anticipated danger, according to the information in the possession of the interrogator.
3. The physical and psychological means of pressure permitted for use by an interrogator must be defined and limited in advance, by issuing binding directives.
4. There must be strict supervision of the implementation in practice of the directives given to GSS interrogators.
5. The interrogators’ supervisors must react firmly and without hesitation to every deviation from the permissible, imposing disciplinary punishment, and in serious cases, causing criminal proceedings to be instituted against the offending interrogator.
Once these measures were set down, the Landau Commission went on, in a second section of its report, to precisely detail the exact forms of pressure permissible to the GSS interrogators. This section has been kept secret out of concern that, should the narrow restrictions binding the interrogators be known to the suspects undergoing questioning, the interrogation would be less effective. Palestinian terrorist organizations commonly instruct their members, and have even printed a manual, on techniques of withstanding GSS questioning without disclosing any information. It stands to reason that publishing GSS guidelines would not only enable the organizations to prepare their members better for questioning, but would reassure the suspect as to his ability to undergo interrogation methods without exposing vital information, thus depriving the GSS of the psychological tool of uncertainty.
Since the interrogation guidelines are secret, the Israeli government recognized the importance of establishing safeguards and a system of review of interrogation practices in order to insure that GSS investigators do not violate the guidelines. As a result, the GSS Comptroller was instructed to check every claim of torture or maltreatment during interrogation. From 1987 until the beginning of 1994, the Comptroller carried out this responsibility, initiating disciplinary or legal action against interrogators in cases where they have been found to have deviated from the legal guidelines. Early in 1994, in accordance with the recommendations of the Landau Commission, responsibility for investigation of claims of maltreatment was transferred to the Division for the Investigation of Police Misconduct in the Ministry of Justice under the direct supervision of the State Attorney.
The Landau Commission also recommended that there be external supervision of GSS activities. Since the Landau Commission issued its recommendations, the State Comptroller’s Office has launched an examination of the GSS investigator’s unit. Upon the completion of its inquiry, the State Comptroller’s findings will be submitted to a special subcommittee of the Knesset (Israeli Parliament) State Comptroller Committee. A further review procedure exists whereby the conclusions of the special ministerial committee, detailed below, as well as the annual reports of the investigators’ unit are brought to the attention of the Sub-committee for Services of the Knesset Foreign Affairs and Defence Committee.
In addition, an agreement between the State of Israel and the International Committee of the Red Cross (ICRC) provides for the monitoring of conditions of detention. Delegates from the ICRC are permitted to meet with detainees in private within 14 days of the arrest. ICRC doctors may examine detainees who complain of improper treatment. All complaints made by the ICRC regarding treatment of prisoners are fully investigated by the relevant Israeli authorities and the findings are made known to the ICRC.
In May 1991, a special ad-hoc committee composed of members of the GSS and the Justice Ministry was appointed to review complaints against the conduct of GSS investigators during interrogation. The committee identified a number of cases in which investigators did not act in accordance with the guidelines for treatment of detainees. As a result of the Committee’s findings, action has been taken against GSS investigators involved in these cases.
As recommended by the Landau Commission, a special ministerial committee headed by the Prime Minister was established in 1988 under the previous government to review periodically the interrogation guidelines themselves. This committee held several sessions but its work was cut short by the national elections which were held in June, 1992. Following the establishment of the new government in July, 1992 a new ministerial sub-committee composed of the Ministers of Justice and Police was appointed in order to review the guidelines. On April 22, 1993, the Ministerial sub-committee detrmined that certain changes should be made in the General Security Service guidelines. On the basis of the sub-committee’s recommendations, new guidelines were issued to General Security Service investigators. The new guidelines clearly stipulate that the need and justification for the use of limited pressure by investigators must be established in every case, according to its own special circumstances. The updated guidelines also point out that the use of exceptional methods was intended only for situations where vital information is being concealed and not in ordre to humiliate, harm or mistreat those under investigation. In addition, in the new guidelines, it is expressly stated that it is prohibited to deny a person under investigation food or drink, to refuse him permission to use a bathroom or to subject him to extreme temperatures.
In 1991, a petition was submitted to the Supreme Court of Israel sitting as the High Court of Justice by a detainee named Murad Adnan Salkhat and a private group named the Israel Public Committee Against Torture, challenging the legality of the guidelines and demanding that they be made public. The Court dismissed the petition and confirmed the necessity for secrecy.
The State of Israel prides itself on having an open society with a democratic legal system which is subject to public scrutiny and which respects human values. As a result, any allegations of maltreatment are taken seriously and are investigated on a case by case basis. However, it should be noted that individuals arrested, tried or convicted have both personal and political motives for fabricating claims of maltreatment during interrogation. Personal motives include the desire to have a confession ruled inadmissible at trial, to present oneself as a "martyr", or to escape retribution from Palestinian terrorist cells which have often assassinated or tortured individuals who have given information to the Israeli authorities. Political motives include the desire to spread anti-Israel disinformation in the form of unfounded human rights complaints, in order to undermine Israel’s human rights image or discredit the Ggeneral Security Service.
It is the unfortunate reality that, during times of political unrest and violence, restrictions must be placed on individuals who threaten the welfare of the State and its citizens. This paper has been aimed at demonstrating that, despite the harsh reality of continuing terrorism faced by the State of Israel, we are doing everything in our power to uphold the rights of all persons under our jurisdiction while ensuring the safety of innocent individuals.