COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION
Third periodic reports due in 2000
[15 March 2001]
* 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
1 – 3
INFORMATION ON NEW MEASURES AND
DEVELOPMENTS RELATING TO THE
IMPLEMENTATION OF THE CONVENTION
4 – 44
ADDITIONAL INFORMATION REQUESTED
BY THE COMMITTEE
COMPLIANCE WITH THE COMMITTEE’S
CONCLUSIONS AND RECOMMENDATIONS
46 – 54
Judgement of the Supreme Court: Public Committee
against Torture in Israel v. the State of Israel
Basic Law: human dignity and liberty
* Available for consultation in the Secretariat’s files.
1. This report is submitted pursuant to article 19 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
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.
I. INFORMATION ON NEW MEASURES AND NEW DEVELOPMENTS
RELATING TO THE IMPLEMENTATION OF THE CONVENTION
4. The most significant and important new development since the submission of Israel’s second Periodic report to the Committee Against Torture was the decision of Israel’s Supreme Court in September 1999 concerning investigation methods used by the Israel Security Agency (ISA). 1/ That was the decision of the Israel Supreme Court, sitting as the High Court of Justice, in September 1999, in the case of Public Committee Against Torture in Israel v. the State of Israel (HCJ 5100/94). A translation of that decision into English is attached to this periodic report as attachment A.
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:
12. After concluding, as set out above, that General Security Service investigators have authority to conduct investigations, the Supreme Court next examined the issue of whether that authority included the use of physical means during the course of an interrogation. In discussing the issue of the means used during an interrogation, the Court noted that, in a democratic regime, there was a clash between two values or interests:
13. The Supreme Court then set out certain general principles concerning the “ law of interrogation”. The Court determined that:
14. After setting out the general principles concerning the means of conducting a reasonable investigation, as set out above, the Court next examined each of the specific interrogation means, which the petitioners in the case had challenged. In a decisive manner, which left no room for doubt, the Court determined as follows:
15. The Supreme Court next considered the third issue before the Court in these applications – whether the General Security Services may employ physical means in the course of interrogations where this is necessary to save human lives – the “necessity” defence. The State had based its arguments on this issue on the text of section 34K of Israel’s Penal Law, which states as follows:
16. The State contended that investigators are entitled to use moderate physical pressure as a last resort in order to save human lives. The President of the Supreme Court, in the first paragraph of the judgement, described the background of constant threats to Israel’s security and its civilian population posed by terrorists and terrorist acts, stating:
17. The Court pointed out that many attacks planned by terrorists had been successfully prevented due to investigation by the authorities responsible for fighting terrorism, and that the main organization responsible for fighting terrorism in Israel was the General Security Service. The State had argued that such means of investigation were employed only when necessary to save human lives, and that the above section of the Penal Law provided that in such circumstances these methods did not constitute a criminal offence. The State contended that as such action, in such circumstances, does not constitute a crime, there is no reason to prohibit it ab initio , and that the use of such methods should not be prohibited in such circumstances. 16/
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:
19. In conclusion, the Supreme Court nullified the general directives that authorized the use during an interrogation of physical means that infringe upon a suspect’s liberty. 18/
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.
Legislative developments since the second periodic report
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:
35. Sections 427 and 428 of Israel’s Penal Law of 1977 makes it a criminal offence to unlawfully use force or threats to force a person to do some act. These sections relate to such unlawful acts by the general public, including, of course, all State employees.
36. Section 427 provides:
37. Section 428 provides:
38. The above provisions in Israel’s Penal Law effectively provide that all acts of torture, as defined in article 1 of the Convention, are criminal offences under Israeli law.
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
45. The Committee, in its concluding observations following its consideration of Israel’s second periodic report (A/53/44, paras. 232-242), did not request any additional information from the State of Israel.
III. COMPLIANCE WITH THE COMMITTEE’S CONCLUSIONS
46. The Committee, in its concluding observations on Israel’s second periodic report (A/53/44, paras. 232-242), made the following conclusions and recommendations (paras. 240-241):
47. As set out in Israel’s previous reports to the Committee, Israel asserts that the methods which had been employed in investigations by Israel’s security service (referred to as the “Landau Rules”) do not constitute torture or cruel, inhuman or degrading treatment and do not violate the provisions of the Convention.
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.
53. Israel’s Supreme Court, in its judgement in the case of Public Committee against Torture in Israel v. the State of Israel (as reported herein), held that interrogation procedures pursuant to the “Landau rules” are illegal under Israel’s law. Since September 1999, such methods are no longer used by Israel’s security service. For this reason, the publication of such rules is no longer relevant.
54. Israel wishes to report that there has recently been a drastic reduction in the number of persons held in administrative detention, and at the present there are 11 persons being held in administrative detention for security reasons. In addition, no persons are being held in administrative detention in the occupied territories. The conditions in which such persons are held in administrative detention do conform to article 16. Those held in administrative detention have the right to file petitions with the Courts in Israel to review the legality of their being held in detention, including the legality of the conditions of their detention.
1/ The former name of Israel’s security service – General Security Service – has recently been changed to Israel Security Agency (ISA).
2/ Paragraph 16 of the Supreme Court decision, p. 10 of the English translation (attachment A).
3/ Paragraph 20 of the Supreme Court decision, p. 14 of the English translation (attachment A).
4/ Paragraph 32 of the Supreme Court decision, p. 21 of the English translation (attachment A).
5/ Paragraph 22 of the Supreme Court decision, pp. 15-16 of the English translation (attachment A).
6/ Paragraph 23 of the Supreme Court decision, p. 17 of the English translation (attachment A).
7/ Paragraph 24 of the Supreme Court decision, p. 17 of the English translation (attachment A).
8/ Paragraph 25 of the Supreme Court decision, pp. 17-18 of the English translation (attachment A).
9/ Paragraph 26 of the Supreme Court decision, p. 18 of the English translation (attachment A).
10/ Paragraph 27 of the Supreme Court decision, p. 18 of the English translation (attachment A).
11/ Paragraph 28 of the Supreme Court decision, p. 19 of the English translation (attachment A).
12/ Paragraph 29 of the Supreme Court decision, pp. 19-20 of the English translation (attachment A).
13/ Paragraph 30 of the Supreme Court decision, p. 20 of the English translation (attachment A).
14/ Paragraph 31 of the Supreme Court decision, pp. 20-21 of the English translation (attachment A).
15/ Paragraph 1 of the Supreme Court decision, p. 3 of the English translation (Attachment A).
16/ Paragraph 15 of the Supreme Court decision, pp. 9-10 of the English translation, and paragraph 33, pp. 21-22 of the English translation (attachment A).
17/ Paragraph 36 of the Supreme Court decision, pp. 23-24 of the English translation (attachment A).
18/ Paragraphs 37 and 38 of the Supreme Court decision, pp. 25-26 of the English translation (attachment A).
19/ Paragraphs 39-40 of the Supreme Court decision, pp. 26-27 of the English translation (attachment A).