COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION
Initial reports of States Parties due in 1992
[25 January 1994]
I. GENERAL INFORMATION
1. The State of Israel is a parliamentary democracy in which the Knesset (the legislature) enacts statutes which are interpreted and applied by an independent judiciary and enforced by the executive. Acts of torture, etc. as defined by the Convention are designated as criminal offences by penal legislation (see below) and perpetrators of such offences are tried and punished by the courts.
2. In addition to the criminal law, the law of civil wrongs enables a victim of torture to seek civil redress in damages for torts such as assault or false imprisonment. In appropriate cases, such civil action is available against the State or public officials.
3. Israel is a party to the International Covenant on Civil and Political Rights, provisions of which may be considered as of wider application than those of the Convention against Torture.
4. Under the Israeli constitutional system customary international law is a part of its legal system; however, international conventions are not part of the law of the land, nor can they be directly invoked before the courts. The
provisions of international conventions have to be explicitly incorporated into national legislation. For details of such legislation applying the provisions of the Convention, see below.
5. As already stated, the ordinary courts have jurisdiction to try offences against the penal provisions prohibiting torture and similar acts. Moreover, those courts can award compensation in civil actions for damages. In addition, public officials who violate the criminal law or administrative directives by which they are bound (see below) are subject to disciplinary jurisdiction and may incur sanctions imposed by disciplinary bodies. This includes members of the General Security Services (GSS), as well as members of the Israel Defence Forces who are subject to court martial in respect of violation of military law involving torture or similar acts.
II. IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE CONVENTION
6. While Israeli legislation does not specifically define torture, statutory provisions clearly cover all acts of torture as found in the definition in article 1 of the Convention. (See remarks on art.4, below).
7. A number of sections of the Penal Law, 5737-1977 provide criminal sanctions against acts of torture (see below). Reference should also be made to the Basic Law: Human Dignity and Freedom, enacted recently. Moreover, strict guidelines relating to methods of interrogation of security suspects are also directed to prevention or torture (see below).
8. Another relevant statutory provision is section 12 of the Evidence Ordinance [New Version], 5731-1971 which invalidated any confession made by an accused person not made freely and voluntarily.
9. Regarding article 2(3) of the Convention, we refer to section 24(1)(a) of the Penal Law, 5737-1977 which allows the defence of acting under superior orders only where the orders are lawful. Where an order is manifestly illegal, as would be the case with an order to commit acts of torture, acting under such order would clearly not constitute a defence for a person accused of committing such acts. On this, we would refer to the decision of the Supreme Court, sitting as High Court of Justice (27.12.89) to make absolute decree against the chief Military Advocate, the chief of the General Staff and others, requiring them to commit an army officer for trial before a court martial for committing acts of torture against residents of certain Arab villages in Samaria (administered territories) during the course of putting down the Arab uprising (intifada) at its inception in January 1988. According to the findings of an investigation instituted at the request of the International Red Cross, the residents had been bound and severely beaten by orders of the said army officer. The court characterized such acts as repugnant to civilized standards of behaviour and rejected the plea that they were carried out as a result of the "uncertainty" that prevailed as to orders for quelling the intifada. (High Court case No. 425/89 Piskei Din (Supreme Court Judgements), vol. 43, Part IV, p. 718).
10. Under the Extradition Law, 5714-1954, a prior condition for any act of extradition is the existence of an extradition convention between Israel and the State to which it is proposed to extradite the offender.
11. Where a request for extradition is submitted by a foreign State, the Minister of Justice may direct that the person concerned be brought before a District Court to determine whether he is subject to extradition, and in pursuance of such direction, the Attorney General or his representative submits to the court a petition to declare the person concerned subject to extradition. If the statutory conditions are fulfilled, the court will make such a declaration, and the extradition will then eventually be carried out. A person declared subject to extradition does have a right of appeal to the Supreme Court sitting as a Court of Criminal Appeal within 30 days of the decision of the District Court. However, the final decision as to his extradition is, under the Extradition Law, at the discretion of the Minister of Justice.
12. The following are the relevant provisions of the Penal Law, 5737-1977 providing criminal sanctions for acts of torture:
"CHAPTER NINE: Offences relating to Public Authority and the Administration of Justice
Article Four: Offences Committed in or Against the Public Service
277. Oppression by public servant. 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 of an offence or information relating to an offence;