COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF ISRAEL
5 May 2009
The Committee against Torture this morning began its consideration of the fourth periodic report of Israel on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Aharon Leshno Yaar, Permanent Representative of Israel to the United Nations Office at Geneva, said that while recognizing that Israel had to impose restraints on its own actions in conformity with its responsibilities under international law, he wished to underscore the importance of putting things into perspective, and that understanding Israel's pressing security, political and social situation was critical for recognizing the context in which they had made advancements, as well as addressing the challenges they still faced, given their limited resources and ongoing security threats.
Shai Nitzan, Deputy State Attorney for Special Affairs with the Ministry of Justice in Jerusalem, highlighted that, over the last decade, Israel had been subject to a continuous and murderous string of terrorist attacks, which had targeted Israelis wherever they might be, utterly failing to distinguish between soldiers and civilians. The Gaza Strip was controlled by a murderous terrorist organization that acted unceasingly to strike at Israel and its inhabitants, violating every possible rule of international law in its indiscriminate violent acts. Israel often had to fight with one hand tied behind its back. Nevertheless, since 2001, major developments in the implementation of the Convention had taken place in Israel. One of the most significant was the enactment of the Israel Security Agency Law and the Supreme Court's ruling which did not authorize Agency interrogators to use physical force during interrogations. Today, there was a law that defined the Israel Security Agency's responsibilities and limitations very clearly and that stipulated several bodies to supervise it. There were also several major developments concerning prisoners and detainees rights, including the February 2007 case in which the Supreme Court held that the State had to provide a bed to every prisoner held in an Israeli prison.
Serving as Rapporteur for the report of Israel, Committee Expert Fernando Mariño Menendez, with reference to reports that the Israel Security Agency used torture in its interrogations, wondered if there was tacit understanding that in extreme cases the Agency could use such methods. Moreover, complaints of torture did not give rise to investigations and of 600 complaints of ill-treatment or torture brought between 2001 and 2006, none had been followed up. Felice Gaer, the Committee Expert serving as Co-Rapporteur for the report of Israel, was concerned about a lack of effective follow-up on complaints brought against the Israeli Defense Forces; the fact that Israeli Defense Forces investigations were carried out by the Israeli Defense Force itself; and the Israeli Defense Force's “Coordinated Immediate Return Procedure” which did not provide sufficient guarantees for those being returned that they would not face torture. She also raised the issue of settler violence in the territories, and reports that no action was taken in such cases. Other Committee Experts asked, among others, about the practice of targeted killings; the discrepancy in the legal age of majority for Palestinians (16) and Israelis (18); the existence of the secret detention and interrogation facility, known as “Facility 1391” and the Supreme Court ruling upholding that no investigations could be carried out concerning the activities there; and restrictions on the travel of persons outside of Gaza for medical treatment, in particular given the destruction of the health infrastructure there.
Also representing the delegation of Israel were representatives from the Ministry of Foreign Affairs, the Ministry of Justice, the Prime Minister's Office, and the Permanent Mission of Israel in Geneva.
The delegation will return to the Committee at 3 p.m. on Wednesday, 6 May, to provide its responses to the questions raised today.
Israel is among the 146 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Chile to the questions posed by Experts on 4 May.
Report of Israel
Describing developments since the submission of its report in 2001, the fourth periodic report of Israel (CAT/C/ISR/4) notes the conclusion of the Israel Security Agency Law, in 2002, regularizing the activities of its security agency. It also amended the Extradition Law to permit extradition of nationals in all cases. However, under the Amendment, the extradition of any Israeli citizen and resident at the time the offence was committed is subject to a condition that he be permitted by the requesting State to serve any sentence imposed on him following his extradition in Israel. On 26 June 2006, the Knesset approved the Criminal Procedure (Detainee Suspected of Security Offence) (Temporary Provision) Law, 2006, which is a temporary provision for a defined period of 18 months, and also establishes specific provisions regarding delay in arraignment before a judge. With regard to case law, in May 2006 the Supreme Court issued a landmark decision laying down a court-made doctrine on the exclusion of unlawfully obtained evidence, holding that, under appropriate circumstances, substantial illegality in obtaining the evidence shall lead to its exclusion, even if there is no suspicion as to the veracity of its content.
As detailed in Israel’s previous reports, the Israeli Defense Forces (IDF) maintain a strict policy of investigating every claim of maltreatment by IDF soldiers. The IDF instructions specifically prohibit any improper attitudes towards detainees, and instruct as to the denunciation of any instance of an inappropriate behaviour of a soldier in relation to detainees. In cases of soldiers’ mistreatment of detainees and interrogatees, soldiers are either court-martialled or face other disciplinary proceedings, depending on the severity of the charges and policy of the Military Attorney’s Office. The interrogation of soldiers suspected of the above violations is performed by the Investigative Military Police. This unit is subordinate to the IDF General Staff, independent from the IDF regional commands, and therefore autonomous to handle the investigations within the auspices of the Military Attorney’s Office. The Military Attorney’s Office and the military courts vigorously assist in upholding these norms. Among noteworthy examples, two soldiers charged with beating cuffed detainees while transporting them from the Beit El military court to a detention facility were sentenced to seven to ten months of imprisonment by the Military Court of Appeals. In another case, several soldiers charged with assault, aggravated assault, and abuse of Palestinian residents at the Calandia checkpoint were sentenced to four to nine months of imprisonment.
A table of statistics on the unlawful use of force by police officers (2001-2004) has fairly consistent figures across the four years, showing a total of 1,273 such complaints were investigated in 2004, of which 49 resulted in criminal proceedings; 121 resulted in disciplinary measures; 354 showed a lack of guilt; 65 lacked public interest; 47 had unknown felons; and in 637 there was a lack of evidence. Among noteworthy examples of cases, is the State of Israel v. Nir Levy et al. (19.5.05), in which five border police officers were convicted of assault under circumstances constituting a severe injury in aggravated circumstances, abuse of a minor or a helpless person, and obstruction of court procedures. They were sentenced to between four and fourteen and a half months of imprisonment. The indictments were filed shortly after an immediate and extensive investigation was completed by the Department involving the officers detaining a Palestinian resident, beating and abusing him.
Presentation of Report
AHARON LESHNO YAAR, Permanent Representative of Israel to the United Nations Office at Geneva, was particularly pleased to note that since Israel's last presentation before the Committee in 2001, several significant developments had taken place both in law and practice, which had placed Israel in line with its commitments under the Convention. Also since the last presentation, the strategic environment in the region continued to deteriorate and Israel was facing ever greater and more dangerous challenges, both from State and non-State actors. In spite of those menaces, Israel had consciously chosen to open itself to international scrutiny through interaction with the United Nations human rights treaty body system, other United Nations mechanisms and several non-governmental organizations (NGOs).
While recognizing that Israel had to impose restraints on its own actions in conformity with its responsibilities under international law, Mr. Leshno Yaar wished to underscore the importance of putting things into perspective, and that understanding Israel's pressing security, political and social situation was critical for recognizing the context in which they had made advancements, as well as addressing the challenges they still faced, given their limited resources and ongoing security threats. Those exceptional circumstances were unique among other democracies.
SHAI NITZAN, Deputy State Attorney for Special Affairs with the Ministry of Justice in Jerusalem, said that, since its inception, Israel had participated in seven wars and had endured many terrorist attacks. Throughout the last decade, Israel had been subject to a continuous and murderous string of terrorist attacks, which had targeted Israelis wherever they might be, utterly failing to distinguish between soldiers and civilians. The Gaza Strip was controlled by a murderous terrorist organization that acted unceasingly to strike at Israel and its inhabitants, violating every possible rule of international law in its indiscriminate violent acts.
Mr. Nitzan regretted that, since the last presentation before the Committee, the threat of terrorism had not diminished. To the contrary, during the current period, more than 1,100 Israelis had been killed, and nearly 8,000 had been wounded. Terrorist attacks against Israelis had been carried out both in Israel as well as in the West Bank and Gaza and also from within those territories. Those attacks were generally aimed at civilian centres, streets and buses, and also against bases and facilities of the Israeli Defense Forces. The terrorist attacks had intensified since the Hamas terrorist organization had taken control of the Gaza Strip. In 2008 alone, 3,716 rockets and mortars had been fired at Southern Israel and since 2005, 9,555. The firing resulted in many civilians killed and injured, and disturbed any attempt to live a normal life in cities and communities of Southern Israel.
Preventing terrorism effectively while ensuring that the basic human rights of even the most dangerous and brutal criminals were protected was clearly a demanding and complex task, Mr. Nitzan said. Israel often had to fight with one hand tied behind its back. Nevertheless, since 2001, major developments in the implementation of the Convention had taken place in Israel. One of the most significant of those was the enactment of the Israel Security Agency Law, which addressed the major relevant issues concerning the mandate, operation and scope of functioning of the Israel Security Agency, and following the Supreme Court's ruling, it did not authorize Israel Security Agency interrogators to use physical force during interrogations. The law established a Ministerial Committee to supervise the Israel Security Agency, and that the State Comptroller and Ministry of Justice would also supervise certain aspects of the Agency's operations. The Act also compelled routing reports of the head of the Agency to the Ministerial Committee and to the Knesset Service Affairs Committee no less than every three months. Today, unlike before, there was a law that defined the Israel Security Agency's responsibilities and limitations very clearly and that stipulated several bodies to supervise it.
There were also several major developments concerning prisoners and detainees rights. Among them, on 12 February 2007, in the case Physicians for human rights et al. v. the Minister of Public Security et al.the Supreme Court held that the State had to provide a bed to every prisoner held in an Israeli prison. In its decision, the Court stated that the right to sleep in a bed was a basic condition for living in dignity, based on the right to dignity anchored in the Basic Law: Human Dignity and Liberty.
A second development was the enactment of the Criminal Procedure (Powers of Enforcement-Arrests) Law, which stated that investigations of suspects had to be recorded, and that principle was gradually implemented by the police, according to the type of offence in every case. Here, Mr. Nitzan noted that over the last couple of years police investigators and investigation officers had undergone training, as part of the implementation of that law. To date, the courts had never found cause to release a suspect from custody due to prohibited conduct of investigators and there were no records of cases in which such misconduct had been recorded during investigations.
Mr. Nitzan added that, lately, the Israeli Prison Service had been appointed the authority in charge of the large majority of Israeli detention facilities, some of which had previously been controlled by the military or the police. That meant that, almost only [sic] Prison Service personnel, who were trained for that job, were in charge of prisoners and detainees. To date, seven detention facilities had been transferred from the Police to the Prison Service, and four detention facilities had been transferred from the Israeli Defense Forces to the Service, making a total of 6,152 prison cells transferred.
Complaints against Israel Security Agency personnel alleging the use of unlawful investigation techniques were dealt with by the Inspector for Complaints against Israel Security Agency Interrogators, Mr. Nitzan continued. The head of that unit was granted the authority of a disciplinary investigator. The Inspector functioned independently and no member of the Agency could interfere with its findings. The Inspector functioned under the close supervision of a high-ranking prosecutor from the State Attorney's Office. A decision was made regarding the complaint by the Attorney General, the State Attorney and the prosecutor, following a thorough examination of the Inspector's findings. That decision was an administrative one, subject to the judicial review of the Supreme Court sitting as the High Court of Justice. In addition, if suspicion arose that a criminal offence had been committed during Israel Security Agency interrogations, the Department for Investigation of Police Officers was authorized to investigate it independently.
In 2004, the Police Ordinance had been amended, expanding the Department for Investigation of Police Officers' scope of authority over Israel Security Agency interrogators which now applied to every criminal offence committed in the course of fulfilling the interrogators' undertaking, or in relation to it. The scope had previously been limited to criminal offences committed in the course of an interrogation, or with regard to detainees in custody awaiting interrogation. Up to today, four cases, examined by the Inspector had resulted in disciplinary measures and several cases had resulted in general remarks to Israel Security Agency interrogators, Mr. Nitzan said.
Israel acknowledged the importance of family visits, and enabled those visits despite the security and administrative difficulties involved, Mr. Nitzan continued. In recent years, over 4,000 permits had been granted per month and over 20,000 visits had been held each month from the different districts to relatives incarcerated in Israeli prisons and those visits facilitated by the International Red Cross. Most of the requests were approved and only a small minority were refused on security grounds. Visits by the Red Cross to prisoners and detainees took place regularly. Basically, every request by the Red Cross to visit prisoners and detainees was approved, and hundreds of such visits took place every year.
With regard to the Committee's concluding observations on Israel's previous report, Israel had examined and re-examined the Committee's recommendations in depth and had applied many of them. With regard to the Committee's recommendation that Israeli anchor the prohibition against torture in its legislation, Mr. Nitzan highlighted the prohibition in Penal Law against "oppression by [a] public servant", for which public servants could be liable for imprisonment up to three years, as well as the "landmark" May 2006 decision of the Supreme Court on the exclusion of illegally obtained evidence. Also underscored was that the law recognized the right to compensation and that courts had granted compensation to several such applicants; that effective complaint, investigative and prosecution mechanisms were in place; and that cases of police misconduct were examined by the Department for Investigation of Police Officers in the Ministry of Justice and were handled with great severity.
Specifically with regard to cases against the Israel Security Agency, since the Supreme Court handed down its decision concerning the investigation methods of the Agency, only a few petitions had been submitted to the High Court of Justice challenging the Agency's investigation methods. That small amount of filed petitions stood in stark contrast to the hundreds of petitions filed annually with similar allegations before the ruling was given. Mr. Nitzan underscored that even in that small amount of cases it had not been held by the Court that illegal means of investigations had been used.
Concerning the Israel Prisons Service, every prisoner or detainee in the care of the Service had several complaint mechanisms regarding the staff and wardens' use of force. Such mechanisms included the filing of a complaint with the Prison Director, petitioning the relevant District Court, and filing a complaint to the Warden's Investigation Unit.
Finally, regarding training and education, Mr. Nitzan stressed that the Convention was incorporated in the basic and routine training of all members of the security forces – the Police, the Israeli Defense Forces, the Israeli Prisons Service and the Israel Security Agency.
Questions Raised by Committee Experts
FERNANDO MARIÑO MENENDEZ, the Committee Chairperson serving as Rapporteur for the report of Israel, with reference to the workings of the Israel Security Agency, recalled that the international community had agreed that the prohibition of torture was absolute and allowed for no excuses either in times of peace, in times of war, or in times of emergency. The Convention specifically stipulated that there was no justification for carrying out acts of torture. Also worth underscoring was that any servant of the State or person acting on behalf of the State was liable for their acts, and could not claim a defence of superior orders.
Mr. Mariño Menendez was concerned that there was still no crime of torture defined in the domestic law in Israel that reflected all the provisions set out in the Convention. Also of concern was that the crime of torture in Israel did not carry sufficiently severe penalties. While the current Constitution had provisions about the right to human dignity, any future Constitution should specifically prohibit torture.
All knew the 2009 decision of the Supreme Court on the defence of necessity in cases of torture and the "ticking bomb" scenario. Perhaps there were other conclusions that could be drawn from that decision. According to reports in the media and from NGOs, the Israel Security Agency used torture in its interrogations. Moreover, it was reported that complaints submitted regarding those acts did not give rise to investigations. It was alleged that between 2001 and 2006, there had been 600 cases of ill-treatment or torture, none of which were followed up on, Mr. Mariño Menendez said.
Was there any sort of tacit understanding that in extreme cases the Israel Security Agency was allowed to use extreme methods of interrogation that amounted to torture, he asked?
Another concern was that the rules governing the Israel Security Agency did not apply in territories outside Israel's jurisdiction. That meant that the occupied Territories were exempted from these oversight regulations. However, that was in contravention of the International Court of Justice ruling as well as the Convention's provisions, which established international responsibility for acts by States parties in places over which they had effective control, Mr. Mariño Menendez underscored.
Regarding detentions, Mr. Mariño Menendez observed that the time periods for administrative detentions were excessively long, and that detainees under that regime could be held for weeks or even months before coming before a judge. Administrative detentions of this kind, without charges being laid or the detainee brought before a judge, was the equivalent of torture.
As everyone knew, in Israel an "illegal combatant" could be kept in detention without guarantees provided for prisoners of war. The United States had used that same terminology to hold prisoners in Guantanamo, a category it had recently given up. Mr. Mariño Menendez asked for more information about such detainees, how an illegal combatant was defined and what regime was applicable to them. For example, was access to a lawyer guaranteed and within what timeframe?
Mr. Mariño Menendez also highlighted that, unlike police investigations, those undertaken by the Israel Security Agency were not recorded either on audiotapes or on video.
Regarding the principle of non-refoulement for persons who were likely to be submitted to torture or ill-treatment, Mr. Mariño Menendez asked about the procedures in place in Israel to prevent such refoulement, expulsion or return, and highlighted a number of cases involving Egyptians, in particular, in which it appeared that proper procedures had not been carried out.
FELICE GAER, the Committee Expert serving as Co-Rapporteur for the report of Israel, said she was aware of the serious constraints faced by Israel and the long history of violence in the region, which had had such a devastating effect on both the Israelis and the Palestinians living there. In that connection, the Committee had been heartened by the position of the Supreme Court that the fight against terrorism had to be carried out in accordance with the law, which included international law.
Ms. Gaer was concerned that there were no statistics on the number of cases that had been dismissed on the basis of video recordings of interrogations. Furthermore, why had the introduction of that technology been so gradual and why did they not cover Israel Security Agency interrogations?
On access to lawyers, specifically with regard to minors, Ms. Gaer asked for a response to allegations in NGO reports that 95 per cent of cases in Israeli military courts involving Palestinian children “rely on confessions to obtain a conviction.”
Ms. Gaer also asked for statistics on detentions, in particular the length of time for detentions before detainees were provided access to lawyers, medical checks or visits from family members.
What were the safeguards in place to ensure that the Inspector of the Israel Security Agency, along with the Attorney General, the State Attorney and the prosecutor, correctly fulfilled their oversight function for Agency interrogations, Ms. Gaer asked? According to information, there had not been a single criminal investigation into any such cases.
Also according to NGOs, with regard to cases brought against the Israeli Defense Forces, the number of complaints had been decreasing given a perceived lack of effectiveness in bringing such complaints, Ms. Gaer observed.
Today they had heard that there were five investigations brought against Israeli Defense Force colonels. Ms. Gaer said that NGOs had complained that those investigations were not effective, as they were carried out by the Israeli Defense Force itself. Why had Israel not established an independent mechanism?
Regarding the killings of the 13 unarmed Palestinian citizens of Israel during October 2000 protests in Israel which had been the subject of recommendations of the Orr Commission, Ms. Gaer observed that those cases had not been followed up on the grounds that the evidence was no longer obtainable and no autopsies had been carried out at the time. Ms. Gaer said that brought up a host of questions about police procedures, including why no autopsies had been ordered.
On family visits, while appreciating the information provided today, Ms. Gaer asked for the number of such visits that had been denied.
On the “Coordinated Immediate Return Procedure”, established by Israeli Defense Force order 1/3.000, Ms. Gaer asked if there was a specific assessment related to torture that had to be carried out under that procedure, whether the officials carrying out the assessment were aware of what the threat of torture might constitute and whether any oversight was provided.
Regarding settler violence in the territories, who had jurisdiction over reports of settler violence and harassment against Palestinian in the West Bank and Gaza? The Committee had reports that there was no action taken in such cases. Did the military courts have jurisdiction over settler violence?
Similarly, for "Palestinian-on-Palestinian" violence taking place in the territories, including widespread reports of killings, arbitrary arrests and maiming, in particular by Fatah, did Israel have any jurisdiction over such cases?
Finally, Ms. Gaer particularly underscored her concern that details of safeguards for interrogations detailed today did not appear to apply to security interrogations or interrogations of suspects arrested in the occupied territories.
Other Committee Experts then raised a number of concerns and asked questions, including about the practice of targeted killings, which allowed for suspects that had never come before a court of law to be targeted and murdered; the discrepancy in the legal age of majority for Palestinians (16), as opposed to Israelis (18), which allowed for Palestinians to face tougher criminal sanctions at an earlier age; the existence of the secret detention and interrogation facility, known as “Facility 1391”, and the Supreme Court ruling upholding that no investigations could be carried out concerning the activities there; whether Israel applied the Istanbul Protocol in investigating torture claims; and a response on reports that doctors had been involved in torture.
On health issues, specifically with regard to the most recent Israeli military action in Gaza, there had been reports of denial of medical care for the wounded. There had also been reports of targeting of health workers, hospitals and ambulances, and it was wondered how many of those so targeted had ended up mentally or physically disabled. Several Experts worried about restrictions on the travel of persons outside of Gaza for medical treatment, in particular given the destruction of the health infrastructure there. Was it true that the loss of a limb had been ruled to be a "quality of life" issue and one that did not warrant the travel of Palestinians for treatment elsewhere? Also raised by Experts was the use of white phosphorous bombs by the Israeli Defense Forces.
Many Committee Experts echoed concerns voiced by the rapporteurs, in particular with regard to Israel's stance that the occupied Territories were not really under its control and therefore Israel was not bound by its obligations under the Convention in that area; the need to ensure the absolute nature of the prohibition against torture; the fact that there could be no "balancing test" with regard to admission of confessions obtained under torture; and the low number of complaints of torture that were investigated.
For use of the information media; not an official record