The right not to be subjected to torture is an absolute right
. International law makes no exceptions to the absolute prohibition on torture – which constitutes a crime against humanity – irrespective of circumstances of war or a fight against terror. Torture is defined by United Nations
as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person […]".
Since 1948 and much more so since the occupation of the West bank and Gaza Strip, Israeli security forces – with the Israel Security Agency (ISA) and Military Unit 504 at the forefront – have been torturing and ill-treating Palestinians every year using cruel physical and mental methods in order to extract information or confessions. For years and to this day, ISA interrogators have been using a combination of torture techniques, among them, a triad technique composed of painful and contorted shackling, hooding with a wet, foul-smelling sack and exposure to loud music, continued for hours or days at a time; forced standing or crouching in contorted positions to the point of physical collapse; beatings and violent shaking; sleep and food deprivation; prolonged exposure to extreme temperatures, harsh lighting or complete darkness; threats, verbal abuse, and degradations; use of family members as a means of pressure; prolonged total denial of contact with the outside world, including attorneys and family. Over the years, the ISA has modified its interrogation and torture methods to suit the changing needs, disposing of some methods to introduce others in their stead.
Until 1987, torture was practiced as the accepted norm, outside any legal framework and without supervision or monitoring of the ISA and its methods. In the few cases which had reached the courts, the ISA interrogators lied in their testimonies, with – according to ISA officials – "the knowledge and approval of the political echelon", and with tacit acceptance by the public and military prosecution systems.
In 1987, following the bus 300 affair and the Nafso trial, an official commission of inquiry (the Landau Commission
) was established to examine the ISA methods of interrogation. The commission determined that "the pressure must never reach the level of physical torture or maltreatment of the interrogee or grievous harm to his honor which deprives him of his human dignity". Nonetheless the commission held that "the exertion of a moderate measure of physical pressure cannot be avoided" (Sections 3.16 and 4.7 of the commission report). Under the heading of "the use of pressure during interrogation", the classified part of the commission report outlined the permissible methods of torture. Despite their incompatibility with international law, the recommendations of the Landau Commission were adopted by the State of Israel, and accepted by the ISA as blanket approval to proceed with the torture of Palestinian interrogees.
Despite the harsh criticism expressed in reports of the State Comptroller and the State Attorney's Office – concluding that the ISA interrogators were knowingly, systematically and severely deviating from the Landau Commission recommendations – the security forces continued to torture interrogees, inter alia, at Secret Facility 1391
and the Al-Khiam Prison in South Lebanon
. Over the years, dozens of Palestinians had "met their death" in the interrogation cellars of the ISA and Military Unit 504.
During 1996-1999, HaMoked filed over 100 petitions to the High Court of Justice (HCJ) on behalf of Palestinians tortured during interrogation and deprived of the right to counsel. In the petitions – filed in real time – HaMoked asserted that the ISA interrogation methods contradicted both Israeli law and the international conventions to which Israel is signatory, and that the "necessity defense" clause – invoked by the ISA as the source of its interrogators' powers – did not provide a priori permission to use illegal methods. In most cases, the court issued an injection, instructing the ISA to refrain from using force against the petitioners until a final decision would be rendered. The state opted to undertake not to use torture during the interrogation in order to avoid a substantive court hearing.In September 1999, the HCJ ruled that the interrogation methods used by ISA were illegal
. The court granted the petitions of HaMoked, the Public Committee against Torture in Israel and the Association for Civil Rights in Israel. However, the Justices did not preclude the possibility that the necessity exclusion would be open to the ISA interrogators. The ISA has been utilizing this judicial caveat, continuing to torture interrogees.
The Supreme Court failed to incorporate into Israeli law the position of international law that torture and ill-treatment are forms of absolute evil, which cannot be permitted or justified under any circumstances.
In the years since the HCJ's prohibition on torture, the number of tortured interrogees has markedly declined. Nonetheless, the ISA continues to torture Palestinian interrogees using "routine" and "unusual" methods, including all those banned by the HCJ. Reports by HaMoked
and other human rights organizations, written on the basis of interrogees' testimonies, expose the routine practice of torture and ill-treatment, and detail the interrogation methods used to inflict pain and suffering, both physical and psychological – all under the auspices of the law enforcement system, and in violation of both Israeli and international law.
The legal authorities add insult to injury. Interrogees' complaints about their torture by ISA interrogators are examined through an internal review mechanism
. The interrogees' complaints comptroller (himself a member of the ISA), and his supervisor at the Ministry of Justice, promote the sweeping closure of hundreds of complaints, without criminal investigation, indictment or prosecution. HaMoked has been pursuing civil damages claims
on behalf of Palestinians tortured by ISA interrogators.
In 1987, the Landau Commission articulated this soon-to-be-fulfilled prophecy: "It is true that strict care must be taken, lest a breach of the structure of prohibitions of the criminal law bring about a loosening of the reins, with each interrogator taking matters into his own hands through the unbridled, arbitrary use of coercion against a suspect. In this way the image of the State as a law-abiding polity which preserves the rights of the citizen, is liable to be irreparably perverted, with it coming to resemble those regimes which grant their security organs unbridled power
" (section 3.16 of the report. Emphasis added).