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U.S. torture report shows the danger of Israel's legal loopholes

In American discourse, torture is a dark stain on the country’s recent history. In Israel, there is no law against torture and the justification of its use is still mainstream.

By Nadeem Shehadeh and Amjad Iraqi

Illustrative photo of protests against Guantanamo (Photo by Lilac Mountain/Shutterstock.com)

Illustrative photo of protests against Guantanamo (Photo by Lilac Mountain/Shutterstock.com)

The United States Senate this week released its long-awaited report on the CIA’s use of torture during the so-called “War on Terror.” A significant revelation in the report was that the CIA relied upon an Israeli High Court decision on torture and other Israeli policies as legal justifications for its own torture practices. These include the vague concepts of “necessity” and “ticking bombs,” and the use of enhanced interrogation techniques defined misleadingly as “moderate physical pressure.”

Since the Israeli High Court handed down its decision on torture 15 years ago, the ruling has been lauded by many observers as “revolutionary” for its supposed regulation of the use of torture to obtain information from suspects for urgent security purposes. However, as demonstrated by the Senate report, and as Israeli and Palestinian human rights organizations have long-argued, the High Court’s ruling is riddled with serious flaws – or more accurately, deliberate shortcomings – that merely grant the appearance of a progressive approach to the use of torture.

A chief problem is that torture is not a crime under Israeli law. From the outset, this violates provisions of international human rights covenants ratified by Israel, such as the Convention Against Torture, that forbid the use of torture and cruel, inhuman and degrading treatment (CIDT) in all their forms. Among other recommendations, international human rights bodies have consistently called on Israel to explicitly prohibit torture through legislation in line with these treaties; to this day, no such legislation exists.

In part because torture is not a crime, there are no criminal prosecutions of its perpetrators, and hence no legal remedies for victims. Israeli agencies that routinely use torture in their work – including the military, the Shin Bet (Israel Security Agency), and prison authorities – enjoy extensive impunity. While the High Court’s ruling and various internal state bodies give the illusion of oversight and regulation, in reality these ‘torture agencies’ are essentially free to act without fear of punishment. This is why hundreds of cases of torture against detainees under Israeli custody are never even investigated, and why practices such as force-feeding of hunger-striking prisoners can be legalized.

A further problem is the Israeli public’s apathy and oftentimes approval of the state’s use of torture. The current debate in the U.S. over the Senate report largely views the government’s use of torture as a dark stain on American history and values, and recognizes that, despite supposed security reasons, the practice is legally and morally wrong. In Israel, however, the view is the opposite. Not only has this “dark stain” been a constant reality, but many Israelis believe that torture is acceptable, justified and necessary. Consequently, there is almost no public debate on this practice in Israel. Government officials frequently attack human rights groups that attempt to raise the issue, accusing them of attempting to demonize Israel or undermine its security.

The Senate report has made it clear that the impact of these Israeli laws and practices are not confined to Israel and the Occupied Territories alone. The CIA’s acknowledgement of the “Israeli example” as an inspiration and justification for its practices demonstrates the danger of Israel’s influence in undermining international legal principles. In view of this, the outrage expressed by the American public should also send a strong message that Israel’s “loopholes” for the use of torture remain legally and morally unacceptable.

The way forward must begin with a total switch in thinking and the enactment of specific legislation in Israel that explicitly prohibits torture and ill-treatment in all its forms, and which ensures mechanisms of accountability for its use, including criminal prosecutions. Adalah and other human rights organizations have recently proposed bills in this regard based on international human rights treaties. These documents and principles should serve as better inspiration for Israel and other countries to protect individuals’ rights and security, rather than pursuing practices that are characteristic of dark regimes.

Nadeem Shehadeh, a staff attorney, and Amjad Iraqi, an international advocacy coordinator, work at Adalah – The Legal Center for Arab Minority Rights in Israel.

Related:
Legal experts cannot erase Israel’s history of torture
Confronting our tyrants: Incarceration and torture in Palestinian prisons
Open Mic: Israel has failed to outlaw torture

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    COMMENTS

    1. Jurba

      When the Palestinians stop trying to murder Israeli civilians as a socially acceptable tactic Israeli civilians will stop accepting enhanced interrogation of Palestinians as a socially acceptable tactic. Deal?

      Reply to Comment
      • Yeah, Right

        So why did Israel bother signing the Convention Against Torture if that is going to be its attitude?

        Does it simply like the kudos that come from playing pretendies i.e. from saying one thing but doing quite another?

        Reply to Comment
        • Jurba

          Probably because it did not expect that the Arabs would continue trying to murder Israeli civilians for 67 years.

          Reply to Comment
          • Yeah, Right

            For 67 years?

            That would require a pretty nifty trip in the WayBack Machine with Sherman and Prof. Peabody.

            You might want to look up the date when Israel signed the Convention Against Torture.

            Hint: Israel didn’t sign it “67 years ago”.

            Reply to Comment
          • Yeah, Right

            I now look forward to Sluggo pulling a rabbit out of a hat.

            After all, as in all things Sluggo it will go spectacularly wrong.

            “Oops, wrong hat!”

            Reply to Comment
          • Yeah, Right

            And I picture you more in the Boris Badenov mould.

            Regardless, I was much more of a Roger Ramjet fan. He had much better villains.

            Reply to Comment
          • Suggs

            My debates with you are done. You can’t be all that bad given your taste in cartoon. I’ll just have to respect that we have different opinions. By the way, there is a commenter here named Brian who enjoys Roger Rambutt.

            Reply to Comment
      • Bryan

        Typically inane comment. The first of twenty key findings in the report is that “The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.” That is pretty much confirmed by every study of torture ever conducted. Israel’s brutal and wicked methods (see also targeted murder and house demolitions) are simply not effective. How many of the minority of Palestinians “who attempt to murder Israeli citizens” do so because of the brutal treatment they have received at the hands of Israeli torturers and jailers? If banging your head against a brick wall gives you a headache why don’t you stop.

        Reply to Comment
    2. Pedro X

      The men in orange overalls in the picture accompanying the article are doppelgangers for the men executed in public by Hamas outside a mosque in Gaza during Gaza War III.

      The writers here from Adalah from the fringe of society, before trying to convince Israeli society that it needs a new law against torture, despite the law set down by Israel’s Supreme Court, it should go to Gaza and lecture Hamas and then come back and lecture Fatah on torture and terrorism.

      Once Fatah and Hamas have given up torture as an every day instrument and eschewed violence as acceptable method of resistance, the Adalah writers can address Israelis again.

      Reply to Comment
      • Fatah and PA torture are in Israel’s interests much of the time, as you are well aware.

        Reply to Comment
      • Yeah, Right

        PX: …”despite the law set down by Israel’s Supreme Court”…

        Pedro appears not to understand the difference between “a court” and “a legislature”

        Reply to Comment
        • Ginger Eis

          Courts do make laws! Stop talking about stuff you understand as much as everyone else here. While the Constitutional orthodoxy, the Legislative branch make laws by exclusivity, the Judiciary interprets and the Executive branch enforces, there are several instruments within the legal science and practice available to Courts to make and unmake laws!

          Reply to Comment
          • Ginger Eis

            “…. While WITHIN the Constitutional orthodoxy ….” (was meant)

            Reply to Comment
          • Yeah, Right

            Ginger: “there are several instruments within the legal science and practice available to Courts to make and unmake laws!”

            Unmake laws, yes.

            MAKE laws? No.

            Only a legislature can “make laws”, Ginger.

            That’s why it is called a “legislature”.

            Reply to Comment
          • Ginger Eis

            Your claim reveals the woeful extent of your ignorance of the stuff you pompously assume to know and try to lecture others about, and I have neither the need nor the desire to impact on you the knowledge others pay for to acquire. That’s all. Just so you (and any other interested person) don’t go away empty-handed from this discussion, I would remind you that there are several, albeit exhaustive SOURCES of “the law” and “legislation” (i.e. statutes) from the “legislature” is just ONE of them! That is the case with regard to both Civil- and Common law systems or systems that combine both.

            Reply to Comment
          • Yeah, Right

            Ginger: ….”and I have neither the need nor the desire to impact on you the knowledge others pay for to acquire”….

            Translation: Try as she might, Ginger has been unable to come up with an example of a court “making law”.

            So she does what she always does: she waves her arms about like a demented windmill, and then she declares that she has no time for this as she storms out the room.

            As a debating tactic it isn’t very effective, but it certainly is oh-so-Ginger.

            Ginger, sweetie, courts can’t “make law”.

            They can interpret what a legislative act **means**, sure.

            They can also strike out a piece of legislation as being in some way unconstitutional or in some other way “unlawful”, sure.

            But they can’t “make law”, because that’s not their job.

            That’s the job of a l.e.g.i.s.l.a.t.u.r.e.

            Reply to Comment
          • Ginger Eis

            “I would remind you that there are several, albeit exhaustive SOURCES of “the law” and “legislation” (i.e. statutes) from the “legislature” is just ONE of them!”

            That’s what you have to find out – on YOUR own (unless you think that Statutes are the only source of law).

            You might want to begin with “General Principles Of Law”. Those belong to the most important sources of law and are (sometimes) superior to “statutes” from the legislature. Those have normative character, are generally applicable and are JUDGE MADE LAWS. The “legislature” has NOTHING to do with them. The “legislature” may or may not want to codify them and turn them into statute(s), but in any case they remain ‘A’ source without which law as we know it won’t exist. This might aid you a little further (assuming it does not confuse you even more!):

            http://www.dwc.knaw.nl/DL/publications/PU00009908.pdf (p. 17-28 or 109-120).

            Honestly, I do not have the patience and the civility to deal kindly with a POMPOUS ignoramus (emphasis on “pompous”, because I can otherwise be patient and helpful). That’s my personal frailty. But that’s who I am. I have made my point and you yours. They who know the stuff will make their own judgments. If you want to continue ranting ad infinitum, pls. do so by all means; knock yourself out. I am done here.
            (btw. we are talking about others laws NOT made by the Legislator AND no one is doubting the job of the legislator here. If you are looking for a face saving way out and trying to invent a problem that does not exist, that’s your problem. But no one is fooled by that maneuver!).

            Reply to Comment
          • Ginger Eis

            “(btw. we are talking about other laws NOT made by the Legislator …”

            was meant, not …others laws…

            Reply to Comment
          • Brian

            Eis: “Courts do make laws!” …

            What follows after that is piles and piles of bullsh*t involving Eis frantically trying to obscure the fact that she was caught out revealing a shocking level of ignorance and muddleheadedness. The bullsh*t comes in two forms: 1. Deliberately opaque nonsense about law. 2. Her absolutely trademark, signature “I do not have the patience and the civility to deal…I have made my point and you yours. They who know the stuff will make their own judgments. If you want to continue ranting ad infinitum, pls. do so by all means; knock yourself out. I am done here.” This latter frantic exit from the sinking ship is so predictable and so well known, literally line by line, by now that it constitutes a schtick, a known act, a comedic device the audience is so familiar with that the laughter follows automatically. As on cue. As in stage directions: “cue standard comic Eisian exit, arms waving, screeching usual vituperative nonsense.”

            Reply to Comment
          • Merav

            brian,

            the link provided by Gingi and her comment answer all the questions about “judge made laws” but you are tooooo stoooopid to notic; as far as Gingi is concerned, you brian don’t exist….. .…# that’s difficult to handle but pls stop moaning and groaning for Gingi; you are embarrassing yourself….///… you attach yourself to every post from Gingi and start frying in your own juice brien, envious an jealous of Gingi …/// go home you little stalker, find a girl and maybe you come to your senses….# Gingi is not interested, brien….

            Reply to Comment
      • Were you unable to read the caption for the photo (Illustrative photo of protests against Guantanamo (Photo by Lilac Mountain/Shutterstock.com). The first thing that dropped out of your mouth is a lie. Ka-Ching!

        Reply to Comment
      • Bryan

        The first retort of a scoundrel – if we are not as wicked as our opponents we will be destroyed. I suggest you do some serious reading of the Hebrew prophets who clearly mapped out your obligations to God and to Man to act justly and to treat others as you would wish to be treated by them.

        Reply to Comment
    3. Whipalsh

      It is always hilarious when Arabs try to lecture the Jewish state and its people on torture or human rights.

      Reply to Comment
      • Bryan

        Unfortunately it is not just Arabs – its the entire civilised world. Can you really believe that in the twenty-first century legions of Zionist supporters are still defending torture, asassination and collective punishments like house demolitions?

        Reply to Comment
    4. ezra

      Why is Israel the focus of this article? Which is the Middle Eastern country where torture is not used? Nadeem and Amjad? How about your home countries? Give Israel credit for allowing public criticism of its policies, which would result in torture in must of the Middle East.

      Reply to Comment
      • patriot

        “Nadeem and Amjad? How about your home countries?”

        They’re Israeli, aren’t they?

        Reply to Comment
      • Bryan

        Perhaps because Israel claims to be a western democracy, has signed the international convention against torture, and enjoys massive military, diplomatic and economic support from the USA. Yes there are other evil countries but Arab dictatorships are merely imperial outposts in the struggle for America to control the world’s resources. Israel is different – it is joined at the hip with the USA and deeply committed to American values. Yes the CIA has got away with murder, but America dedicated $40 million to an investigation of the scandal.

        Reply to Comment
        • Sluggo

          No no no. It does not matter what Israel says it is or who her allies are. A double standard is never acceptable and it is morally indefensible for you or anyone else to suggest otherwise. The more I educate people like you about this, the better it will be for Syrians and Tibetans who don’t have the good fortune of being oppressed by a country that gets US aid or calls itself a democracy. Lol.

          Reply to Comment
          • Yeah, Right

            Sluggo: “The more I educate people like you about this, the better it will be for Syrians and Tibetans who don’t have the good fortune of being oppressed by a country that gets US aid or calls itself a democracy”

            He who pays the piper calls the tune, Sluggo.

            It is simplicity itself to turn your “argument” on its head i.e. the correct moral position for the USA to take is to use whatever levers of influence it has whenever it comes across human rights abuse.

            In the case of Syria the USA has almost no leverage, so when It Does What It Can those efforts amount to…. not much.

            But in the case of Israel it has enormous leverage, and so if It Does What It Can then those efforts would amount to…. a lot.

            It is unconscionable that you should suggest that the USA *refrain* from pulling those levers w.r.t. Israel merely because it doesn’t possess the same levers w.r.t. Syria.

            In both cases it would be Doing What It Can With The Levers That Are At Its Disposal.

            You can’t possibly have an objection to that, right?

            Reply to Comment
          • Sluggo

            I’ll make this easy by rephrasing that I agree with your position on this one. I think it is more sound to argue agains the US dictation of the finds that Israel as they use e funds as intended.

            Reply to Comment
          • Yeah, Right

            Sluggo: “I’ll make this easy by rephrasing that I agree with your position on this one.”

            Fine, provided that your “rephrasing” is even half-way intelligible.

            Sluggo: “I think it is more sound to argue agains the US dictation of the finds that Israel as they use e funds as intended.”

            sigh.

            Not even half-way intelligible.

            Reply to Comment
    5. utemia

      Torture is ineffectual for actual intelligence gathering. “Hard men making hard choices (while hard)” coupled with an enthusiasm for retribution is the only reason for it.

      Reply to Comment
      • Pedro X

        Utemai, you are wrong. Let me refer you to case HC 7563/97. Abd al Rahman Ismail Ganimat was a terrorist who was involved in the kidnapping and murder of Sharon Edry and the bombing of Cafe Aleppo in which 3 women were killed and another 30 people were injured. Abd al Rahman Ismail Ganimat was arrested on November 13, 1997 and interrogated. The detainee claimed the interrogators used physical force against in the interrogation, namely use of the “Shabach” position”, excessive tightening of handcuffs and sleep deprivation. At trial the accused was found guilty and sentenced to 5 life sentences plus 20 years.

        His interrogation provided intelligence which lead directly to the interception of a powerful bomb device identical to the one used in the Cafe Aleppo bombing, thus preventing another bombing and murder of Israeli civilians.

        Hamas terrorist Hat’m Abu Zayda was arrested and interrogated in 1995, which interrogation revealed future plans of terrorist attacks in which he was involved as a recruiter and planner of terrorist attacks. The information obtained from him prevented a number of terrorist attacks and the arrest of those whom he recruited and used.

        In 1999 the Supreme Court of Israel acknowledged that the law of necessity, particularly in a ticking bomb scenario, would be a defence to an indictment against an investigator for torture. At the same time the court said necessity does not provide security services with permission to authorize the use of torture, it is a case by case matter in the circumstances in which the investigator has to make a decision involving life and death situations.

        In Israel these circumstances are real and decisions have to be made in real time in the fact of planned terrorist attacks in the planning to the enroute stage. In 2002 the PLPF sent a truck filled with explosives to blow up the twin Azrieli towers. The IDF intercepted them before they could explode the truck and themselves. The truck had enough explosives to bring down several Azriell twin towers. The Azrieli towers are 50 stories tall. In 2002 there were 47 successful suicide bombings.

        In 2003 Palestinians tried to send 436 suicide bombers into Israel. 23 attacks were successful and 413 thwarted. In 2004 Palestinians tried to send 341 suicide bombers against Israel. 17 were successful. 159 were intercepted on route.

        The moderate use of physical pressure against captured terrorists prevented ticking bombs from carrying out their attacks. It lead to the discovery of bomb labs in Hebron, Jenin and Nablus with bombs made and ready to be employed. It led to arrests of other terrorists in the planning stages. It led Israel to terrorists whom it killed and thereby preventing them from orchestrating further attacks.

        There is no doubt, in the Israeli experience with Palestinian and Arab terrorism that moderate use of physical pressure works. The problem is that the use of moderate torture in cases of necessity will likely result in the torture of individuals who have no information to extract and that determination in ticking bomb scenarios will only be plain after the fact. Further investigators are likely to use the moderate use of torture in cases not involving necessity, in the sense there is no ticking bomb in the near future.

        The use of moderate forms of physical pressure makes many persons uncomfortable but when the alternative is a bunch of dead Israeli civilians, the Israeli public will leave the issue in the hands of the interrogators.

        Reply to Comment
        • If you were told under torture that it would all stop as soon as you confess to blank, and after a period of torture, which was increased with each “session”, you confessed to blank, you’d consider that a legitimate confession or not the desperate act of someone under torture to stop the torture? There’s been a lot of discussion regarding torture (“enhanced interrogation” in Cheney-speak) and how worthless it is. It’s satisfying to the torturer, no doubt, but not fruitful and this is common knowledge, no matter how many examples you wish to post Ex.

          Reply to Comment
    6. No worries! If your blank is as big as your brain, I won’t feel a thing!

      Reply to Comment
    7. Average American

      nsttnocontentcomment

      Reply to Comment
    8. Average American

      “Torture” is as hard to define as “terrorism”, isn’t it? It is not considered terrorism, for example, that Begin’s Irgun rolled live grenades into crowded Arab markets, shelled a town and shot everyone who tried to run out, blew up a hotel, killed a British government official, booby-trapped dead British soldiers with explosives, sank an American ship.

      Reply to Comment
      • Yeah, Right

        ““Torture” is as hard to define as “terrorism”, isn’t it?”

        No, actually.

        At least “torture” has a legal definition, unlike “terrorism”.

        There is even a link to it in the article itself.

        Reply to Comment
      • Sluggo

        Are you claiming that the USS Liberty was sunk? Even the original libel does not go that far.

        Reply to Comment
      • Sluggo

        Let say that some of these acts, for the sake of discussion, are terrorism. What is the implication? What would you like to see happen?

        Reply to Comment
    9. Yeah, Right

      ““Torture” is as hard to define as “terrorism”, isn’t it?”

      No, actually.

      At least “torture” has a legal definition, unlike “terrorism”.

      There is even a link to it in the article itself.

      Reply to Comment
      • Merav

        //…’seems you are a terrorist …

        Reply to Comment
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