It’s now (even more) official: torture is legal in Israel

Israel’s Supreme Court has recently clarified, this time explicitly, that interrogational torture is lawful in certain circumstances in Israel’s legal system. The clarification came in seemingly marginal, perhaps even obiter, dicta within two decisions by that Court whilst dismissing yet another complaint on the torture of a Palestinian by interrogators from the Israel Security Agency (ISA, also known as the Shabak, or Shin-Bet), the Israeli body in charge of security intelligence in Israel and the Occupied Territories.

The case concerned Firas Muhammad Tbeish from Hadb al-Fawwar in the West Bank, who was interrogated at the Shikma ISA interrogation facility in Ashqelon, Israel, between September 2012 and March 2013. The Public Committee Against Torture in Israel (PCATI) complained in March 2013 of what they described as the torture of Mr Tbeish, which included sleep deprivation, beating and slapping, holding in the painful ‘banana’ and ‘frog’ positions, threats, curses, humiliations and much more. PCATI requested, among other things, that a criminal investigation be launched against those who tortured Mr Tbeish. The case saw twists and turns over the next five years before the Supreme Court, sitting as High Court of Justice (HCJ), ruled for the state.[1]

So far not exactly breaking news – Israel’s Supreme Court has ruled for the State virtually every single time PCATI has requested that it intervene against the prevailing system which allows the systematic torture of Palestinians suspected of serious terrorist activity. This is hardly surprising, since it was the Supreme Court itself which has created this system. In a landmark ruling almost two decades ago,[2] the Court emphasised the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment in international law and ceremoniously closed the door on the routine, pre-authorised use of the torture methods most prevalent during the 1990s – sleep deprivation, prolonged shackling in contorted positions (often combined with blindfolding and loud music), violent shaking. However, at the same time the Court opened a window for ISA interrogators to continue resorting to torture – the word the Court used was “physical interrogation methods” – in what it called “ticking time-bomb” situations. While not authorised to do so, the Court said, after the fact the Attorney-General could decide that ISA torturers (not so described) would not face trial, or even be subjected to a criminal investigation.[3]

In the 20 years that have passed, the Supreme Court has upheld the legalised torture system it had created against all challenges by PCATI. Not a single one of over 1,000 complaints has led to even one criminal investigation to be opened against an ISA interrogator, let alone a trial, conviction or punishment. ISA interrogators have continued to torture, safe in the knowledge that they enjoy total impunity, thanks in no small measure to the Supreme Court. However, until very recently its Justices were careful, like they were in the 1999 ruling itself, to avoid referring to ISA interrogation techniques as “torture.” When pressed by PCATI, the Court did an impressive amount of inguistic, logical and legal acrobatics to avoid any categorising of ISA’s interrogation methods.

In another long-running case finally decided in 2017,[4] PCATI finally managed to force the Supreme Court into a corner where it had no option but to answer the “is it torture?” question. This, however, proved a bit of a Pyrrhic victory - the Court preferred the version of the ISA interrogators over that of the torture victim, physicians who examined him and an amicus brief by four of the world’s leading legal experts on the issue of torture. It ruled in effect that the “methods” used against Abu Gosh which the State did not deny using (and that the ISA has acknowledged using in other cases), namely sleep deprivation, being placed in painful, contorted positions (including the “banana” and “frog” positions), slaps, curses and humiliations, all while being held incommunicado, miraculously, even in their combination did not cause Abu Gosh “severe pain or suffering.”

Israel’s Supreme Court thus joined an admittedly long list of states who add to the international legal definition of torture a short proviso - “as long as it’s not our officials who are doing it.” This is the line followed, for instance, by Saudi Arabia (re mutilations), Malaysia (re caning), Paraguay and Argentina (re forcing 11-year-old rape victims to continue pregnancy) and the USA under George W. Bush (re waterboarding etc.).

The case of Tbeish was a similar exercise in creative evasion leading to the conclusion that he was not tortured. However, one Justice, David Minz, appeared to have abandoned caution. He stated in his concurring opinion, referring to consultations within ISA prior to deciding on using “exceptional measures” (for which read: torture) that such consultation “does not weaken the rule which provides that torture is prohibited, other than in very exceptional cases”.[5]

Justice Minz was using the word “torture” – not “physical interrogation methods,” not “moderate physical pressure.” He was explicitly stating that “in very exceptional cases” torture is allowed in Israeli law.

International law, which Israel and its Supreme Court consistently claim to follow, may at times be vague, equivocal or subject to differing interpretations. This is not the case when it comes to torture. To provide just a couple of examples from international treaties to which Israel is party - torture (and other ill-treatment) are prohibited even “in time of public emergency which threatens the life of the nation” according to Articles 4 and 7 of the International Covenant on Civil and Political Rights. The Convention against Torture states, in Article 2, that “no exceptional circumstances whatsoever” may be invoked to justify torture. The expert bodies overseeing these treaties have repeatedly emphasised the absolute, exceptionless nature of this prohibition, not least when addressing Israel.

No wonder then that when requesting an additional hearing, PCATI raised, among other things, Justice Minz’ astonishing dictum.[6] Even the Attorney-General’s Office appeared alarmed. In their response, lawyers for the Office proposed an interpretation of Justice Minz’ statement that directly flies in the face of what Minz had explicitly written: “Justice Minz meant that in very exceptional cases, interrogation methods which do not constitute torture are used,” they wrote, underlining that direct contradiction.[7] In other words, Justice Minz had dug the state into a bit of a hole and the Attorney-General was showing the Supreme Court a way out.

But Chief Justice Ester Hayut decided instead to dig deeper. When ruling on PCATI‘s request, unsurprisingly denying it,[8] Chief Justice Hayut quotes Justice Minz’ words, emphasising “other than in very exceptional cases” as if to say: see? We only allow torture very rarely.

She then went on to state the following:

“… to the extent that Justice Minz’ dictum appears to imply that in very exceptional cases torture is allowed in advance, this is inaccurate.”[9] Chief Justice Hayut emphasised “in advance” – the Hebrew word she used could also be translated into the Latin term a priori.

Chief Justice Hayut is not saying that torture may never be tolerated or allowed, and therefore Justice Minz was wrong, or “inaccurate”, to state that under Israeli law it ever could be. She is clearly not disputing Justice Minz’ view that torture may in certain circumstances be (retroactively) permitted. Instead, Chief Justice Hayut just wants to clarify that such permission may be provided only after the fact. Again – international law prohibits any legal, executive or judicial permission for torture, in whatever circumstances, be it before, during or after the event.

But in Israel, in 2019, as clarified in a decision taken last month by the head of its Supreme Court, the law allows for torture, albeit “only” in very exceptional cases and after the fact (a posteriori). Put negatively: Israeli law prohibits torture, save in very exceptional cases and without a priori permission. Either way, and within those limitations, torture in Israel is legal.

Strangely enough, I believe that this could be a positive development. Torture has been legally allowed in Israel since 1987, resulting in many thousands of Palestinians being tortured by ISA interrogators with impunity. The recent decisions and specific dicta discussed here will not change this. But abandoning the Court’s previous policy of using carefully evasive, circumspect language in favour of explicit endorsement of torture (exceptionally), coupled with the Court’s absurd rulings on what (doesn’t) constitute torture, may finally pull the wool off the eyes of so many in the world who have somehow accepted ISA’s interrogation policies as legitimate, relying on Israel’s widely respected Supreme Court.

They may now accept the fact that Israel is “the only democracy in the Middle East” – in the whole world actually – where torture is not only practised systematically but is actually legal. And they may now reconsider their respect for Israel’s Supreme Court.

[1] HCJ 9018/17 Tbeish et al. v the Attorney-General et al., Ruling of 26 November 2018.

[2] HCJ 5100/94 Public Committee Against Torture in Israel v the Government of Israel, PD 73(4) 817 (1999).

[3] Ibid., paras. 34-8.

[4] HCJ 5572/12 Abu Gosh v the Attorney-General, ruling of 12 December 2017.

[5] Tbeish v the A-G, [Concurring] Opinion of Justice David Minz, para. 3. Another concurring Justice, Yitzhaq Amit, while repeating the mantra about the absolute prohibition on torture, added a statement similar in effect to that of Justice Minz:

“Because of the negative moral and legal perception of torture, the Court rule in the Public Committee case

[i.e. 5100/94 above fn 2 – Y.G.]

that applying physical pressure on interrogees is allowed only in very exceptional case.” Ibid., [Concurring] Opinion of Justice Amit, para. 4.

[6] HCJ/AH 9105/18, Firas Tbeish et al. v the Attorney-General et al, Petition for an Additional Hearing, 24 December 2018, paras. 7, 132-149.

[7] HCJ/AH 9105/18, Firas Tbeish et al. v the Attorney-General et al, Response from Respondents 1-3 to the request for an additional hearing, 17 January 2019, para. 46.

[8] HCJ/AH 9105/18 Firas Tbeish et al. v the Attorney-General et al., Decision of 25 February 2019.

[9] Ibid., para. 14.

Written by Dr Yuval Ginbar, Legal Adviser for Amnesty International (currently on sabbatical). The views expressed are the author's alone.

Interrogation methods officially sanctioned by Israel’s Supreme Court

The following are official descriptions of interrogation methods mentioned here, as provided by Israel’s Supreme Court (ISA) itself In documents presented to defence lawyers and in testimonies by ISA agents in court hearings1. Needless to add – descriptions by detainees provide an even harsher picture. Sleep deprivation: ISA interrogation logs show continuous interrogation with little or no time for rest for 24, 48 and up to 60 hours; “Banana position”: ISA uses the term “tilting of the torso” [hatayat gev], which involves, according to an ISA agent, “the interrogee sitting on a chair, with the backrest to his side, I mean, he sits on a part [of the chair] … and we tilt his sitting position at an angle of 45 degrees more or less for a fixed period.”2 From other documents it appears that this position is enforced for up to 30 minutes each time. “Frog position”: ISA uses the terms “crouch” and “half-crouch”. According to ISA these involve the detainee standing with his back against a wall and his knees bent partly or fully. Beatings: ISA has acknowledged beating, and specifically “slapping” detainees. Rather than breaking Palestinian detainees through ‘shock and awe’, the idea is to pile up pressure and pain gradually, through the accumulation of time and methods. Readers should not therefore ask themselves whether they are fit enough to stay in one of the positions described. Rather, they should imagine how they would feel being totally isolated from the outside world, not – or hardly - having slept for days, kept constantly in one room, interrogated endlessly, threatened, cursed, slapped and being placed time and time again in these positions. And having no idea when all this would end.