International Law in the Domestic Arena: The Case of Torture in Israel

Iowa Law Review

Volumn 86, Issue 1, 2000, Pages 305-337

  Grosso, Catherine M ^a  

^a NONE

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EID: 0034553496     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (279)

1. The cells in the basement of the interrogation center.
2. Mohammed Abu Obeid, From the Road to Athens to a Concrete Dungeon, BIRZEIT HUMAN RIGHTS RECORD: A REPORT ON HUMAN RIGHTS AT BIRZEIT UNIVERSITY 4 (Birzeit University Human Rights Action Project, West Bank, Apr.-Sep. 1996) (describing his interrogation by the Israeli General Security Service (GSS)) available at http://www.birzeit.edu/hrarc/hrr17.html.
3. See generally infra Part III.A (detailing research on Israeli interrogation methods and discussing Israeli methods of interrogation); infra notes 35-39 (providing examples of the reports cited).
4. See infra Part IV.B (discussing nongovernmental and intergovernmental organizations' work against Israel's practice).
5. H.C. 5100/94, Pub. Comm. Against Torture in Israel v. State of Israel; H.C. 4054/95, Ass. for Civil Rights in Israel v. Prime Minister of Israel; H.C. 6536/95, Abu Zaida v. Gen. Sec. Serv.; H.C. 5188/96, al-Ka'ka v. Gen. Sec. Serv.; H.C. 7563/97, Ghaneimat v. Minister of Def.; H.C. 7628/97, Qur'an v. Minister of Def.; H.C. 1043/99, Batat v. Gen. Sec. Serv. ¶ 15 (Sept. 6, 1999) (official translation), available at http://www.court.gov.il/mishpat/html/en/system/ index.html (last visited Aug. 30, 2000) [hereinafter Consolidated Cases], The author has altered the English spelling of some names transliterated from Arabic for consistency.
6. See supra Part IV.C (discussing the September 1999 Israeli High Court decision).
7. Letter from Joanna Oyediran, Researcher, Amnesty International/International Secretariat, to author (Sept. 15, 2000) (on file with author) (reporting that Palestinian detainees held by the Israeli General Security Service had not reported torture or ill-treatment since the decision).
8. NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 137 (2d ed. 1999) [hereinafter TREATMENT OF PRISONERS]. State in this context refers to nation states in the international arena.
9. Id. at 65-67.
10. Id. at 47-61.
11. 34 Kaf-Aleph 1039, 294.
12. G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) at art. 1 [hereinafter CAT].
13. TREATMENT OF PRISONERS, supra note 8, at 7.
14. CAT, supra note 12, at art. 16. For brevity's sake, this Note uses "ill-treatment" to refer to "cruel, inhuman, or degrading treatment or punishment."
15. See TREATMENT OF PRISONERS, supra note 8, at 9-10 (reporting conclusions of documentation efforts by Amnesty International and the United Nations Special Rapporteur on Torture).
16. Id. at 73-74 (finding that no country allows torture under its law).
17. For example, Israel regularly argues that urgent and lethal security threats require intensive interrogation and justify the use of physical and psychological pressure. For an example, see Summary of the Record of the First Part (Public) of the 296th Meeting: Israel, U.N. Committee Against Torture, 18th Sess., 296th mtg. ¶¶ 6-7, 34-37, U.N. Doc. CAT/C/SR.296 (1997) [hereinafter CAT Special Report Record]. A critique of Israel's security justification for torture is beyond the scope of this Note.
18. TREATMENT OF PRISONERS, supra note 8, at 78-79. For example, see Article 2(2) of the Convention Against Torture: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." CAT, supra note 12, at art. 2(2). In keeping with the absolute nature of the ban on torture, this Note does not generally report whether Israel subsequently released a detainee without charge or prosecuted the detainee in the military courts. For a limited discussion of this topic, see HUMAN RIGHTS WATCH/MIDDLE EAST, TORTURE AND ILL- TREATMENT: ISRAEL'S INTERROGATION OF PALESTINIANS FROM THE OCCUPIED TERRITORIES 1-3 (1994) [hereinafter TORTURE AND ILL-TREATMENT] .
19. TREATMENT OF PRISONERS, supra note 8, at 78-79. For example, see Article 2(2) of the Convention Against Torture: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." CAT, supra note 12, at art. 2(2). In keeping with the absolute nature of the ban on torture, this Note does not generally report whether Israel subsequently released a detainee without charge or prosecuted the detainee in the military courts. For a limited discussion of this topic, see HUMAN RIGHTS WATCH/MIDDLE EAST, TORTURE AND ILL-TREATMENT: ISRAEL'S INTERROGATION OF PALESTINIANS FROM THE OCCUPIED TERRITORIES 1-3 (1994) [hereinafter TORTURE AND ILL-TREATMENT] .
20. See TREATMENT OF PRISONERS, supra note 8, at 96, 98 (remarking that sharp distinctions among various prohibited forms of treatment may not be necessary and that the reports of the Special Rapporteur on Torture de-emphasize the distinction between torture and ill-treatment).
21. Id. at 77-100.
22. "No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment." G.A. Res. 217A(III), U.N. GAOR, 3rd Sess., at 71, U.N. Doc. A/810 (1948) at art. 5; see also TREATMENT OF PRISONERS, supra note 8, at 75 (stating that the broad language of the Universal Declaration of Human Rights created an opening for debate on the distinction between torture and ill-treatment).
23. CAT, supra note 12, at art. 3.
24. 25 Eur. Ct. H.R. (ser. A) (1976). This Note addresses Ireland v. United Kingdom at some length here because Israel relied heavily on it to explain why its interrogation practices did not fall within the universal ban on torture or ill-treatment. See infra Part IV.A (discussing Israel's position).
25. 25 Eur. Ct. H.R. (ser. A), ¶ 167.
26. Id.
27. Id.
28. See TREATMENT OF PRISONERS, supra note 8, at 92-93; see also TORTURE AND ILL- TREATMENT, supra note 18, at 81 (reporting that a variety of experts criticized the European Court of Human Rights ruling).
29. See TREATMENT OF PRISONERS, supra note 8, at 92-93; see also TORTURE AND ILL-TREATMENT, supra note 18, at 81 (reporting that a variety of experts criticized the European Court of Human Rights ruling).
30. TREATMENT OF PRISONERS, supra note 8, at 94. Professor Rodley presents a detailed review of the European Court of Human Rights case law on the degree of suffering required to find torture. Id. at 85-100.
31. Id. at 99.
32. Id. at 96, 98 (discussing the practice of the Human Rights Committee and the Special Rapporteur on Torture of minimizing the distinction between torture and ill-treatment when dealing with practices that fall clearly within prohibited behaviors).
33. For a discussion of the universality of the ban on torture and ill-treatment and the assertion that no country asserts a right to torture or ill-treat prisoners, see Filartiga v. Pena-Irala, 630 F.2d 876, 883-85 (2d Cir. 1980).
34. See infra Part IV.B (discussing past and ongoing human rights monitoring activities by the international human rights community).
35. Letter from Joanna Oyediran, Researcher, Amnesty International/International Secretariat, to author (Sept. 5, 2000) (on file with author).
36. For an abbreviated list of such reports, see TORTURE AND ILL-TREATMENT, supra note 18, at 66-72 (presenting a survey of organizations monitoring Israeli interrogation methods); see also infra notes 35-39 (citing sources documenting methods of interrogation).
37. Palestinian human rights organizations were the first to document systematically Israeli torture of Palestinian political detainees. For an example of some of the first documentation, see LAW IN THE SERVICE OF MAN (AL-HAQ), TORTURE AND INTIMIDATION IN THE WEST BANK: THE CASE OF AL-FARA'A PRISON (1985). Organizations continue to monitor GSS treatment of Palestinian detainees. See Birzeit University Human Rights Action Project, at http://www.birzeit.edu/hrap (last visited Aug. 30, 2000) (publishing current action alerts and press releases on GSS methods of interrogation of Palestinian prisoners and archiving past newsletters including articles on torture and ill-treatment); Law: The Palestinian Society for the Protection of Human Rights and the Environment, at http://www.lawsociety.org (last visited Aug. 30, 2000) (publishing periodic reports on GSS methods of interrogation).
38. Palestinian human rights organizations were the first to document systematically Israeli torture of Palestinian political detainees. For an example of some of the first documentation, see LAW IN THE SERVICE OF MAN (AL-HAQ), TORTURE AND INTIMIDATION IN THE WEST BANK: THE CASE OF AL-FARA'A PRISON (1985). Organizations continue to monitor GSS treatment of Palestinian detainees. See Birzeit University Human Rights Action Project, at http://www.birzeit.edu/hrap (last visited Aug. 30, 2000) (publishing current action alerts and press releases on GSS methods of interrogation of Palestinian prisoners and archiving past newsletters including articles on torture and ill-treatment); Law: The Palestinian Society for the Protection of Human Rights and the Environment, at http://www.lawsociety.org (last visited Aug. 30, 2000) (publishing periodic reports on GSS methods of interrogation).
39. For examples of the conclusions of some Israeli human rights organizations, see the website of B'Tselem: The Israeli Information Center for Human Rights in the Occupied Territories, at http://www.btselem.org (last visited Aug. 30, 2000) (publishing periodic reports and press releases on GSS torture and ill-treatment of Palestinian detainees), or write HaMoked (4 Abu Obeidah Street, Jerusalem) or the Public Committee Against Torture in Israel (P.O. Box 8588, Jerusalem). For examples of publications by Israeli nongovernmental human rights organizations, see YUVAL GINBAR, ROUTINE TORTURE: INTERROGATION METHODS OF THE GENERAL SECURITY SERVICE (B'Tselem: The Israeli Information Center for Human Rights in the Occupied Territories, 1998) (presenting the seventh extensive B'Tselem report describing GSS interrogation methods as torture and ill-treatment); TORTURE: HUMAN RIGHTS, MEDICAL ETHICS, AND THE CASE OF ISRAEL 75 (Neve Gordon & Ruchama Marton eds., 1995) [hereinafter MEDICAL ETHICS] (reporting on a conference on the role of physicians in GSS interrogation and torture sponsored by the Association of Israeli-Palestinian Physicians for Human Rights and the Public Committee Against Torture in Israel).
40. For examples of the conclusions of some Israeli human rights organizations, see the website of B'Tselem: The Israeli Information Center for Human Rights in the Occupied Territories, at http://www.btselem.org (last visited Aug. 30, 2000) (publishing periodic reports and press releases on GSS torture and ill-treatment of Palestinian detainees), or write HaMoked (4 Abu Obeidah Street, Jerusalem) or the Public Committee Against Torture in Israel (P.O. Box 8588, Jerusalem). For examples of publications by Israeli nongovernmental human rights organizations, see YUVAL GINBAR, ROUTINE TORTURE: INTERROGATION METHODS OF THE GENERAL SECURITY SERVICE (B'Tselem: The Israeli Information Center for Human Rights in the Occupied Territories, 1998) (presenting the seventh extensive B'Tselem report describing GSS interrogation methods as torture and ill-treatment); TORTURE: HUMAN RIGHTS, MEDICAL ETHICS, AND THE CASE OF ISRAEL 75 (Neve Gordon & Ruchama Marton eds., 1995) [hereinafter MEDICAL ETHICS] (reporting on a conference on the role of physicians in GSS interrogation and torture sponsored by the Association of Israeli-Palestinian Physicians for Human Rights and the Public Committee Against Torture in Israel).
41. For examples of the conclusions of some Israeli human rights organizations, see the website of B'Tselem: The Israeli Information Center for Human Rights in the Occupied Territories, at http://www.btselem.org (last visited Aug. 30, 2000) (publishing periodic reports and press releases on GSS torture and ill-treatment of Palestinian detainees), or write HaMoked (4 Abu Obeidah Street, Jerusalem) or the Public Committee Against Torture in Israel (P.O. Box 8588, Jerusalem). For examples of publications by Israeli nongovernmental human rights organizations, see YUVAL GINBAR, ROUTINE TORTURE: INTERROGATION METHODS OF THE GENERAL SECURITY SERVICE (B'Tselem: The Israeli Information Center for Human Rights in the Occupied Territories, 1998) (presenting the seventh extensive B'Tselem report describing GSS interrogation methods as torture and ill-treatment); TORTURE: HUMAN RIGHTS, MEDICAL ETHICS, AND THE CASE OF ISRAEL 75 (Neve Gordon & Ruchama Marton eds., 1995) [hereinafter MEDICAL ETHICS] (reporting on a conference on the role of physicians in GSS interrogation and torture sponsored by the Association of Israeli-Palestinian Physicians for Human Rights and the Public Committee Against Torture in Israel).
42. For examples of the conclusions of some international human rights organizations, see Israel (State of) and the Occupied Territories, 1999 ANNUAL REPORT, available at http://www.amnesty.org/ailib/aireport/ar99/mde15.htm (last visited Aug. 30, 2000) ("Torture and ill-treatment continued to be officially sanctioned and used systematically during interrogation of security detainees."); HUMAN RIGHTS WATCH, 1999 WORLD REPORT, at 364 (1998) (reporting incidents of continued widespread and systematic torture and ill-treatment by the GSS between December 1997 and November 1998).
43. For examples of the conclusions of some international human rights organizations, see Israel (State of) and the Occupied Territories, 1999 ANNUAL REPORT, available at http://www.amnesty.org/ailib/aireport/ar99/mde15.htm (last visited Aug. 30, 2000) ("Torture and ill-treatment continued to be officially sanctioned and used systematically during interrogation of security detainees."); HUMAN RIGHTS WATCH, 1999 WORLD REPORT, at 364 (1998) (reporting incidents of continued widespread and systematic torture and ill-treatment by the GSS between December 1997 and November 1998).
44. For example see BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, ISRAEL AND THE OCCUPIED TERRITORIES, COUNTRY REPORT ON HUMAN RIGHTS PRACTICES FOR 1998, at 3 (1999), available at http://www.state.gov/www/global/human_rights/ 1998_hrp_report/israel.htm (last visited Aug. 30, 2000) ("Israeli security forces abuse, and in some cases torture, Palestinians suspected of security offenses.").
45. For examples of the conclusions of some United Nations bodies see Report of the United Nations Special Rapporteur on Torture, Mr. Nigel S. Rodley, U.N. Commission on Human Rights, 53rd Sess., Provisional Agenda Item 8(a), U.N. Doc. E/CN.4/1997 (1997) [hereinafter Social Rapporteur, 53rd Sess., 1997] (stating that certain forms of interrogation that "can only be described as torture" appeared so consistently and had not been denied that the Special Rapporteur assumed them to be sanctioned); Concluding Observations of the Committee Against Torture: Israel, U.N. Committee Against Torture, 18th Sess., ¶ 257, U.N. Doc. A/52/44, paras. 253-260 (1997) [hereinafter CAT Concluding Observations, 1997] (concluding that the methods of interrogation that Israel did not deny applying systematically to Palestinian interrogatees constituted torture and violated the Convention Against Torture).
46. Not only the GSS interrogates Palestinian detainees. The Israeli military also interrogates them. TORTURE AND ILL-TREATMENT, supra note 18, at 1. This Note focuses on GSS interrogation.
47. While the GSS has used torture against non-Palestinians, the overwhelming majority of persons subject to torture are Palestinian. GINBAR, supra note 36, at 7.
48. The Committee Against Torture is the oversight body for the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. CAT, supra note 12.
49. CAT Concluding Observations, 1997, supra note 39, ¶ 257.
50. LEGITIMIZING TORTURE: THE ISRAELI HIGH COURT OF JUSTICE RULINGS IN THE BILBEISI, HAMDAN, AND MUBARAK CASES - AN ANNOTATED SOURCEBOOK 5 (B'Tselem: The Israeli Information Center for Human Rights in the Occupied Territories eds., 1997) (citing HA'ARETZ, Jan. 15, 1995) [hereinafter LEGITIMIZING TORTURE].
51. GINBAR, supra note 36, at 8, 36.
52. Id.
53. Id.
54. TORTURE AND ILL-TREATMENT, supra note 18, at 110; GINBAR, supra note 36, at 13-36.
55. See GINBAR, supra note 36, at 55 (noting that GSS interrogation became increasingly systematic beginning in the late 1980s).
56. For an example of a well-documented case where the GSS interrogated a detainee for five weeks, see the description of the case of Omar Ghaneimat. GINBAR, supra note 36, at 39-67.
57. See AMNESTY INT'L, INDEX NO. MDE 15/03/94, ISRAEL AND THE OCCUPIED TERRITORIES: TORTURE AND ILL-TREATMENT OF POLITICAL DETAINEES 6 (1994) [hereinafter AMNESTY 1994]; GINBAR, supra note 36, at 34.
58. See GINBAR, supra note 36, at 34 (listing "slapping, punching, and kicking" among various interrogation techniques).
59. Id.
60. For an example, see the case of Omar Ghaneimat in GINBAR, supra note 36, at 45. Ghaneimat reported, "They would put handcuffs on my forearm, about fifteen centimeters from the palm of my hand, my hands behind my back. The interrogator would fasten them so tight that the blood would not flow." Id.
61. See id. at 13 (noting that security regulations allow Israeli authorities to refuse detainees contact with their attorneys for up to ninety days). For an example of this practice, see the affidavit of Advocate Elia Theodory (Jerusalem, Dec. 25, 1997), submitted to the Israeli High Court with H.C. 7628/97, Qur'an v. Minister of Def., reprinted in The Case Against Torture in Israel: A Compilation of Petitions, Briefs, and Other Documents Submitted to the Israeli High Court of Justice (Allegra Pacheco ed. & trans. May 1999) (unpublished manuscript, on file with author) (reporting that the General Security Service had prevented Advocate Theodory from seeing his client Fuad Awad Qur'an for eighteen days).
62. See TORTURE AND ILL-TREATMENT, supra note 18, at 164 (reporting that interrogators use position abuse, deafening music and loud noise, and monitoring and harassment by prison guards to keep detainees from sleeping).
63. See TERESA THORNHILL, MAKING WOMEN TALK: THE INTERROGATION OF PALESTINIAN WOMEN DETAINEES 28 (1992) (reporting on the use of sexual threats in the interrogation of women); see also GINBAR, supra note 36, at 25 (reporting that threats employed by interrogators are often of a sexual nature).
64. See CAT Concluding Observations, 1997, supra note 39, ¶ 257 (noting that in the "standard case" methods of interrogation are used in combination); GINBAR, supra note 36, at 15, 34-35, 38 (describing various combinations of interrogation methods).
65. CAT Concluding Observations, 1997, supra note 39, ¶ 257. The Committee issued this ruling after the Israeli High Court refused to enjoin the GSS from using these methods of interrogation against Khader Mubarak. Id. The list of prohibited interrogation methods is based on Mr. Mubarak's case, rather than on a full survey of GSS interrogation methods. Id. See also infra text accompanying notes 152-55 (discussing Mr. Mubarak's case).
66. TORTURE AND ILL-TREATMENT, supra note 18, at 111-54.
67. See id. at 58-59 (quoting remarks delivered at a conference sponsored by the Association of Israeli-Palestinian Physicians for Human Rights and the Public Committee Against Torture in Israel on June 14, 1993).
68. Consolidated Cases, supra note 5, ¶ 9.
69. GINBAR, supra note 36, at 32 (quoting the affidavit of N.S. upon his release from interrogation in October 1997). Israeli forces detained N.S. in October 1997; the GSS interrogated him in Jerusalem for ten days and released him on the thirteenth day. Id. at 12.
70. See Consolidated Cases, supra note 5, ¶ 9 ("All agree that in one particular case [Harizat's] the suspect in question expired after being shaken."); see. also H.C. 4054/95, Ass. for Civil Rights in Israel v. Prime Minister of Israel ¶ 1 (Allegra Pacheco trans.) (translation on file with author) (appealing to the court to halt the use of shaking, partially as a result of Harizat's death).
71. H.C. 4054/95, Ass. for Civil Rights in Israel v. Prime Minister of Israel ¶ 1 (Allegra Pacheco trans.) (translation on file with author).
72. AMNESTY INT'L, INDEX NO. MDE 15/23/95, ISRAEL AND THE OCCUPIED TERRITORIES: DEATH BY SHAKING - THE CASE OF 'ABD AL-SAMAD HARIZAT (1995) [hereinafter DEATH BY SHAKING].
73. LEGITIMIZING TORTURE, supra note 44, at 5 (citing an interview on Kol Israel, Israel's state-owned radio station, on July 29, 1995).
74. See DEATH BY SHAKING, supra note 66, at 6-7 (quoting a U.N. report's concern over the large number of cases of ill-treatment).
75. TORTURE AND ILL-TREATMENT, supra note 18, at 111.
76. GINBAR, supra note 36, at 15-16.
77. H.C. 7563/97, Ghaneimat v. Minister of Def. (Allegra Pacheco trans.) (translation on file with author) (quoting the affidavit of Salah Abu Ramila ¶ 3, Petitioners' Principal Arguments Presented to an Expanded Panel at Attachment 2); H.C. 7628/97, Qur'an v. Minister of Def. (Allegra Pacheco trans.) (translation on file with author).
78. H.C. 7563/97, Ghaneimat v. Minister of Def. (Allegra Pacheco trans.) (translation on file with author) (quoting the affidavit of Salah Abu Ramila ¶ 3, Petitioner's Principal Arguments Presented to an Expanded Panel at Attachment 2).
79. GINBAR, supra note 36, at 15.
80. TORTURE AND ILL-TREATMENT, supra note 18, at 164.
81. GINBAR, supra note 36, at 28-31.
82. Id. at 26-28, 35-36.
83. See TORTURE AND ILL-TREATMENT, supra note 18, at 112 ("GSS agents employ the euphemism 'waiting' when referring to the combination of hooding, sleep deprivation, and abusive body positioning."); see also GINBAR, supra note 36, at 24 (presenting a GSS document tracking the treatment of a Palestinian prisoner and showing the "waiting" periods).
84. See TORTURE: AND ILL-TREATMENT, supra note 18, at 156-63 (describing hoods smelling of saliva, gasoline, and excrement).
85. Id. at 160.
86. Id. at 175; see also AMNESTY 1994, supra note 51, at 5 ("Virtually every security detainee brought into custody is hooded with dirty and sometimes wet sacks, which disorient and hamper respiration.").
87. H.C. 7563/97, Ghaneimat v. Minister of Def., translated in GINBAR, supra note 33, ¶ 3 (quoting the affidavit of Salah Abu Ramila (Jan. 6, 1998)). This affidavit was included as attachment 2 to petitioners' principal arguments presented to the High Court. See also H.C. 7628/97, Qur'an v. Minister of Def., (Allegra Pacheco trans.) (translation on file with author).
88. See TORTURE AND ILL-TREATMENT, supra note 18, at 164 (reporting that interrogators use position abuse, deafening music and loud noise, and monitoring and harassment by prison guards to keep interrogatees from sleeping).
89. GINBAR, supra note 36, at 22-23.
90. See Khalid Yassin Farraj, BIRZEIT HUMAN RIGHTS RECORD: A REPORT ON HUMAN RIGHTS AT BIRZEIT UNIVERSITY (Birzeit University Human Rights Action Project, West Bank), Apr.-July 1995, at 2, available at http://www.birzeit.edu/hrarc/hrr15.html (reporting that Khalid Farraj had been interrogated twenty-four hours each day, seven days a week).
91. GINBAR, supra note 36, at 22-23.
92. Id. at 25-26. 'Abd al-Samad Harizat died in interrogation. See supra note 64 and accompanying text (discussing Harizat's death).
93. GINBAR, supra note 36, at 15.
94. See TORTURE AND ILL-TREATMENT, supra note 18, at 152-54.
95. See id. at 177-81 (discussing specific instances of purposeful deprivation of access to toilets and bathing facilities); see also GINBAR, supra note 36, at 14 (publishing testimonies of detainees concerning access to sanitary facilities).
96. TORTURE AND ILL-TREATMENT, supra note 18, at 177-81.
97. CAT Concluding Observations, 1997, supra note 39, ¶¶ 257, 260(a) (finding that the forms of interrogation discussed in Part III A of this Note constitute torture).
98. See supra notes 35-39 (listing findings of torture methods reportedly used on Palestinians).
99. See supra notes 35-39 (referencing consistent research findings by different types of researchers).
100. See H.C. 3124/96, Mubarak v. Gen. Sec. Serv., translated in LEGITIMIZING TORTURE, supra note 44, at 20-21 (presenting specific examples of torture in the interrogation of Mr. Mubarak).
101. Oppression by a Public Servant § 277, Penal Code of Israel, 5737-1977 (2d ed. 1994) at 69.
102. See infra text accompanying notes 102-05 (listing the conventions Israel has signed and ratified).
103. Oppression by a Public Servant § 277, Penal Code of Israel, 5737-1977 (2d ed. 1994) at 69.
104. F.H. 3081/91, Kozli v. State of Israel, 35(4) P.D. 441, 446 (1991), cited in Consolidated Cases, supra note 5, ¶ 23.
105. C.A. 4463/94, Golan v. Prison Sec. Serv., 50(4) P.D. 136 (1994), cited in Consolidated Cases, supra note 5, ¶ 23.
106. See Ruth Lapidoth, International Law Within the Israel Legal System, 24 ISR. L. REV. 451, 452 (1990) (explaining the automatic incorporation of customary international law into the municipal law of Israel).
107. See supra Part II (discussing prohibition of torture and ill-treatment of detainees).
108. Eyal Benvenisti, Influence of International Human Rights Law on the Israeli Legal System: Present and Future, 28 ISR. L. REV. 136, 136 (1994). Benvenisti notes that, in addition to the three conventions discussed in the text, Israel ratified the International Covenant on Economic and Social Rights and the International Convention on the Elimination of Discrimination against Women during the summer of 1991. Id.
109. 34 Kaf-Aleph 1039, 294.
110. 31 Kaf-Aleph 1040, 169.
111. International Covenant on Civil and Political Rights, art. 7, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1967) (opened for signature Dec. 19, 1966); Convention on the Rights of the Child, art. 37, G.A. Res. 44/25, U.N. GAOR, 44th Sess. Annex, Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989) (opened for signature Nov. 20, 1989).
112. International Covenant on Civil and Political Rights, art. 7, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1967) (opened for signature Dec. 19, 1966); Convention on the Rights of the Child, art. 37, G.A. Res. 44/25, U.N. GAOR, 44th Sess. Annex, Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989) (opened for signature Nov. 20, 1989).
113. Benvenisti, supra note 102, at 138; see also Lapidoth, supra note 100, at 458 (discussing the need for treaties to be incorporated by statute before they have legal effect).
114. For a discussion of Israel's reports to the Committee Against Torture, see infra Part IV.A. Israel's reports to the Human Rights Committee, the oversight body for the Convention on Civil and Political Rights, largely repeat its reports to the Committee Against Torture. For the sake of brevity, this Note focuses solely on reports to the Committee Against Torture. The United Nations High Commissioner for Human Rights maintains a database of all reports at its Treaty Bodies Database at http://www.unhchr.ch/tbs/doc.nsf (last visited Aug. 30, 2000).
115. See Report of Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, First Part, ¶¶ 1.6-1.9 (Jerusalem, Oct. 1987), reprinted in 23 ISR. L. REV. 146 (1989) [hereinafter Landau Commission Report] (noting that these killings and subsequent investigations during which GSS interrogators lied to official government investigators motivated the establishment of the commission); see also Felicia Langer, The History of the Legal Struggle Against Torture in Israel, in MEDICAL ETHICS, supra note 36, at 75, 77 (presenting the details of the case from the perspective of the attorney for the families of the executed Palestinians).
116. See Report of Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, First Part, ¶¶ 1.6-1.9 (Jerusalem, Oct. 1987), reprinted in 23 ISR. L. REV. 146 (1989) [hereinafter Landau Commission Report] (noting that these killings and subsequent investigations during which GSS interrogators lied to official government investigators motivated the establishment of the commission); see also Felicia Langer, The History of the Legal Struggle Against Torture in Israel, in MEDICAL ETHICS, supra note 36, at 75, 77 (presenting the details of the case from the perspective of the attorney for the families of the executed Palestinians).
117. Landau Commission Report, supra note 108, ¶ 1.1.
118. Id. ¶ 1.6.
119. Id. ¶ 4.7.
120. Id.
121. Id. ¶¶ 2.9-2.10. The Landau Commission report discusses the threat posed by terrorist activity throughout its report and presents its recommendations in the context of necessity. Id.
122. See Mordechai Kremnitzer, The Landau Commission Report: Was the Security Service Subordinated to the Law, or the Law to the "Needs" of the Security Service?, 23 ISR. L. REV. 216, 217 n.1 (1989).
123. Landau Commission Report, supra note 108, ¶ 2.9.
124. Id. ¶ 3.21.
125. Id. ¶ 3.24.
126. Id. ¶ 3.22. For a discussion of the European Court of Human Rights decision in this case, see supra Part II.
127. Landau Commission Report, supra note 108, ¶ 3.22.
128. The Landau Commission kept the section of the report detailing authorized interrogation methods secret. It remained secret following the September 1999 High Court decision. See supra text accompanying note 114.
129. Landau Commission Report, supra note 108, ¶ 3.16.
130. See supra Part III A (discussing the methods of interrogation used).
131. The Israel Law Review published a collection of papers analyzing the report in 1989. 23 ISR. L. REV. (1989). For a summary of criticisms of the report, see AMNESTY 1994, supra note 51, at 11-13.
132. The Israel Law Review published a collection of papers analyzing the report in 1989. 23 ISR. L. REV. (1989). For a summary of criticisms of the report, see AMNESTY 1994, supra note 51, at 11-13.
133. The Israeli Supreme Court sits as the High Court ofJustice, a court of first instance, to hear administrative and constitutional cases. Because Israel does not have a constitution and has only begun to adopt statutes protecting human and civil rights, the High Court of Justice has played a central role in developing and protecting human and civil rights for Jewish citizens of Israel. Stephen Goldstein, The Protection of Human Rights by Judges: The Israeli Experience, in JUDICIAL PROTECTION OF HUMAN RIGHTS: MYTH OR REALITY? 55, 57-58 (Mark Gibney & Stanislaw Frankoski eds., 1999); see also Itzhak Zamir, Administrative Law, in PUBLIC LAW IN ISRAEL 18, 38-40 (Itzhak Zamir & Allen Zysblat eds., 1996) (discussing the role of the High Court of Justice as the court of final appeal).
134. The Israeli Supreme Court sits as the High Court ofJustice, a court of first instance, to hear administrative and constitutional cases. Because Israel does not have a constitution and has only begun to adopt statutes protecting human and civil rights, the High Court of Justice has played a central role in developing and protecting human and civil rights for Jewish citizens of Israel. Stephen Goldstein, The Protection of Human Rights by Judges: The Israeli Experience, in JUDICIAL PROTECTION OF HUMAN RIGHTS: MYTH OR REALITY? 55, 57-58 (Mark Gibney & Stanislaw Frankoski eds., 1999); see also Itzhak Zamir, Administrative Law, in PUBLIC LAW IN ISRAEL 18, 38-40 (Itzhak Zamir & Allen Zysblat eds., 1996) (discussing the role of the High Court of Justice as the court of final appeal).
135. See Eyal Benvenisti, Judicial Review of Administrative Action in the Territories Occupied in 1967, in PUBLIC LAW IN ISRAEL 371, 371-72 (Itzhak Zamir & Allen Zysblat eds., 1996) (reporting that Palestinian residents of the occupied West Bank and Gaza Strip can seek review from the High Court of Justice).
136. See Langer, supra note 108, at 75-76 (describing her own legal interventions beginning in the late 1960s).
137. The High Court describes this process in its opinion. See Consolidated Cases, supra note 5, ¶ 17 (discussing this process and the Court's resolutions in several example cases). To read three of these rulings, see LEGITIMIZING TORTURE, supra note 44, at 7-10, 14-16, 20-21.
138. The High Court describes this process in its opinion. See Consolidated Cases, supra note 5, ¶ 17 (discussing this process and the Court's resolutions in several example cases). To read three of these rulings, see LEGITIMIZING TORTURE, supra note 44, at 7-10, 14-16, 20-21.
139. LEGITIMIZING TORTURE, supra note 44, at 4; see also CAT Special Report Record, supra note 17, ¶ 23 (stating that the court received dozens of petitions from Palestinian detainees between 1995 and 1997).
140. LEGITIMIZING TORTURE, supra note 44, at 4; see also CAT Special Report Record, supra note 17, ¶ 23 (stating that the court received dozens of petitions from Palestinian detainees between 1995 and 1997).
141. See, for example, H.C./V.R. 336/96, Bilbeisi v. Gen. Sec. Serv., translated in LEGITIMIZING TORTURE, supra note 44, at 7, ¶ 4(d) ("Our decision concerns only the interim injunction issued in this case, and it does not constitute a final statement of our position regarding the question of [why the GSS tortures the Appellant], which we have refrained from discussing today. . . .").
142. For an example of this practice, see H.C. 3282/97, Ghaneimat v. Minister of Def., translated in GINBAR, supra note 36, at 53 ("As for the future, we noted the statement of [counsel for the state] that at this stage of the interrogation, no further physical means will be used against the Petitioner, and that there is no intention to use physical means against him in the future. . . . The petition is denied."). See also AMNESTY INT'L, INDEX NO. MDE 02/04/98, ISRAEL/OCCUPIED TERRITORIES AND THE PALESTINIAN AUTHORITY: FIVE YEARS AFTER THE OSLO AGREEMENT - HUMAN RIGHTS SACRIFICED FOR "SECURITY" 13 (1998) [hereinafter AMNESTY 1998], available at http://www.amnesty.org/ailib/aipub/1998/MDE/50200498.htm (last visited Aug. 30, 2000) (discussing the GSS practice of agreeing to suspend interrogation).
143. For an example of this practice, see H.C. 3282/97, Ghaneimat v. Minister of Def., translated in GINBAR, supra note 36, at 53 ("As for the future, we noted the statement of [counsel for the state] that at this stage of the interrogation, no further physical means will be used against the Petitioner, and that there is no intention to use physical means against him in the future. . . . The petition is denied."). See also AMNESTY INT'L, INDEX NO. MDE 02/04/98, ISRAEL/OCCUPIED TERRITORIES AND THE PALESTINIAN AUTHORITY: FIVE YEARS AFTER THE OSLO AGREEMENT - HUMAN RIGHTS SACRIFICED FOR "SECURITY" 13 (1998) [hereinafter AMNESTY 1998], available at http://www.amnesty.org/ailib/aipub/1998/MDE/50200498.htm (last visited Aug. 30, 2000) (discussing the GSS practice of agreeing to suspend interrogation).
144. For an example of this practice see H.C. 3282/97, Ghaneimat v. Minister of Def., translated in GINBAR, supra note 36, at 53.
145. See AMNESTY 1998, supra note 130, at 13 (discussing the success of petitions against sleep deprivation since 1994).
146. See LEGITIMIZING TORTURE, supra note 44, at 4 (noting that when the GSS appealed an injunction, the High Court of Justice consistently canceled it).
147. H.C./V.R. 336/96, Bilbeisi v. Gen. Sec. Serv., translated in LEGITIMIZING TORTURE, supra note 44, at 7.
148. See LEGITIMIZING TORTURE, supra note 44, at 11 (noting that the state either acknowledged using or refrained from denying the use of these methods of interrogation on Mr. Bilbeisi).
149. See H.C./V.R. 336/96, Bilbeisi v. Gen. Sec. Serv., ¶ 1 (citing H.C. 7964/95, Bilbeisi v. Gen. Sec. Serv.), translated in LEGITIMIZING TORTURE, supra note 44, at 7-8. Amnesty International reports that the GSS violated the injunction and continued to subject Mr. Bilbeisi to torture including position abuse, sleep deprivation, and violent shaking. AMNESTY 1998, supra note 130.
150. See H.C./V.R. 336/96, Bilbeisi v. Gen. Sec. Serv., ¶ 1 (citing H.C. 7964/95, Bilbeisi v. Gen. Sec. Serv.), translated in LEGITIMIZING TORTURE, supra note 44, at 7-8. Amnesty International reports that the GSS violated the injunction and continued to subject Mr. Bilbeisi to torture including position abuse, sleep deprivation, and violent shaking. AMNESTY 1998, supra note 130.
151. H.C./V.R. 336/96, Bilbeisi v. Gen. Sec. Serv., ¶ 2, translated in LEGITIMIZING TORTURE, supra note 44, at 8-9.
152. Id. ¶ 2.
153. Id. ¶ 3.
154. Id. ¶ 4.
155. Id. ¶ 4(c).
156. LEGITIMIZING TORTURE, supra note 44, at 12.
157. H.C. 8049/96, Hamdan v. Gen. Sec. Serv., ¶ 1, translated in LEGITIMIZING TORTURE, supra note 44, at 14.
158. See LEGITIMIZING TORTURE, supra note 44, at 17.
159. Id.
160. See H.C. 8049/96, Hamdan v. Gen. Sec. Serv., ¶ 1, translated in LEGITIMIZING TORTURE, supra note 44, at 14.
161. Id.
162. Id. ¶ 4.
163. Id. ¶ 5.
164. Id. ¶ 6. The subsequent interrogation of Mr. Hamdan did not reveal vital security information. Mr. Hamdan was never charged with any criminal offense. Israeli authorities placed him under administrative detention (detention without charge) and released him ten months later. GINBAR, supra note 36, at 46-47.
165. LEGITIMIZING TORTURE, supra note 44, at 18.
166. H.C. 3124/96, Mubarak v. Gen. Sec. Serv., translated in LEGITIMIZING TORTURE, supra note 44, at 20.
167. See id. at 20-21.
168. See id.
169. Id. at 21.
170. For one example of this concern, see Press Release, United Nations, Statement by Chairman of Committee Against Torture on Israeli Supreme Court Decision, U.N. Doc. HR/CAT/96/28 (Nov. 19, 1996) (on file with author) (stating that the Committee Against Torture argued that the Israeli court decision concerning the interrogation of Mr. Hamdan contradicted committee conclusions calling for the elimination of physical pressure in interrogation and reminding Israel that no circumstances justify torture).
171. See INTIFADA: PALESTINE AT THE CROSSROADS 229-87 (Jamal R. Nassar & Roger Heacock eds., 1990) (explaining the regional reactions to the intifada); INTIFADA: THE PALESTINIAN UPRISING AGAINST ISRAELI OCCUPATION 182-304 (Zachary Lockman & Joel Beinin eds., 1989) (discussing Israeli and U.S. perspectives on the intifada). At the time this Note went to press, Palestinians were engaged in a second uprising which they also called an intifada, a throwing off.
172. See INTIFADA: PALESTINE AT THE CROSSROADS 229-87 (Jamal R. Nassar & Roger Heacock eds., 1990) (explaining the regional reactions to the intifada); INTIFADA: THE PALESTINIAN UPRISING AGAINST ISRAELI OCCUPATION 182-304 (Zachary Lockman & Joel Beinin eds., 1989) (discussing Israeli and U.S. perspectives on the intifada). At the time this Note went to press, Palestinians were engaged in a second uprising which they also called an intifada, a throwing off.
173. Numerous books have been written about the nature and effect of the Palestinian intifada. See, e.g., GEOFFREY ARONSON, ISRAEL, PALESTINIANS, AND THE INTIFADA: CREATING FACTS ON THE WEST BANK (2d ed. 1990) (detailing the impact of the intifada); INTIFADA: THE PALESTINIAN UPRISING, supra note 157 (same); INTIFADA: PALESTINE AT THE CROSSROADS, supra note 157 (same).
174. Numerous books have been written about the nature and effect of the Palestinian intifada. See, e.g., GEOFFREY ARONSON, ISRAEL, PALESTINIANS, AND THE INTIFADA: CREATING FACTS ON THE WEST BANK (2d ed. 1990) (detailing the impact of the intifada); INTIFADA: THE PALESTINIAN UPRISING, supra note 157 (same); INTIFADA: PALESTINE AT THE CROSSROADS, supra note 157 (same).
175. Numerous books have been written about the nature and effect of the Palestinian intifada. See, e.g., GEOFFREY ARONSON, ISRAEL, PALESTINIANS, AND THE INTIFADA: CREATING FACTS ON THE WEST BANK (2d ed. 1990) (detailing the impact of the intifada); INTIFADA: THE PALESTINIAN UPRISING, supra note 157 (same); INTIFADA: PALESTINE AT THE CROSSROADS, supra note 157 (same).
176. See MINISTRY OF FOREIGN AFFAIRS, ISRAEL, SPOTLIGHT ON ISRAEL: HUMAN RIGHTS AND THE RULE OF LAW (June 1999), available at http://www.mfa.gov.il/mfa/go.asp?MFAH0ff10 (last visited Aug. 30, 2000) (discussing Israel's commitment to guarantee equal social and political rights to all its citizens); see also TAMAR GAULAN, STATE OF ISRAEL MINISTRY OF JUSTICE, ISRAEL'S INTERROGATION POLICIES AND PRACTICES (December 1996), available at http://www.mfa.gov.il/ mfa/go.asp?MFAH0dgi0 (last visited Aug. 30, 2000) ("The State of Israel prides itself on having an open society with a democratic legal system which is subject to public scrutiny and which respects human values.").
177. See MINISTRY OF FOREIGN AFFAIRS, ISRAEL, SPOTLIGHT ON ISRAEL: HUMAN RIGHTS AND THE RULE OF LAW (June 1999), available at http://www.mfa.gov.il/mfa/go.asp?MFAH0ff10 (last visited Aug. 30, 2000) (discussing Israel's commitment to guarantee equal social and political rights to all its citizens); see also TAMAR GAULAN, STATE OF ISRAEL MINISTRY OF JUSTICE, ISRAEL'S INTERROGATION POLICIES AND PRACTICES (December 1996), available at http://www.mfa.gov.il/ mfa/go.asp?MFAH0dgi0 (last visited Aug. 30, 2000) ("The State of Israel prides itself on having an open society with a democratic legal system which is subject to public scrutiny and which respects human values.").
178. Israeli government reports to the Committee Against Torture plainly reflect this sentiment. For example, the report of the public session discussing Israel's special report to the Committee Against Torture notes that one Israeli representative stated that "her Government held the Committee in the highest regard and it was important to convince the members of the committee that the methods of interrogation under discussion did not constitute torture. Israel considered the Convention to be very important." CAT Special Report Record, supra note 17, ¶ 53; see also infra Part IV.A (discussing Israel's position).
179. See infra notes 162, 164-72 and accompanying text (discussing Israeli denials).
180. While different agencies in Israel also reported to domestic and international bodies, official statements by the Ministry of Justice focus most clearly on the question of torture and present the most reasoned response.
181. Consolidated Cases, supra note 5.
182. For an example of one such exchange, see the response of the Israeli Embassy in London to a 1977 investigative newspaper report on Israeli interrogation methods. Insight Report, SUNDAY TIMES (London), June 19, 1977, reprinted in J. PALESTINE STUD., Summer 1977, at 191; letter to the Editor from Israeli Embassy in London, SUNDAY TIMES (London), July 3, 1977, reprinted in J. PALESTINE STUD., Summer 1977, at 210.
183. For an example of one such exchange, see the response of the Israeli Embassy in London to a 1977 investigative newspaper report on Israeli interrogation methods. Insight Report, SUNDAY TIMES (London), June 19, 1977, reprinted in J. PALESTINE STUD., Summer 1977, at 191; letter to the Editor from Israeli Embassy in London, SUNDAY TIMES (London), July 3, 1977, reprinted in J. PALESTINE STUD., Summer 1977, at 210.
184. For an example of one such exchange, see the response of the Israeli Embassy in London to a 1977 investigative newspaper report on Israeli interrogation methods. Insight Report, SUNDAY TIMES (London), June 19, 1977, reprinted in J. PALESTINE STUD., Summer 1977, at 191; letter to the Editor from Israeli Embassy in London, SUNDAY TIMES (London), July 3, 1977, reprinted in J. PALESTINE STUD., Summer 1977, at 210.
185. For an example of one such exchange, see the response of the Israeli Embassy in London to a 1977 investigative newspaper report on Israeli interrogation methods. Insight Report, SUNDAY TIMES (London), June 19, 1977, reprinted in J. PALESTINE STUD., Summer 1977, at 191; letter to the Editor from Israeli Embassy in London, SUNDAY TIMES (London), July 3, 1977, reprinted in J. PALESTINE STUD., Summer 1977, at 210.
186. Langer, supra note 108, at 76. Israeli lawyer Felicia Langer writes, "The courts were characterized by an utter lack of faith in the testimonies of those claiming to have been tortured. . . . [T]he official response to such claims were [sic] accredited to the wild imaginations of prisoners." Id. at 75.
187. See supra Part III.C (discussing the publication and content of the Landau Commission report).
188. See supra notes 157-58 and accompanying text (describing the Palestinian intifada that began in December 1987).
189. Amnesty International reported that in the first year of the intifada alone the Israeli government arrested more than 25,000 Palestinians. Israel and the Occupied Territories, AMNESTY INTERNATIONAL REPORT 1989, at 260 (1989).
190. CAT Special Report Record, supra note 17, ¶ 3 (reporting that the Israeli representative "categorically denied the allegations that Israeli authorities used torture during the interrogation of detainees").
191. GAULAN, supra note 159; see also CAT Special Report Record, supra note 17, ¶ 18 ("Israel categorically deplored and prohibited the practice of torture, including during interrogation."); see Summary Record of the Public Part of the 184th Meeting: Israel, U.N. Committee Against Torture, 12th Sess., 184th mtg. ¶ 9, U.N. Doc. CAT/C/SR.184 (1994) [hereinafter CAT Initial Report Record]. [M]any of the practices described in [reports of nongovernmental organizations on the prevalence of torture and ill-treatment in Israel] were illegal in Israel and if the authorities had information to the effect that such prohibited methods were being used, they would initiate proceedings against the perpetrators. The practices of hooding detainees with wet or dirty sacks, depriving them of food or subjecting them to extremes of cold and heat were all prohibited. Id.
192. GAULAN, supra note 159; see also CAT Special Report Record, supra note 17, ¶ 18 ("Israel categorically deplored and prohibited the practice of torture, including during interrogation."); see Summary Record of the Public Part of the 184th Meeting: Israel, U.N. Committee Against Torture, 12th Sess., 184th mtg. ¶ 9, U.N. Doc. CAT/C/SR.184 (1994) [hereinafter CAT Initial Report Record]. [M]any of the practices described in [reports of nongovernmental organizations on the prevalence of torture and ill-treatment in Israel] were illegal in Israel and if the authorities had information to the effect that such prohibited methods were being used, they would initiate proceedings against the perpetrators. The practices of hooding detainees with wet or dirty sacks, depriving them of food or subjecting them to extremes of cold and heat were all prohibited. Id.
193. GAULAN, supra note 159; see also CAT Special Report Record, supra note 17, ¶ 18 ("Israel categorically deplored and prohibited the practice of torture, including during interrogation."); see Summary Record of the Public Part of the 184th Meeting: Israel, U.N. Committee Against Torture, 12th Sess., 184th mtg. ¶ 9, U.N. Doc. CAT/C/SR.184 (1994) [hereinafter CAT Initial Report Record]. [M]any of the practices described in [reports of nongovernmental organizations on the prevalence of torture and ill-treatment in Israel] were illegal in Israel and if the authorities had information to the effect that such prohibited methods were being used, they would initiate proceedings against the perpetrators. The practices of hooding detainees with wet or dirty sacks, depriving them of food or subjecting them to extremes of cold and heat were all prohibited. Id.
194. For an example of an incident where the state accused a detainee of fabricating complaints in court, see Protocol of the High Court Hearing, H. C. 3282/97, Ghaneimat v. Minister of Def., translated in GINBAR, supra note 36, at 50. In this hearing, counsel for the state argued, "I checked and found that. . . [h]is allegations are baseless. They did not beat him, they did not cause him open wounds. . . . What [the petitioner] is saying is not the truth." Id. at 50. The counsel for Mr. Ghaneimat responded that Mr. Ghaneimat's body showed evidence of torture. His hands and legs were visibly swollen from beatings, among other signs. Id. at 51. For a more general example, see STATE OF ISRAEL MINISTRY OF JUSTICE, JUSTICE MINISTRY ON 1995 AMNESTY INTERNATIONAL REPORT (July 5, 1995), available at http://www.mfa.gov.il/mfa/go.asp?MFAH01f40 (last visited Aug. 31, 2000) ("Amnesty International has often upheld allegations of torture made by Palestinian detainees on the basis of evidence that is neither credible nor reliable according to any modern legal standard. The Palestinian detainees have their own motivations for fabricating these claims. . . .").
195. For an example of an incident where the state accused a detainee of fabricating complaints in court, see Protocol of the High Court Hearing, H. C. 3282/97, Ghaneimat v. Minister of Def., translated in GINBAR, supra note 36, at 50. In this hearing, counsel for the state argued, "I checked and found that. . . [h]is allegations are baseless. They did not beat him, they did not cause him open wounds. . . . What [the petitioner] is saying is not the truth." Id. at 50. The counsel for Mr. Ghaneimat responded that Mr. Ghaneimat's body showed evidence of torture. His hands and legs were visibly swollen from beatings, among other signs. Id. at 51. For a more general example, see STATE OF ISRAEL MINISTRY OF JUSTICE, JUSTICE MINISTRY ON 1995 AMNESTY INTERNATIONAL REPORT (July 5, 1995), available at http://www.mfa.gov.il/mfa/go.asp?MFAH01f40 (last visited Aug. 31, 2000) ("Amnesty International has often upheld allegations of torture made by Palestinian detainees on the basis of evidence that is neither credible nor reliable according to any modern legal standard. The Palestinian detainees have their own motivations for fabricating these claims. . . .").
196. Israel argues that GSS interrogators are collectively and individually excused from liability for using moderate physical pressure (torture) "as a last resort" when a detainee is thought to possess information that is vital to the protection of people and the state. This is also known as "the ticking bomb theory." CAT Initial Report Record, supra note 170, ¶ 15. In its September 1999 opinion, the Israeli High Court held that the necessity defense cannot provide a general authorization for interrogation with physical force and that its applicability in the case of an individual GSS interrogator would depend on the initiation of criminal proceedings. Consolidated Cases, supra note 5, ¶ 34. A more detailed discussion of the defense of necessity is beyond the scope of this Note.
197. Israel argues that GSS interrogators are collectively and individually excused from liability for using moderate physical pressure (torture) "as a last resort" when a detainee is thought to possess information that is vital to the protection of people and the state. This is also known as "the ticking bomb theory." CAT Initial Report Record, supra note 170, ¶ 15. In its September 1999 opinion, the Israeli High Court held that the necessity
198. For example, see the state's argument as represented in the Consolidated Cases, supra note 5, ¶ 15.
199. Initial Reports of States Parties Due in 1992: Israel, U.N. Committee Against Torture, addendum, ¶ 34, U.N. Doc. CAT/C/16/Add.4 (1994) [hereinafter CAT Initial Report].
200. 25 Eur. Ct. H.R. (ser. A), ¶ 41 (1976). See supra notes 23-26 and accompanying text for detailed discussion of this case.
201. Id. ¶ 96. For a discussion of the methods of interrogation employed by the GSS, see supra Part III.A.
202. CAT Initial Report, supra note 174, ¶ 34; see Second Periodic Reports of Status Parties due in 1996: Israel, U.N. Committee Against Torture, ¶ 7, U.N. Doc. CAT/C/33/Add.2/Rev.1 (1997) (relying on the European Court of Human Rights decision).
203. CAT Initial Report, supra note 174, ¶ 34; see Second Periodic Reports of Status Parties due in 1996: Israel, U.N. Committee Against Torture, ¶ 7, U.N. Doc. CAT/C/33/Add.2/Rev.1 (1997) (relying on the European Court of Human Rights decision).
204. CAT Special Report Record, supra note 17, ¶¶ 15, 48. In this session the Israeli delegation remarked that, as professors of international law, two members of the Committee Against Torture should understand Israel's argument. Id. ¶ 15.
205. Id. ¶ 16.
206. Id. ¶¶ 17-20. While the dialogue in paragraphs 14-21 of the CAT Special Report Record refers only to torture, the Israeli representative was responding to questions based on the prohibition on Article 1 (torture) and Article 16 (cruel, inhuman, or degrading treatment or punishment). Id. ¶¶ 12-13.
207. See supra notes 164-80 and accompanying text (citing different ways Israel communicated its position).
208. For a discussion of Israel's position, see supra Part IV.A.
209. See infra text accompanying notes 184-208 (discussing the different forums where nongovernmental and intergovernmental organizations challenged Israel's definition of torture).
210. The methodology used by James Ron in researching TORTURE AND ILL-TREATMENT, supra note 18, is typical of this research. He describes his research in the following manner: In preparing this report, [Human Rights Watch] conducted lengthy interviews with thirty-six ex-detainees who were interrogated . . . . In addition to our own interviews, this report draws on five interviews conducted by defense lawyers with Palestinians still in prison . . . . While not a cross-section or a random sample of the population that undergoes interrogation, our diverse sample demonstrates that Israel's principal interrogation agencies routinely mistreat Palestinians in their custody in ways that constitute torture. Id. at 24.
211. For examples of the organizations working to document Israeli interrogation methods, see supra notes 35-37. Several organizations published a series of documents over time. For example, B'Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, published seven reports on torture by the GSS between 1991 and 1997. GINBAR, supra note 36, at 8 n.5.
212. See CAT Initial Report Record, supra note 170, ¶ 9 (noting that the United Nations Committee Against Torture had relied on reports by international and Palestinian human rights organizations); CAT Concluding Observations, 1997, supra note 39, ¶ 257 (relying on descriptions of interrogation methods supplied by nongovernmental organizations).
213. See CAT Initial Report Record, supra note 170, ¶ 9 (noting that the United Nations Committee Against Torture had relied on reports by international and Palestinian human rights organizations); CAT Concluding Observations, 1997, supra note 39, ¶ 257 (relying on descriptions of interrogation methods supplied by nongovernmental organizations).
214. Report of the United Nations Special Rapporteur on Torture, Mr. Nigel S. Rodley, U.N. Commission on Human Rights, 55th Sess., Provisional Agenda Item 11 (a), ¶ 394, U.N. Doc. E/CN.4/1999/61 (1999) [hereinafter Special Rapporteur, 55th Sess., 1999] (reporting that the Special Rapporteur had continued to receive grounds for concern); Report of the United Nations Special Rapporteur on Torture, Mr. Nigel S. Rodley, U.N. Commission on Human Rights, 54th Sess., Provisional Agenda Item 8(a), ¶ 119, U.N. Doc. E/CN.4/1998/38 (1997) [hereinafter Special Rapporteur, 54th Sess., 1997] (same); Special Rapporteur, 53rd Sess., 1997, supra note 39, at 7 (1997) (same).
215. Under the Special Rapporteur's "urgent action procedure," the Special Rapporteur can approach a government directly if she or he has reason to believe a detainee may be being subjected to torture at the time of the intervention. Peter H. Kooijmans, The Role and Action of the U.N. Special Rapporteur on Torture, in THE INTERNATIONAL FIGHT AGAINST TORTURE 56, 59 (Antonio Cassese ed., 1991).
216. See Special Rapporteur, 55th Sess., 1999, supra note 187, ¶ 394; Special Rapporteur, 54th Sess., 1997, supra note 187, ¶ 121; Special Rapporteur, 53rd Sess., 1997, supra note 39, 7.
217. See Special Rapporteur, 55th Sess., 1999, supra note 187, ¶ 394 (reporting that use of "moderate physical pressure" violated the prohibition of cruel, inhuman, and degrading treatment); Special Rapporteur, 54th Sess., 1997, supra note 187, ¶ 121 ("It is nevertheless clear that Israel has not found a means compatible with international law to interrogate suspected terrorists."); Special Rapporteur, 53rd Sess., 1997, supra note 39, 7 (finding methods of interrogation used by Israel constitute torture).
218. For an example of these interventions, see Amnesty International's list of publications and news releases since 1996, including reports on Amnesty statements to the Commission on Human Rights and the Committee Against Torture, at http://www.amnesty.org/ ailib/countries/indx515.htm (last visited Aug. 31, 2000). The Birzeit University Human Rights Action Project and Al-Haq, the West Bank affiliate of the International Commission of Jurists, submitted similar interventions.
219. Israel also submitted reports and appeared in hearings before the committee according to its obligations as a signatory of the treaty. See supra Part IV.A (discussing Israel's reporting practices).
220. International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1967) (opened for signature Dec. 19, 1966); SEE ALSO DEPUTY ATTORNEY GENERAL OF THE STATE OF ISRAEL, ON ISRAEL'S FIRST AND PERIODIC REPORT ON THE IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ON JULY 15, 1998, available at http://www.mfa.gov.il/mfa/go.asp?/MFAH024o0 (last visited Aug. 31, 2000).
221. International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1967) (opened for signature Dec. 19, 1966); SEE ALSO DEPUTY ATTORNEY GENERAL OF THE STATE OF ISRAEL, ON ISRAEL'S FIRST AND PERIODIC REPORT ON THE IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ON JULY 15, 1998, available at http://www.mfa.gov.il/mfa/go.asp?/MFAH024o0 (last visited Aug. 31, 2000).
222. See supra note 186 (providing examples of occasions when the U.N. Committee Against Torture relied on reports of nongovernmental organizations).
223. See United Nations High Commissioner for Human Rights Treaty Body Database, Documents by Country: Israel, for a list of reports issued by the U.N. Committee Against Torture, U.N. Committee on Economic, Social and Cultural Rights, and Human Rights Committee, at http://www.nchchr.ch/tbs/doc.nsf (last visited Aug. 30, 2000).
224. See supra Part III.D (discussing this case).
225. Letter from Alexis Dipanda Mouelle, Chairman, Committee Against Torture, to Ambassador M. Yosef Lamdan, Permanent Mission of Israel to the United Nations Office at Geneva (Nov. 22, 1996), reprinted in LEGITIMIZING TORTURE, supra note 44, at app. 3.
226. Concluding Observations of the Committee Against Torture: Israel, U.N. Committee Against Torture, 14th Sess., ¶ 170(d), U.N. Doc. A/49/44, paras. 159-171 (1994) (recommending that Israel stop the use of moderate physical pressure); CAT Concluding Observations, 1997, supra note 39, ¶¶ 257, 260(a) (finding that certain forms of interrogation constitute torture and recommending that such methods "cease immediately"); Concluding Observations of the Committee Against Torture: Israel, U.N. Committee Against Torture, 20th Sess., ¶¶ 239, 240(a), U.N. Doc. A/53/44, paras. 232-242 (1998) [hereinafter CAT Concluding Observations, 1998] (same).
227. Concluding Observations of the Committee Against Torture: Israel, U.N. Committee Against Torture, 14th Sess., ¶ 170(d), U.N. Doc. A/49/44, paras. 159-171 (1994) (recommending that Israel stop the use of moderate physical pressure); CAT Concluding Observations, 1997, supra note 39, ¶¶ 257, 260(a) (finding that certain forms of interrogation constitute torture and recommending that such methods "cease immediately"); Concluding Observations of the Committee Against Torture: Israel, U.N. Committee Against Torture, 20th Sess., ¶¶ 239, 240(a), U.N. Doc. A/53/44, paras. 232-242 (1998) [hereinafter CAT Concluding Observations, 1998] (same).
228. Concluding Observations of the Committee Against Torture: Israel, U.N. Committee Against Torture, 14th Sess., ¶ 170(d), U.N. Doc. A/49/44, paras. 159-171 (1994) (recommending that Israel stop the use of moderate physical pressure); CAT Concluding Observations, 1997, supra note 39, ¶¶ 257, 260(a) (finding that certain forms of interrogation constitute torture and recommending that such methods "cease immediately"); Concluding Observations of the Committee Against Torture: Israel, U.N. Committee Against Torture, 20th Sess., ¶¶ 239, 240(a), U.N. Doc. A/53/44, paras. 232-242 (1998) [hereinafter CAT Concluding Observations, 1998] (same).
229. For a sense of the breadth of interventions taking place, see Amnesty International's list of publications and news releases concerning Israel since 1996. Israel (the State of) and the Occupied Territories: Amnesty International publications and news releases, 1996-, at http://www. amnesty.org/ailib/countries/indx515.htm (last visited Aug. 30, 2000).
230. See, for example, AMNESTY INT'L, INDEX NO. MDE 15/27/99, TORTURE/LEGAL CONCERN/HEALTH CONCERN, ISRAEL/OCCUPIED TERRITORIES: MUNA HASSAN AWAD BARHASIN (F), NURSERY SCHOOL MANAGER, AGED 28 (12 Mar. 1999). The opening line of this request reads, "Amnesty International is alarmed at reports that Muna Hassan Awad Barhasin, a Palestinian woman arrested last month at an Israeli checkpoint in the West Bank, is being tortured and ill-treated under interrogation by Israel's General Security Service." Id. at 1. The Urgent Action then provides the details of the case and information about Israel's use of torture or ill-treatment in interrogation. Finally, the Urgent Action recommends that the recipient contact the responsible Israeli officials to inquire about their treatment of Ms. Barahasin. The Urgent Action then provides information for contacting Israeli officials. Id.
231. See About B'Tselem at http://www.btselem.org (last visited Aug. 30, 2000) (discussing B'Tselem's contact with the Israeli legislature, the Knesset, and others). Many nongovernmental human rights organizations contacted the United States and European governments, as well as the European Union, to raise awareness of GSS interrogation practices and to call for interventions against the Israeli position. For one example of this practice, see TORTURE AND ILL-TREATMENT, supra note 18, at xv-xviii, calling on the United States and Europe to support efforts to halt torture and ill-treatment in Israel.
232. See About B'Tselem at http://www.btselem.org (last visited Aug. 30, 2000) (discussing B'Tselem's contact with the Israeli legislature, the Knesset, and others). Many nongovernmental human rights organizations contacted the United States and European governments, as well as the European Union, to raise awareness of GSS interrogation practices and to call for interventions against the Israeli position. For one example of this practice, see TORTURE AND ILL-TREATMENT, supra note 18, at xv-xviii, calling on the United States and Europe to support efforts to halt torture and ill-treatment in Israel.
233. Israeli doctors routinely examined Palestinians under interrogation and certified whether a detainee was "fit for interrogation." Ruchama Marton, The White Coat Passes Like a Shadow: The Health Profession and Torture in Israel, in MEDICAL ETHICS, supra note 33, at 33-37. See generally AMNESTY INT'L, INDEX NO. MDE 15/37/96, "UNDER CONSTANT MEDICAL SUPERVISION" TORTURE, ILL-TREATMENT AND THE HEALTH PROFESSIONS IN ISRAEL AND THE OCCUPIED TERRITORIES (1996), available at http://www.amnesty.org/ailib/aipub/1996/MDE/51503796. htm (last visited Aug. 30, 2000) (reporting on the role of Israeli health professionals in the interrogation of Palestinian detainees).
234. Israeli doctors routinely examined Palestinians under interrogation and certified whether a detainee was "fit for interrogation." Ruchama Marton, The White Coat Passes Like a Shadow: The Health Profession and Torture in Israel, in MEDICAL ETHICS, supra note 33, at 33-37. See generally AMNESTY INT'L, INDEX NO. MDE 15/37/96, "UNDER CONSTANT MEDICAL SUPERVISION" TORTURE, ILL-TREATMENT AND THE HEALTH PROFESSIONS IN ISRAEL AND THE OCCUPIED TERRITORIES (1996), available at http://www.amnesty.org/ailib/aipub/1996/MDE/51503796. htm (last visited Aug. 30, 2000) (reporting on the role of Israeli health professionals in the interrogation of Palestinian detainees).
235. See Marton, supra note 202, at 39; see also Mamdouh Al-Aker, Where is the Israeli Medical Association?, in TORTURE: HUMAN RIGHTS, MEDICAL ETHICS, AND THE CASE OF ISRAEL 63, 63 (Neve Gordon & Ruchama Marton eds., 1995) (calling for a more active role by the Israeli Medical Association in preventing torture).
236. See Marton, supra note 202, at 39; see also Mamdouh Al-Aker, Where is the Israeli Medical Association?, in TORTURE: HUMAN RIGHTS, MEDICAL ETHICS, AND THE CASE OF ISRAEL 63, 63 (Neve Gordon & Ruchama Marton eds., 1995) (calling for a more active role by the Israeli Medical Association in preventing torture).
237. See generally the report on the Conference on the International Struggle Against Torture and the Case of Israel, held in Tel Aviv, Israel, on June 13-14, 1993, and organized by the Association of Israeli-Palestinian Physicians for Human Rights and the Public Committee Against Torture in Israel, in MEDICAL ETHICS, supra note 202 (providing different perspectives on collusion between medical professionals and the GSS).
238. See AMNESTY 1998, supra note 130, at 13 (noting that torture cases had been brought to the High Court of Justice for about five years).
239. Id.
240. See supra Part III.D (discussing High Court of Justice rulings).
241. See infra notes 205-07 and accompanying text (discussing the nongovernmental petitions).
242. Consolidated Cases, supra note 5, ¶¶ 2-7.
243. Id.
244. Id.
245. Id. ¶ 2.
246. Id.
247. Consolidated Cases, supra note 5.
248. Id. The court also rejected the government's use of the defense of necessity. See id. ¶¶ 33-38. A discussion of this part of the ruling is, however, beyond the scope of this Note.
249. Id. ¶ 32.
250. Id. ¶ 22 (citing Cr.A. 115/82, Mouadi v. State of Israel, 35(1) P.D. 197, 222-24 (1982)).
251. Consolidated Cases, supra note 5, ¶ 22.
252. Id. ¶ 23.
253. Id. (citing F.H. 3081/91, Kozli v. State of Israel, 35(4) P.D. 441, 293, 298 (1991), and CA. 4463/94, Golan v. Prison Sec. Serv., 50(4) P.D. 136 (1994)).
254. Consolidated Cases, supra note 5, ¶ 23.
255. Id.
256. Id. Barak cited Nigel S. Rodley, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW (1987). Id. Professor Rodley is the U.N. Special Rapporteur on Torture. His criticism of the Israeli position is discussed supra Part IV.B.
257. 25 Eur. Ct. H.R. (ser. A) at 44 (1976); see supra Parts III.B, III.C (discussing Israel's use of the case).
258. Consolidated Cases, supra note 5, at ¶ 31.
259. Id. ¶¶ 24-38.
260. Justice Barak discusses shaking in general, not only "violent shaking." Id. ¶ 24.
261. Id. ¶ 27.
262. Id. ¶ 29.
263. Consolidated Cases, supra note 5, ¶ 31.
264. Press Release, B'Tselem, Re the HCJ Decision on Torture (Sept. 6, 1999), available at http://www.btselem.org (last visited Aug. 30, 2000).
265. Press Release, Amnesty Int'l, Israel/Occupied Territories: The Israeli Government Should Implement the High Court Decision Making Torture Illegal (Sept. 6, 1999), available at http://www.amnesty.org/news/1999/51506899.htm (last visited Aug. 30, 2000).
266. See Consolidated Cases, supra note 5, ¶ 32.
267. Id.
268. Id. ¶ 37.
269. Id. ¶ 38.
270. Aryeh Dayan, A Ticking Time Bomb in the Knesset Some 64 MKs have Signed a Bill Specifically Authorizing the Shin Bet to Use Torture Under Certain Conditions - Despite the Fact that Israel Has Signed an International Treaty Prohibiting It, HA'ARETZ (Tel Aviv), Nov. 1, 1999, available at 1999 WL 29285200; see also Press Release, Amnesty Int'l, Fear of the Legalization of Torture (Nov. 29, 1999) (reporting on the introduction of the bill and the fact that it violates the Convention Against Torture).
271. Dayan, supra note 237.
272. For an example of the kinds of campaigning that resulted, see POSITION PAPER: LEGISLATION ALLOWING THE USE OF PHYSICAL FORCE AND MENTAL COERCION IN INTERROGATIONS BY THE GENERAL SECURITY SERVICE (B'Tselem: The Israeli Information Center for Human Rights in the Occupied Territories ed., 2000) (reporting on steps by the parliament to adopt legislation allowing torture and inviting recipients to protest against enactment of such legislation).
273. Barak could have done this by recognizing the ban on torture as a part of customary international law. See supra note 100 and accompanying text (explaining the automatic incorporation of customary international law into the law of Israel).
274. See supra note 41 (noting that the GSS has tortured non-Palestinians).
275. Consolidated Cases, supra note 5, ¶¶ 22-23.
276. See Press Release, Amnesty Int'l, Fear of the Legalization of Torture (Nov. 29, 1999) (calling on Amnesty members to contact parliament members urging them to support a draft penal code amendment prohibiting torture).
277. CAT Concluding Observations, 1997, supra note 39, ¶ 260(b) (calling on Israel to incorporate the provisions of the Convention Against Torture into Israeli statutory law).
278. CAT Concluding Observations, 1998, supra note 198, ¶ 240(b) (calling on Israel to incorporate the provisions of the Convention Against Torture into Israeli statutory law).
279. See supra text accompanying note 106 (noting that a treaty does not have legal effect in Israel until it is incorporated by statute and explaining that the Convention Against Torture has not been incorporated).