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From the field

Legitimizing Torture: The Israeli High Court of Justice Rulings in the Bilbeisi, Hamdan and Mubarak Cases

January 1997, Summary

The Israeli High Court of Justice Rulings in the Bilbeisi, Hamdan and Mubarak Cases January 1997 In the course of 1996, the Israeli Supreme Court sitting as High Court of Justice (HCJ) has heard dozens of appeals by Palestinian detainees complaining of physical and psychological methods of "pressure" applied by General Security Service (GSS) interrogators.

The HCJ has on several occations issued orders nisi and interim injunctions temporarily prohibiting the GSS from using some or all of these measures. However, in the cases where the State appealed against such injunctions, the HCJ has consistently sided with the State, permitting the GSS to use physical force and a variety of specific means of "pressure."

Both the legal justification for and the actual practices of interrogation were out-lined in 1987 by the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activities (Landau Commission).

The Commission recommended that the GSS use psychological pressure and a "moderate measure of physical pressure", detailed in its secret annex. By that Commission's own definition, such pressure "must not reach physical torture, ill-treatment of the interrogee or severe harm to his honour which deprives him of his human dignity".

Nevertheless, as early as 1991, B'Tselem determined that the interrogation measures used in actual practice by the GSS constitute torture as defined by international legal instruments. Subsequently, this was reiterated by other human rights organisations, including Amnesty International and Human Rights Watch.

In 1994, the Committee Against Torture (CAT), the UN body charged with suprevising the implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, stated that:

The Landau Commission report, permitting as it does "moderate physical pressure" as a lawful mode of interrogation, is completely unacceptable to this Committee.

Israel has not only ignored this unequivocal rejection of its policies and legal reasoning, but has since September 1994, allowed the GSS additional "special permissions" to use what the press has termed "enhanced physical pressure". These "special permissions", granted, ostensibly for a limited period of time, following a wave of terrorist attacks, have routinely been extended ever since.

It should be emphasized that, far from being used only in special circumstances, torture methods are used against a large number of Palestinian detainees. According to the last official estimate, some 23,000 Palestinians were interrogated by the GSS between 1987 and 1994. According to the experience of B'Tselem and other human rights organisations, it is very rare indeed that the GSS interrogates Palestinians without using at least some of the methods described below. In 1995, following the death of a Palestinian detainee as a result of "shaking", the then Prime Minister, the late Yitzhak Rabin, said that this method had been used against 8,000 detainees.

Not even the death of that detainee has persuaded the Israeli government or, for that matter, the Supreme Court, to order the GSS to refrain from using either the method of "shaking", or any other of its harsh interrogation methods.