Once again, the Israel Ministry of Justice charged Amnesty International with issuing an unbalanced report, replete with errors, omissions and inaccuracies. It also did not include Israel's comments on the report which is the accepted norm in such cases. Text:
Introduction
Since the Six Day War of 1967, a war which Israel was compelled to fight for its survival, Israel has been the responsible authority for security and stability in the administered areas of Judea, Samaria and Gaza. Unfortunately, the widespread violence and intimidation practiced by the instigators of the intifada has made this responsibility much more arduous. Nevertheless, despite the claims contained in A.I.'s latest Report, the procedures followed by Israel against extremist elements who promote violence and turmoil are fully in keeping with the relevant international and local law.
It should be clear at the outset that Israel's legal measures are directed against violence instigated by terrorist elements (usually affiliated with the PLO, Hamas, or the Islamic Jihad), not against the bulk of the approximately 1.4 million residents of the administered areas. Indeed, every effort is being made to arrest and bring to trial those behind the tens of thousands of recorded attacks using guns, knives, grenades, Molotov cocktails, axes, stones, acid, and other weapons which have been committed since the start of the intifada. This effort is being undertaken not merely to protect Israelis from violence, but to protect the local residents of the areas from the vicious fanatics who, wearing masks to conceal their identity, engage in torture and murder on an unprecedented scale. These masked killers offer their unfortunate victims no possibility for legal representation, no right to petition for release on bail, no right of appeal to the Military Court of Appeals or the Supreme Court sitting as the High Court of Justice, and no visits by the International Committee of the Red Cross or by Amnesty International. Significantly, A.I. has never issued a single report condemning this widespread scourge, although it has repeatedly taken Israel to task for its legal measures used to prevent such grievous and premeditated violations of human rights and to punish their perpetrators.
The Report's Errors, Omissions and Inaccuracies
The Report belittles Israel's continuous efforts to protect the human rights of detainees, impugns its procedural safeguards - some of which are unprecedented in international law, focuses on a handful of isolated problematic cases while ignoring the overall picture, relies heavily on self-serving and politically motivated sources (i.e. anonymous lawyers whose clients have been charged with acts of terrorism and violence and human rights organizations that habitually criticize every Israeli action), and ignores the provocations committed by individuals whom it refers to as "Palestinian civilians".
Many of the comparisons in the Report are irrelevant. For example, repeated analogies to Israel's domestic legal system are misleading. Israel's authority in the areas is grounded in Article 43 of the Hague Regulations which obligates Israel to preserve public order and safety. To this end, Israel is justified in applying different legal procedures to cope with the difficult security situation. In spite of this far-reaching authority, the rules of evidence and procedure applied in fact in the military courts are identical to those in effect in Israel.
The Report, which is more than 80 pages long, devoted precisely one paragraph to the context in which the Israeli authorities have been compelled to operate the legal system. The single paragraph on pages 1-2 is hardly sufficient or accurate. It minimizes the daily reality of terrorism and disorder and disregards entirely the responsibility of the PLO, Hamas and Islamic Jihad for creating and maintaining an atmosphere of terror and intimidation. Indeed, the entire problem of internecine Arab kidnappings, tortures, and killings is disposed of with the following banal sentence (brackets contain comments by the Ministry of Justice):
Scores [the true number is approximately 450] of Palestinians have been killed apparently by other Palestinians [the PLO and other groups generally take "credit" for the killings], the vast majority of them on suspicion of collaborating with the Israeli authorities [some 80-90 percent have no connection with the authorities].
Furthermore, the report contains no criticism of the defense lawyers whose anonymous testimony it relies on so thoroughly. It should have explained that often they function not as "officers of the court", but rather as political actors wining to sacrifice the interests of justice and of their clients for political ends. Their frequent strikes, willful failure to appear when their cases are scheduled, refusal to make plea bargains when their clients are clearly guilty, and general efforts to obstruct the legal system should have been addressed in detail.
Contrary to the Report's claims, alleging unreasonable delays in the notification to families of arrested individuals, every effort is made to expedite the process. The detainees are given a blue postcard especially designed for this purpose immediately upon their arrival and the postcards are mailed the following morning. Any delay in receipt of these postcards is attributable to the infrequent postal service in some remote villages. Also, contrary to the Report's claim, the fists of detainees are posted daily in the Civil Administration Offices. Since the implementation of these procedures, the authorities have not received a single complaint from a detainee's family regarding the timeliness of an arrest notification.
The Report erroneously claims that "detainees appear to be denied access to lawyers during the entire period of interrogation" (page 35). In fact, access to a lawyer may be denied only in cases of serious security offenses and only when the authorities believe that such a meeting will prejudice the investigation. Even in cases where the detainee does not meet with his lawyer for the above-mentioned reasons, he is nevertheless brought before a judge and meets with delegates of the International Committee of the Red Cross during this period.
The Report unfairly criticizes the process of plea bargaining - a feature shared by many criminal justice systems in Western democracies. Indeed, no legal system has the resources to try every case. For this reason defendants are often offered advantageous terms to plead guilty to lesser charges and receive a lighter punishment. Nobody claims that this method of managing overcrowded dockets is ideal, but the Report reveals its one-sidedness by entirely ignoring the benefits of plea bargaining for the accused.
Allegations of Torture and The Landau Commission
In its allegations of torture, A.I. disregards the reality that individuals arrested, tried or convicted often have both personal and political motives for exaggerating or fabricating tales to justify their own actions or to embarrass the government. Personal motives can include the desire to have a confession thrown out at trial during the mishpat zuta (little trial within a trial) or to escape retribution from the intifada leadership that has often assassinated or wounded Arabs who make plea bargains. Political motives include the desire to spread anti-Israel disinformation - as bogus human rights complaints - so as to undermine Israel's human rights record. Simply put, for a terrorist who would firebomb a civilian bus or kidnap and torture an Arab on the rumor that he has contacts with Israeli authorities, lying (through an interpreter) to a delegate of a human rights organization comes easily.
False allegations of maltreatment are common. One such case was that of Ahmed Suleiman Salman al-Hawamda. In September 1989, he complained in the media through a representative that, while under arrest at the Dahariya prison in August 1989, he was abused and beaten by two interrogation officers whose names he mentioned. During the subsequent investigation into his charges, al-Hawamda denied that he had been beaten or tortured and stated that the pains he suffered from were the result of a fall. He further explained that he fabricated his complaint so that he would receive better medical treatment and so that his family would treat him like a hero. Al-Hawamda also admitted that one of the two interrogation officers he had complained against had never questioned him; he had in fact heard another prisoner mention the investigator's name.
Amnesty International too has been taken-in by fabricated claims of ill treatment. For example, in 1990, A.I. issued an "Urgent Action" campaign for thousands of its members worldwide to send telegrams, facsimiles and letters to Israeli officials protesting that a detainee named Ahmad 'Abd al-Rahman Kabaha had allegedly been tortured. In fact, three days after the alleged incident, Kabaha issued a written retraction and admitted that he had burned himself with a cigarette. Although A.I. omitted this case from the Report, it has never issued a retraction, either to Israel or to its membership.
The Report's implication that the guidelines drawn up by the Landau Commission of Inquiry endorse torture or are routinely ignored is utterly false. A proper reading of the public portion of the Landau Commission Report would have emphasized that the disproportionate exertion of pressure on suspects (i.e. by torture or maltreatment) is forbidden and that pressure is to be principally psychological and not physical.
Israel has repeatedly condemned all use of torture. As the Report acknowledges, torture and abuse of detainees is expressly forbidden by Israeli law. In every instance where sufficient evidence exists that improper methods have been used by an interrogation officer, a criminal trial or a disciplinary proceeding is instituted against the person believed to have violated the norms.
A.I.s Report omits mention of two meaningful safeguards. First, interrogation officers identify themselves to the detainees they question in such a way as to enable them to be called to give evidence in any subsequent proceedings in which allegations of misconduct are raised. Second, a complainant may agree to undergo a polygraph test to support his allegation that he had been mistreated. In addition, a joint team of representatives of the Ministry of Justice and the General Security Service has recently been established to investigate allegations of improper methods of interrogation. A parallel investigation has been launched by the IDF. Also, the Landau Commission report is the subject of a pending case before the Supreme Court sitting as the High Court of Justice.
It is naive for Amnesty International to expect Israel, or any other government, to make public all existing guidelines relating to the use of pressure during interrogation. For reasons that are obvious even to Amnesty International, no government would reveal to the public (which of course includes the very terrorists it must apprehend and prosecute) the precise methods that are used to outwit its adversary.
Great care is taken to see that Israeli interrogation officers operate within the humanitarian norms of binding international law. A more balanced analysis of Israel's record would no doubt reflect positively on Israel's accomplishments in light of the difficult circumstances it finds itself in.
Conclusions
Like other government programs, the legal system in the administered areas is subject to fiscal and staffing constraints. Nevertheless, despite difficult circumstances, including intensive efforts of the participants in the intifada to create turmoil in the courts and prisons, Israel has managed to contend not only with the ordinary criminal and security threats, but also with the geometric increase in workload caused by the intifada.
Israel remains open to investigation and responsive to constructive criticism by Israeli and foreign human rights groups. As the Report acknowledges on page 3:
The report is based on information gathered by Amnesty International over several years... During these years Amnesty International delegates have regularly visited Israel and the Occupied Territories in order to gather information, discuss matters and observe trials. They have always obtained access and cooperation of the Israeli authorities.
Regrettably, despite Israel's openness and cooperative attitude, Amnesty International's Report contributes little to a balanced understanding of Israel's efforts to simultaneously protect human rights and preserve security in the administered areas.