Israel's Interrogation Policies and Practices
STATE OF ISRAEL
MINISTRY OF JUSTICE
TAMAR GAULAN, Adv.
Director, Human Rights and
International Relations Dept.
December 1996
Israeli law strictly forbids all forms of torture or maltreatment. The
Israeli Penal Code (1977) prohibits the use of force or violence against a
person for the purpose of extorting from him a confession to an offense or
information relating to an offense. Israel signed and ratified the U.N.
Convention Against Torture and Cruel, Inhuman or Humiliating Treatment.
The State of Israel maintains that the basic human rights of all persons
under its jurisdiction must never be violated, regardless of the crimes
that the individual may have committed. Israel recognizes, however, its
responsibility to protect the lives of both Jews and Arabs from harm at
the hands of Palestinian terrorist organizations active throughout the
world. To prevent terrorism effectively while ensuring that the basic
human rights of even the most dangerous of criminals are protected, the
Israeli authorities have adopted strict rules for the handling of
interrogations. These guidelines are designed to enable investigators to
obtain crucial information on terrorist activities or organizations from
suspects who, for obvious reasons, would not volunteer information on
their activities, while ensuring that the suspects are not maltreated.
The Landau Commission
The basic guidelines on interrogation were set by the Landau Commission of
Inquiry. The Commission, headed by former Supreme Court President, Justice
Moshe Landau, was appointed following a decision of the Israeli government
in 1987 to examine the General Security Service's (GSS) methods of
interrogation of terrorist suspects. In order to compile its
recommendations, the Landau Commission examined international human rights
law standards, existing Israeli legislation prohibiting torture and
maltreatment, and guidelines of other democracies confronted with the
threat of terrorism.
The Landau Commission envisioned its task as defining "with as much
precision as possible, the boundaries of what is permitted to the
interrogator and mainly what is prohibited to him." The Commission
determined that in dealing with dangerous terrorists who represent a grave
threat to the State of Israel and its citizens, the use of a moderate
degree of pressure, including physical pressure, in order to obtain
crucial information, is unavoidable under certain circumstances. Such
circumstances include situations in which information which an
interrogator can obtain from the suspect can prevent imminent murder, or
where the suspect possesses vital information on a terrorist organization
which could not be uncovered by any other source (e.g., locations of arms
or explosive caches or planned acts of terrorism).
The Landau Commission recognized the danger posed to the democratic values
of the State of Israel should its agents abuse their power by using
unnecessary or unduly harsh forms of pressure. As a result, the Commission
recommended that psychological forms of pressure be used predominantly and
that only "moderate physical pressure" (not unknown in other democratic
countries) be sanctioned in limited cases where the degree of anticipated
danger is considerable.
It should be noted that the use of such moderate pressure is in accordance
with international law. For example, when asked to examine certain methods
of interrogation used by Northern Ireland police against IRA terrorists,
the European Human Rights Court ruled that "[i]ll-treatment must reach a
certain severe level in order to be included in the ban [of torture and
cruel, inhuman or degrading punishment] contained in Article 3 [of the
European Convention of Human Rights]." In its ruling, that Court disagreed
with the view of the Commission that the above mentioned methods could be
construed as torture, though it ruled that their application in
combination amounted to inhuman and degrading treatment. The question
whether each of these measures separately would amount to inhuman and
degrading treatment was therefore left open by the Court.
The Landau Commission was aware that the issue of moderate pressure during
interrogation is both a serious and sensitive one. The guidelines
regarding interrogation provide for limited forms of pressure under very
specific circumstances, to be determined on a case by case basis. They by
no means authorize indiscriminate use of force. Rather, specific
circumstances have been identified and interrogation practices have been
strictly defined in a manner that, in the opinion of the Landau
Commission, "if these boundaries are maintained exactly in letter and in
spirit, the effectiveness of the interrogation will be assured, while at
the same time it will be far from the use of physical or mental torture,
maltreatment of the person being interrogated, or the degradation of his
human dignity. "
To ensure that disproportionate pressure is not used, the Landau
Commission identified several measures, which have been adopted and are
now in force, namely:
1. Disproportionate exertion of pressure on the suspect is not permissible
pressure must never reach the level of physical torture or maltreatment
of the suspect, or grievous harm to his honor which deprives him of his
human dignity.
2. The use of less serious measures must be weighed against the degree of
anticipated danger, according to the information in the possession of the
interrogator.
3. The physical and psychological means of pressure permitted for use by
an interrogator must be defined and limited in advance, by issuing binding
directives.
4. There must be strict supervision of the implementation in practice of
the directives given to GSS interrogators.
5. The interrogators' supervisors must react firmly and without hesitation
to every deviation from the permissible, imposing disciplinary punishment,
and in serious cases, causing criminal proceedings to be instituted
against the offending interrogator.
Once these measures were set down, the Landau Commission went on, in a
second section of its report, to precisely detail the exact forms of
pressure permissible to the GSS interrogators. This section has been kept
secret out of concern that, should the narrow restrictions binding the
interrogators be known to the suspects undergoing questioning, the
interrogation would be less effective. Palestinian terrorist organizations
commonly instruct their members, and have even printed a manual, on
techniques of withstanding GSS questioning without disclosing any
information. It stands to reason that publishing GSS guidelines would not
only enable the organizations to prepare their members better for
questioning, but would reassure the suspect as to his ability to undergo
interrogation methods without exposing vital information, thus depriving
the GSS of the psychological tool of uncertainty.
Safeguards
Since the interrogation guidelines are secret, the Israeli government
recognized the importance of establishing safeguards and a system of
review of interrogation practices in order to insure that GSS
investigators do not violate the guidelines. As a result, the GSS
Comptroller was instructed to check every claim of torture or maltreatment
during interrogation. From 1987 until the beginning of 1994, the
Comptroller carried out this responsibility, initiating disciplinary or
legal action against interrogators in cases where they have been found to
have deviated from the legal guidelines. Early in 1994, in accordance with
the recommendations of the Landau Commission, responsibility for
investigation of claims of maltreatment was transferred to the Division
for the Investigation of Police Misconduct in the Ministry of Justice
under the direct supervision of the State Attorney.
The Landau Commission also recommended that there be external supervision
of GSS activities. Since the Landau Commission issued its recommendations,
the State Comptroller's Office has launched an examination of the GSS
investigator's unit. Upon the completion of its inquiry, the State
Comptroller's findings will be submitted to a special subcommittee of the
Knesset (Israeli Parliament) State Comptroller Committee. A further review
procedure exists whereby the conclusions of the special ministerial
committee, detailed below, as well as the annual reports of the
investigators' unit are brought to the attention of the Sub-committee for
Services of the Knesset Foreign Affairs and Defence Committee.
In addition, an agreement between the State of Israel and the
International Committee of the Red Cross (ICRC) provides for the
monitoring of conditions of detention. Delegates from the ICRC are
permitted to meet with detainees in private within 14 days of the arrest.
ICRC doctors may examine detainees who complain of improper treatment. All
complaints made by the ICRC regarding treatment of prisoners are fully
investigated by the relevant Israeli authorities and the findings are made
known to the ICRC.
In May 1991, a special ad-hoc committee composed of members of the GSS and
the Justice Ministry was appointed to review complaints against the
conduct of GSS investigators during interrogation. The committee
identified a number of cases in which investigators did not act in
accordance with the guidelines for treatment of detainees. As a result of
the Committee's findings, action has been taken against GSS investigators
involved in these cases.
Review
As recommended by the Landau Commission, a special ministerial committee
headed by the Prime Minister was established in 1988 under the previous
government to review periodically the interrogation guidelines themselves.
This committee held several sessions but its work was cut short by the
national elections which were held in June, 1992. Following the
establishment of the new government in July, 1992 a new ministerial
sub-committee composed of the Ministers of Justice and Police was
appointed in order to review the guidelines. On April 22, 1993, the
Ministerial sub-committee detrmined that certain changes should be made in
the General Security Service guidelines. On the basis of the
sub-committee's recommendations, new guidelines were issued to General
Security Service investigators. The new guidelines clearly stipulate that
the need and justification for the use of limited pressure by
investigators must be established in every case, according to its own
special circumstances. The updated guidelines also point out that the use
of exceptional methods was intended only for situations where vital
information is being concealed and not in ordre to humiliate, harm or
mistreat those under investigation. In addition, in the new guidelines, it
is expressly stated that it is prohibited to deny a person under
investigation food or drink, to refuse him permission to use a bathroom or
to subject him to extreme temperatures.
In 1991, a petition was submitted to the Supreme Court of Israel sitting
as the High Court of Justice by a detainee named Murad Adnan Salkhat and a
private group named the Israel Public Committee Against Torture,
challenging the legality of the guidelines and demanding that they be made
public. The Court dismissed the petition and confirmed the necessity for
secrecy.
Conclusion
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. As a result, any allegations of maltreatment are
taken seriously and are investigated on a case by case basis. However, it
should be noted that individuals arrested, tried or convicted have both
personal and political motives for fabricating claims of maltreatment
during interrogation. Personal motives include the desire to have a
confession ruled inadmissible at trial, to present oneself as a "martyr",
or to escape retribution from Palestinian terrorist cells which have often
assassinated or tortured individuals who have given information to the
Israeli authorities. Political motives include the desire to spread
anti-Israel disinformation in the form of unfounded human rights
complaints, in order to undermine Israel's human rights image or discredit
the Ggeneral Security Service.
It is the unfortunate reality that, during times of political unrest and
violence, restrictions must be placed on individuals who threaten the
welfare of the State and its citizens. This paper has been aimed at
demonstrating that, despite the harsh reality of continuing terrorism
faced by the State of Israel, we are doing everything in our power to
uphold the rights of all persons under our jurisdiction while ensuring the
safety of innocent individuals.