Thank you Mr. Chairman,
Distinguished members of the Committee,
I appreciate the opportunity to present Israel's 2nd Periodic Report on the implementation of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Before I begin my presentation, I would like to present my fellow members of the Israeli delegation: Mr. Yehuda Shaffer, Senior Deputy to the State Attorney at the High Court of Justice Division in the State Attorney's Office in the Ministry of Justice and Mr. Alexander Galilee, Deputy Permanent Representative of Israel to the United Nations Office in Geneva.
Mr. Chairman,
Israel welcomes this meeting with the Committee in order to conduct an open and constructive dialogue on the implementation of the Convention. We therefore wish to supplement some information that has been submitted before, as well as to highlight and emphasize certain parts of our Second Periodic Report. I also wish to comment on some issues that were raised by members of the Committee during the previous consideration of Israel's special report, in May 1997.
Mr. Chairman,
Israel regards its obligations under the Convention as important and takes the subject very seriously. Thus, we have cooperated with the Committee in the past, not only by submitting reports both as required in the Convention, and beyond the schedule prescribed in the Convention, but also, and not less importantly, by conducting what we would wish to be a candid, sincere and professional dialogue with the Committee.
In previous meetings with the Committee we have set out to describe the circumstances against which the implementation by Israel of the Convention should be examined. We have presented the dilemma with which the Israeli authorities are faced: on the one hand we have described at some length the very real, and ongoing struggle against acts of terrorism, the perpetrators of which clearly separate themselves from the law abiding community, whilst on the other hand, Israel has taken upon itself the obligation to comply with international human rights norms as reflected inter alia in the relevant provisions of the Convention.
In this context we have noted the acknowledgment by this distinguished Committee, in its conclusions of the May 1997 meeting, of the terrible dilemma that Israel confronts in dealing with terrorist threats to its security. However, we were somewhat surprised, and even disturbed to discover that in its consideration of Israel's previous reports, the Committee chose not to address a central component of Israel's position, which derives directly from the Convention and its imperatives. I refer to the legal position put forward by Israel, that the procedures of interrogation used in order to prevent acts of terrorism do not amount, by any legal criterion, to either torture as defined by Article 1 of the Convention, nor to cruel, inhuman or degrading treatment as set out in Article 16.
Clearly the matter is open to discussion as a question of legal interpretation of the Convention, and the distinguished legal scholars among you will doubtless appreciate that this calls for some in-depth analysis of the intentions behind the terminology used in the Convention, as well as of the intentions of the states which drafted it. This debate stems from the difficulty in delineating the threshold of both Article 1 and Article 16. To our surprise, Mr. Chairman, after receiving the conclusions and recommendations of the Committee following our previous appearance before it, at its session last May, it is unclear as to whether such in-depth consideration or debate indeed took place. Thus, we were left with the impression that the Committee, rather than conducting a substantive dialogue, chose to limit itself to a categorical statement which did not clearly indicate whether any consideration had been given to the basic legal issues pertaining to the implementation of the Convention in the framework and circumstances presented by Israel in its reports and presentations. Mr. Chairman, any interpretation of the prohibition of torture and of cruel, inhuman or degrading procedures of interrogation, according to the Convention must, of necessity, accurately reflect the restrictive scope of the prohibition as defined in the Convention itself - especially when that definition makes reference to a specific criterion of severity as a means of measuring the extent or degree of any physical or mental suffering. Accordingly, in determining the lawfulness under the Convention of a specific measure, careful consideration must surely be given to the question whether that measure in fact meets the criterion or degree of severity set out in the Convention. Any sweeping and generalized interpretation which is not inherently linked to the factual elements and circumstances, cannot accurately be viewed as genuine application of the requirements of the Convention to that case. Each measure should be considered on its merits and circumstances.
This, of course, is applicable mutatis mutandis with regard to article 16.
Mr. Chairman, my delegation wishes to respectfully submit that in reviewing the implementation by a State party of its obligations under the Convention in this most delicate yet vitally important sphere, sweeping and generalized determinations can have no place in the Committee's work. This Committee is not one of the United Nations political organs but rather a specialized, expert forum whose members are endowed with recognized competence in this specific field.
Mr. Chairman, the importance of examining each interrogation procedure on its merits, as opposed to a sweeping judgment of all interrogation procedures en bloc, is evident from the examples considered during the last session, for instance when it was alleged that detainees are forced to listen to music at very high volume. The Committee determined in its conclusions, on the basis of allegations by non-governmental organizations, that this, as well as other procedures, namely sleep deprivation, threats, "cold air to chill" etc., are a form of torture or cruel treatment.
The question arises, Mr. Chairman whether the criterion of severity was considered with respect to all these allegations prior to the Committee's reaching its conclusion. How loud does music have to be in order to be considered "torture" (even assuming that it is used for the purposes set out in Article 1 of the Convention) ? What is the nature of a threat in order for it to meet the criteria required in the Convention ?
Mr. Chairman, my delegation has openly explained that the need for loud music has been considered necessary in order to prevent communication between detainees while under investigation. It is not a measure used to extract information (or confession), and surely does not therefore fall under Article 1. The question arises whether the Committee considered these aspects of the matter prior to reaching its conclusions.
Similarly, the Committee determined that "hooding under special conditions"" constituted torture, without addressing the question whether the hooding was a measure to extract information or whether it was, as explained by the Israeli delegation, a measure to prevent communication between detainees. Evidently the Committee preferred to base its conclusions solely upon the allegations of the non-governmental organizations, and in so doing, disregarded Israel's authoritative position, for reasons which the Israeli delegation cannot comprehend and which were not detailed in the Committee's conclusions.
In this context, I would add that the Committee's conclusions of last May included a reference to the use of "cold air to chill" in violation of arts 1 and 16, despite the fact that senior Israeli officials have consistently denied the use of such procedure. It is unclear as to whether the Committee considered this denial.
Mr. Chairman, at this juncture permit me to reiterate the categorical statement made by the Israeli delegation at the May 1997 session in acknowledging, without any hesitation or reservation, that the prohibition on the use of torture is incorporated within Israeli law.
As a result, and despite the current predicament of Israel and the pressing need to prevent terrorism, Israeli investigators are never, and have never been authorised to use torture, even if such use might possibly prevent terrible attacks and save human lives. Likewise, it is forbidden to use cruel, inhuman or degrading procedures of interrogation.
Mr. Chairman, Israel has never claimed that its predicament - the struggle against terror - is an exceptional circumstance justifying the use of torture, as referred to in paragraph 2 of Article 2 to the Convention. Clearly, the very existence of this provision in the Convention, as well as the absolute terms in which it is drafted, (including non-justification of torture even during a state of war), require that all of us, pursuant to the rules of interpretation of international treaties, proceed to make an exact and precise interpretation of the definition of torture in Article 1.
Mr. Chairman, this delegation, in its previous statements and reports to this Committee, has gone to some lengths in order to describe the reasoning behind the provision of the 1987 Landau Guidelines enabling the use of "moderate physical pressure". Permit me once again to reassure the Committee that such pressure, by definition, does not amount to "torture" or "cruel, inhuman or degrading punishment". In fact, when formulating the guidelines, the Landau Commission had before it international and regional human rights treaties, travaux preparatoires and other relevant documentation. The Landau Report made explicit reference to the need to comply with their norms. In introducing the analysis of these treaties, the commission stated: We shall now briefly survey the provisions of international conventions relating to the methods of interrogation of persons suspected of terrorist activity. We do so although the State of Israel is not formally bound by these conventions. However, in the chapter of this report in which we shall submit our conclusions and recommendations, we shall take note of what they contain, with the aim of abiding by the general prohibitions they posit.
Clearly, Mr. Chairman, the point of departure of the Landau Guidelines was to place Israel's practice of interrogating detainees within the norms of international law with respect to human rights, and not to bring them into conflict with such law and norms and, for that matter, with this distinguished Committee.
Thus, Mr. Chairman, the general determination by the Committee to the effect that the Landau Guidelines violate the Convention or that the procedures upheld by it constitute a violation of either Article 1 or 16 of the Convention, raises the question of whether a genuine in-depth analysis of any particular act or series of acts attributed to Israel has indeed been carried out. Similarly it may be asked whether the Committee duly noted the sections of our 1997 Special Report, as reiterated in our statement before this Committee, setting out internal GSS guidelines emanating from the criteria provided in the Landau Report. Such guidelines include the following:
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 honour, which deprives him of his human dignity.
There may, however, be individual irregularities in which acts by Israeli security officials have exceeded the norms set out in the Convention as well as the detailed guidelines in the Landau Report. Such cases are duly dealt with by the Israeli authorities and the culprits punished for violating the law.
To summarize Israel's position, let me state very clearly that Israel does not permit or justify torture or cruel, inhuman or degrading treatment. In analysing application of these terms, due consideration has to be given to the context and circumstances as well as the criteria which serve as the basis for the definitions in the Convention.
The definition of torture in Article 1 as inflicting severe pain or suffering indicates that there is exertion of pressure which does not inflict such pain or suffering and does not therefore constitute torture. The reference to cruel, degrading or inhuman treatment in article 16 indicates that there is exertion of pressure that does not amount to such treatment. The dividing lines exist. They are not clear and they cannot be arbitrarily imposed in a general manner.
Mr. Chairman,
The Israeli investigatory authorities agonise over their work. They perform their duty out of harsh necessity. Even then, they take particular care to ensure that they remain within the limits of what is lawful. The need to conduct efficient investigation cannot therefore be disregarded. In order to foil acts of terror, Israel has no choice but to maintain an efficient and dynamic investigative machinery capable of preventing, or at least limiting such attacks in the future, while at the same time fully respecting human rights, Israeli and international law.
Unfortunately, the necessity is not diminishing. Since 1993, when the Declaration of Principles (commonly known as the Oslo Agreement) was signed by Israel and the PLO, 244 Israelis have been killed. During the last year alone, since the last time the delegation of Israel appeared before this Committee, 60 terrorist acts were committed inside Israel. The major ones were the suicide bombing on July 30, 1997, in the central market in Jerusalem, in which 16 people were killed and 169 injured, and the suicide bombing in the center of Jerusalem on September 4, 1997, in which 5 people were killed and 169 injured. All together, during the last year alone, 27 people were killed and 340 injured in terrorist incidents.
Mr. Chairman, permit me to state emphatically, on the basis of exact, factual evidence, that many more persons would have been murdered and injured in additional suicide bombings and acts of terror had the security service not prevented more terrorist attacks. During the last year, several significant terrorist attacks were foiled following the disclosure of information through investigations conducted according to the procedures which we are discussing here today. These are not empty words. During the last year, three major terrorists cells were exposed and dismantled. These groups had made plans and preparations for many horrific acts. They had planned suicide bombings in markets and central bus stations in Jerusalem, Tel Aviv, Haifa, Tiberias and Eilat, as well as in the Ramat Gan diamond exchange. They planned to sieze a foreign embassy, to kidnap soldiers, to take over an office building in one of Israel's two major cities, to commandeer a civilian bus, as well as to kidnap prominent political, legal, academic and media figures. They intended to send booby-trapped video tapes for distribution in Israel.
All of these attempts were foiled through the prompt and careful response of the security forces enabling them to obtain information as quickly as possible, that was essential in uncovering the planned acts of terror. The importance of this work cannot therefore be underestimated or dismissed, and to this end, as I have stated, the Landau Commission determined the criteria of "moderate physical pressure". I must stress again that this information, essential as it was for the saving of lives, was not attained through means of torture or cruel, inhuman or degrading treatment.
Mr. Chairman, despite the apparent difference of views between Israel and this Committee in the past, Israel respects the Committee and has nevertheless taken note of its positions as expressed in its recommendations. I would like to highlight some of the developments that reflect the attention given by Israeli authorities to the work of the Committee.
Since last May, the number of complaints and petitions by detainees under interrogation has decreased substantially. This is important given the fact that unfortunately, terrorism is still rampant and arrests and interrogations are still, of necessity, taking place. At the same time, detainees are free to utilize a variety of legal and administrative remedies, a matter on which we have elaborated in our special report. In this context we explained at the previous session of this Committee the on-going, real-time system of judicial review of interrogation procedures, which has been instituted in Israel. By this unique system, any detainee under interrogation who believes that improper measures are being used against him is entitled to petition directly and immediately to the Supreme Court sitting as a High Court of Justice, and demand that the use of such measures be terminated. If the Court finds that such procedures have been used, and that they constitute torture or cruel, inhuman or degrading treatment, it has the authority to grant the petition and prohibit the use of such procedures. I would stress that this right to submit such a petition directly to the High Court of Justice applies to any person, Israeli or non Israeli, including residents of the territories.
We are not aware of the existence of such a system in other countries, and again we were somewhat surprised that the Committee did not find it appropriate to refer to what is clearly a positive and important aspect of Israel's handling of interrogation procedures.
Mr. Chairman, not only the executive, but also the judiciary have been made aware of last year's discussion in this Committee. The High Court of Justice has scheduled for discussion a number of general petitions concerning the legality of various interrogation procedures, for a hearing to be conducted by 9 judges - a rarity in Israeli law, where most hearings are conducted by 3 judges, and under special circumstances by 5 judges. One hearing has already taken place in this capacity, and the Court has postponed its continuation to this coming Wednesday, May 20 1998, in which specific interrogation procedures will be considered. The special format of the hearing indicates the gravity with which the Court regards the matter and will consequently give particular weight to its ruling. . Contrary to NGO publications, some of which were used by this Committee as the basis for last year's discussion, the High Court of Justice has never condoned nor has it permitted torture. In fact, the Court has repeatedly stated, and I now quote from the Hamdan decision reproduced in Israel's special report discussed last year, in which the Court did not prevent the use of exceptional interrogation procedures, in light of the fact that the petitioner possessed extremely vital information the immediate disclosure of which would save human lives and prevent the most serious acts of terror. The Court, in canceling the interim injunction against the use of pressure, stressed that this "is not tantamount to permission to use interrogation methods against the petitioner which are against the law."
Finally, Mr. Chairman, I would like to review Israel's 2nd periodic report from the point of view of developments on the legislative level. The report reviews extensively the recently proposed bill for the regulation of GSS activities. This bill has passed the first hearing and is now under consideration by a parliamentary committee. This bill provides for the expansion of checks and controls over the activities of the GSS. These checks and controls include review procedures not only by the GSS comptroller and the State Comptroller, but also by a ministerial committee and by a parliamentary committee to which reports must be submitted every three months.
Among a number of legislative reforms which have taken place in recent years is the enactment of the Basic Law: Human Dignity and Liberty, reviewed in our Report. Following the enactment of this Basic Law, several significant legislative efforts have been made in the area of arrest and detention, culminating in the enactment of a series of interrelated statutes, as well as new standing orders for the Police and Prisons Service. The most significant of such recent statutes for the purposes of our discussion, the Criminal Procedure (Powers of Enforcement - Arrest)
Law, 5756-1996, comprehensively treats all phases of the detention process with the declared purpose of "ensuring maximal protection of a person's liberty and rights" The provisions of the new statute apply to arrest and detention under any law, unless that other law specifically indicates otherwise.
Most of the developments concentrate, naturally, in the executive branch. Thus, various issues have been submitted for consideration by interdisciplinary committees. The conclusions and recommendations of these committees have already been adopted and implemented, at least partially. For example, the Kremnitzer Committee has examined the response to acts of violence by police personnel. The recommendations of this committee, covering both institutional, educational, and disciplinary measures are being implemented and are proving effective in eliminating or minimizing instances of police brutality.
Another issue discussed broadly in the report is the mechanism for review of the activities of law enforcement officials. The Israeli police, the prisons service, the GSS and the Israeli Defense Forces are all subject to various mechanisms, and their personnel may be subject to a variety of sanctions, from internal administrative steps to civil criminal procedures. In recent years, an emphasis has been placed on the need to ensure impartiality of the reviewing authorities, for example by separating the authority tasked with investigating the conduct of personnel, from the body in which they act. Thus, the investigation of allegations against police officers is carried out by a department of the Ministry of Justice and not by police authorities. This department also serves as a final instance with regard to criminal allegations against GSS personnel.
Mr. Chairman, our detailed report is before the Committee, as are our previous reports and statements, and I will not elaborate the matters included therein. All our reports and statements are inter-related and constitute, together, an integrated whole which is intended to provide a comprehensive picture of Israel's implementation of the Convention. In my statement today, I have attempted to complement our series of reports and statements by sharing with you some of the quandaries with which Israel is confronted and which would challenge any democratic society adhering to the rule of law.
We trust that the Committee, being as it is a group of experts in this vital field, will give due consideration to all these reports and statements, and will address the very real legal as well as practical dilemmas which arise in the course of day-to-day implementation of the Convention. We view the reporting process set out in the Convention as a process of dialogue, which by definition is two-way, and must clearly be substantive, genuine and directly relevant. Mutual exchange of views, accompanied by constructive bona-fide analysis and discussion will surely assist us all in better achieving the purposes of the Convention, for which purpose we are all here today.
Thank you Mr. Chairman and distinguished members of the Committee.