"The High Court has taken an important step toward ending torture and
ill-treatment in Israel. It's up to Minister Beilin to give the ruling teeth." Hanny Megally
Executive director of the
Middle East and North Africa division of Human Rights Watch
Israeli Justice Minister Should Start Torture Prosecutions
HRW Press Release, September 9, 1999
|
Letter to Beilin
September 9, 1999
Dr.Yossi Beilin
Ministry of Justice
State of Israel
29 Salah-a-din Street
P.O. Box 1087
91010 Jerusalem
Israel
Dear Minister Beilin,
Human Rights Watch warmly welcomes the September 6, 1999 ruling of the
High Court of Justice in cases H.C. 5100/94, H.C. 4054/95, H.C. 6536/95,
H.C. 51888/96, H.C. 7563/97, H.C. 7628/97, and H.C. 1043/99 on the
legality of General Security Service's (GSS) use of "physical means"
during interrogation. The court appropriately addressed both the
general practice and specific interrogation methods that violate the
absolute prohibition of torture or cruel, inhuman, or degrading
treatment or punishment in the International Covenant on Civil and
Political Rights (ICCPR), to which Israel has ratified.
The ruling is particularly noteworthy in its rejection of the state's
claims that the government has the power to issue directives authorizing
"the use of liberty infringing physical means during the interrogation
of suspects suspected of hostile terrorist activities," and its finding
that "the individual GSS investigator-like any police officer- does not
possess the authority to employ physical means which infringe upon a
suspect's liberty during the interrogation, unless these means are
inherently accessory to the very essence of an interrogation and are
both fair and reasonable."
The ruling certainly represents an important step forward in the effort
to end the torture or ill-treatment of detainees in Israel and to bring
Israel closer to the fulfillment of its international obligations.
Nonetheless, it falls short of the absolute prohibition of torture or
cruel, inhuman, or degrading treatment or punishment required by the
ICCPR. We are concerned that the ruling provides at least two
possibilities under which the state would be allowed to violate this
absolute prohibition. First, the ruling leaves open the possibility
that a GSS interrogator who tortured a prisoner and who then invoked the
"necessity" defense outlined in article 34(11) of the Penal Law (1977)
could escape punishment. Furthermore, the ruling does not provide clear
guidelines for when the Attorney General should prosecute such a
torturer, but merely notes that "the Attorney General can instruct
himself regarding the circumstances in which investigators shall not
stand trial, if they claim to have acted from a feeling of ‘necessity.'"
Second, the ruling accepts the possibility that the legislative branch
may pass legislation legalizing torture or cruel, inhuman, or degrading
treatment or punishment "provided, of course, that a law infringing upon
a suspect's liberty ‘befitting the values of the State of Israel,' is
enacted for a proper purpose, and to an extent no greater than is
required."
As Minister of Justice you are in a position to take a number of
concrete steps to minimize the possibility that state-sanctioned torture
or ill-treatment continues in Israel. First, we urge you to instruct
the Attorney General to investigate and prosecute all individuals
responsible for the torture or cruel, inhuman, or degrading treatment or
punishment of prisoners. Second, you should immediately instruct the
Division of Legislation to draft new legislation regulating the GSS that
explicitly prohibits the use of torture or ill-treatment and to ensure
that any other draft GSS legislation meets this standard. The draft
legislation should include a definition of torture fully consistent with
international human rights law, as well as clear and public guidelines
governing interrogation procedures.
Mr. Beilin, the decision of the High Court of Justice provides a unique
opportunity for bringing to an end the practice of torture in Israel.
By acting now you can help ensure that this aim becomes a reality.
We look forward to hearing from you soon.
Sincerely,
/s/
Hanny Megally
Executive Director
Middle East and North Africa Division
cc: Attorney General Elyakim Rubinstein
|
Related Material
Israeli High Court of Justice Torture Trial
HRW Backgrounder, May 99
Israel Uses Torture, Detention, and Hostage-taking to Violate Civil and Political Rights
HRW Press Release, August 98
Israel: Human Rights Developments - HRW World Report 1999
|