IX. REASONS WHY TORTURE CONTINUES DURING THE INTIFADA

Palestinian security forces were torturing detainees long before the current Intifada. Nevertheless, some of the key factors identified below that facilitate the persistence of torture have been exacerbated in today's political climate.

Extracting Confessions

...any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 15¹¹⁸

The prosecution in State Security Court trials relies heavily on signed, uncorroborated confessions as the only or primary evidence (see below). There is intense pressure on the security forces to extract information from "security" detainees that will lead to other alleged informants before they pass information to Israeli security forces. This encourages security forces to use whatever means they consider necessary to obtain a confession, including torture.

Fateh Sorour, the chief judge of the State Security Court, initially told Human Rights Watch that the court did not rely unduly on confessions, but later in the interview, when explaining why there are delays in transferring detainees from the security forces to his jurisdiction, said that "the most important thing is for the security forces to get the confession." The former detainees interviewed by Human Rights Watch were tortured either to confess to cooperating with Israel or to agree to incriminate another person. Not only do international standards prohibit absolutely the use of confessions extracted under torture, but such confessions are also notoriously unreliable. As Khaled al-Qidra, the state security attorney general conceded to Human Rights Watch, "If I was tortured I would say anything."

Impunity and Failure of Remedies

If an investigation ... establishes that an act of torture ... appears to have been committed, criminal proceedings shall be instituted against the alleged offender.

U.N. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 10
An order from a superior officer or public authority may not be invoked as a justification of torture.

U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 2(3)

The systematic failure to prosecute and punish those responsible for torture and ill-treatment can only have sent a powerful message to the security forces that their leaders will acquiesce in the mistreatment of detainees or even that they encourage it if it produces confessions. ¹¹⁹ Torture and ill-treatment by law-enforcement and security officers is an example of the grossest ill-discipline and can only erode the chain of command. Torture, when it is not seen as the result of ill-discipline, at best reflects tolerance by, and at worst, an express policy of, security force commanders that torture may be used to extract information or to punish detainees.

Despite the stream of allegations of torture over the last twelve months, no member of the security forces or other PA officials is known to have been prosecuted for mistreating a detainee since the Intifada began. In the preceding years officers were put on trial only in rare and highly public cases.¹²⁰ Such trials were often secret and summary and failed to explore the real chain of command and responsibility for the acts.¹²¹

Mistreatment of detainees is usually dealt with as an internal matter by each security agency in its own way. The head of the General Intelligence Service in the West Bank, General Tawfiq Tirawi, told Human Rights Watch that his staff have been clearly instructed that torture is forbidden, that his officers monitor the methods of interrogation employed, and that ten to twelve members of the GIS have been disciplined in the last seven years. The GIS, however, declined to provide details of these cases. The head of international relations for the GIS in the West Bank, Walid Abu Ali, told Human Rights Watch, "if we are seen to discipline officers for ill-treatment of detainees the public will not like it," and "if I was being disciplined I would not like it to be known publicly." With such opacity it is difficult to find out the truth and punish abuses and stop torture.

Human Rights Watch welcomes any measures by security force commanders to eradicate torture. However, internal confidential disciplinary procedures are inadequate to stop such a serious crime. If punishment is to be an effective deterrent and instill public confidence in the security forces, the cases must be made public, the investigation must be impartial, independent, and thorough and its results released; the perpetrators must be prosecuted under criminal law; the trial must be fair; and the punishment must reflect the seriousness of the offense.

Many former detainees-and their families-with whom Human Rights Watch spoke feared reprisals if their names were used publicly. Victims and families are reluctant to lodge official complaints. If they do complain they can obtain little or no redress. According to the PICCR, many of the complaints of mistreatment it has received have produced "no serious investigations." The PICCR reported that it generally receives only an abrupt answer from the security agency concerned: "the complaint of the citizen has no grounds."¹²²

Attitude to Collaborators During the Intifada
When vigilantes summarily kill people accused of collaboration, with or without evidence but always with impunity, when families can be ostracized by an anonymous leaflet accusing a member of "collaboration," when some prayer leaders refuse to say prayers in the mosque for the victim of a street killing, when the State Security Court fails to respect the basic rights of suspected collaborators; it is not surprising that anyone labeled a collaborator is seen as deserving whatever treatment they receive. The security forces seem to believe that the public and PA authorities will turn a blind eye or even encourage the torture of alleged collaborators, to punish, to exact revenge, and to deter others. Yet it is the obligation of the PA to uphold the rule of law and the human rights of all detainees, even in the face of strong public sentiment encouraging abuses.

Incommunicado Detention

...communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.

U.N. Body of Principles, Principle 15

Detainees are routinely kept in incommunicado detention while they are under interrogation. Human Rights Watch spoke with former detainees who were tortured while they were held incommunicado for up to four months. As discussed earlier (see Arbitrary Arrest above), detainees are not brought promptly before a judge. Families are not allowed to see a detainee during the interrogation period, except if they can informally call on personal contacts in the security forces. Private lawyers and lawyers from human rights organizations rarely have access at this stage, especially to "security" prisoners. During this Intifada even the official PICCR is being refused access. The nongovernmental human rights organization Al-Haq told Human Rights Watch in September that "for the last two to three months we have been paralyzed in our work" because of the lack of access and the refusal of security force officers, especially the MIS, to meet with its lawyers.

In the Palestinian areas, as in other parts of the world, Human Rights Watch has noted the essential link between denying detainees access to the outside world-to judges, families, lawyers, independent doctors and to agencies such as the International Committee of the Red Cross (ICRC)-and the prevalence of torture. Torture flourishes in conditions where detainees are cut off from contact with the outside world and are entirely under the power of their interrogators, without any means of recourse or redress if they are being held arbitrarily or mistreated. Two of the deaths in custody described earlier occurred after seven days of incommunicado detention, one after three days and one after eighteen days. Under the PA, as elsewhere, the risk of torture is heightened by the fact that the agency that arrests and interrogates the suspect also holds them in its own detention center, without outside supervision.

In cases investigated by Human Rights Watch, the security forces sometimes sent detainees they had mistreated to doctors, some of whom warned that the detainee could be severely harmed by further mistreatment. The doctors themselves, however, are part of the system and lack sufficient independence or anyone reliable they can turn to if they suspect or see evidence of torture. Sometimes they fear for their own safety if they act on the information. The chief judge of the State Security Court told Human Rights Watch he insists that every suspect transferred to his court be examined by a doctor every forty-eight hours, with the report put in the file that he later sees. This could be one useful safeguard against torture if it was in force during the period of interrogation (which usually ends by the time the case is transferred to the court) if the doctor was independent, and if the reports were reviewed frequently and acted on quickly by a judge.

The PA has signed an agreement with the ICRC allowing access to all detainees kept in its detention centers. This is one essential safeguard against torture in relation to "security" and "political" prisoners who would be of concern to the ICRC. Unfortunately, however, the ICRC is not currently visiting detainees held by the Military Intelligence Service because it has apparently refused the ICRC's usual conditions. The MIS should urgently be brought into line with the other security agencies.

Instruction and Training
Most torture would stop if political leaders and the heads of security forces demonstrated the will to combat it, including acting decisively against abusers. Many Palestinian lawyers and nongovernmental organizations believe that security forces personnel often employ methods of abuse of which they have direct experience, methods similar to those used against them when they were held in Israeli detention centers. Some level of mistreatment in detention also seems to be considered "normal" by many Palestinians. `"When we ask [released] detainees how they have been treated they say OK," one PICCR lawyer explained to Human Rights Watch, "They do not consider shabah or falaqa torture." Proper training of new staff and regular on-the-job training of officers and subordinates could contribute to building a culture of respect for the human dignity of all detainees. A starting point would be to evaluate seriously the impact of internationally-funded training programs for its security forces since the PA was established.

Such training, if it is to have the desired effect, must be preceded by clear and mandatory instructions from the top echelons of the PA leadership and security force commanders. Various internal security force circulars have warned against the use of violence against detainees, but these often do not specify what behavior is prohibited and they do not have the force of law. Human Rights Watch was given a GIS circular entitled "Detention and Investigation Procedure" No. 679/41, dated July 2, 1997. It contains useful instructions about complying with the law on arrest, detention, and interrogation, most of which are commonly violated. Two brief but direct instructions about treatment of detainees require that "the detained person should receive good treatment throughout" and that "No form of violence may be allowed as a means of investigation." There is no detail, or indication of any consequences for ignoring these instructions. It is not clear either how this document is disseminated or used.

118 In the West Bank, Article 208 of the Jordanian Penal Code currently provides a punishment of three months to three years of imprisonment for using violence or compulsion to extract a confession or information. The Draft Palestinian Penal Code, not yet ratified by the president, would forbid the use of force to obtain a confession, but would only declare it to be a misdemeanor, which is normally considered a more minor crime-see Article 109(b). The Draft Palestinian Basic Law would also prohibit torture to extract confessions.

119 Although as referred to above current Palestinian law prohibits violence to extract torture, the Draft Law for the Prevention of Torture of those Arrested, Detained or Imprisoned, rejected by the PLC in May 2000, would have introduced a broader and clearer prohibition against torture which does not yet exist in the PA criminal law. Article 13 of the Draft Palestinian Basic Law would also prohibit the use of violence by state employees to frighten or cause bodily harm.

120 For example, one day after the death in custody of Nasser Abed Radwan on June 30, 1997, from blows to the head, a military court convened and convicted and sentenced three officers to death and three others to prison terms. The trial, conviction and sentencing so swiftly after the death suggested an effort by the authorities to mollify critics and public uproar. [Human Rights Watch, World Report 1998 (New York: Human Rights Watch, 1998)]. In 1998, Amnesty International said it knew of four cases where members of PA security forces had been tried after a death in custody, of three cases within a matter of hours or days. See Amnesty International, Five Years after the Oslo Agreement: Human Rights Sacrificed for "Security," September 1998, p. 30 (AI Index: MDE 02/04/98).

121 Authorities occasionally publicly denounce torture, such as in the newspaper advertisements taken out in 1997 by Police Chief Ghazi Jabali that instructed security forces to stop violence and warned: "We will not be tolerant of anyone, no matter what their rank, if there is a complaint about him from a citizen who was beaten." Human Rights Watch, World Report 1998.

122 PICCR, Sixth Annual Report, p. 147.