COMMITTEE AGAINST TORTURE HEARS RESPONSE OF ISRAEL

The Committee against Torture this afternoon heard the response of Israel to questions raised by Committee Experts on the second periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to questions raised by the Committee members on 5 May, the delegation, which was led by Shai Nitzan, Deputy State Attorney for Special Affairs of Israel, addressing concerns that no criminal indictments had been brought on 600 complaints against Israel Security Agency interrogators, said that many of the cases had been closed due to lack of an evidentiary basis. In the Israeli criminal system, indicting a person required sufficient evidence that would enable the prosecutor to prove his guilt beyond a reasonable doubt. Generally, when the only evidence was the suspect's testimony that contradicted the interrogator’s, indictment became difficult. Every person interrogated and detained by the Israel Security Agency had to be checked by an independent doctor and the records were kept in a special file. Those records, of course, were part of the evidence taken into consideration in an investigation. However, in the 600 complaints brought against the Israel Security Agency over the course of nine years, there had been no substantiating medical evidence of those claims. Moreover, in its decision regarding ill-treatment in Facility 1391, the Supreme Court had found that the allegations had been examined and had not warranted criminal proceedings. The Israel Security Agency had not used that facility for years and no detainee had been held there since September 2006.

Turning to allegations that Israeli Defense Forces had attacked hospitals, medical personnel and ambulances during operation "Cast Lead", the delegation stressed that Israel's careful examination of those claims had showed that the Hamas "terrorist organization" had deliberately placed itself and its rocket launchers near facilities with special status and protection under international law, such as hospitals. Similarly, Hamas "terrorists" hid inside hospitals and used ambulances to transfer ammunition and terrorists from place to place. Yet, "even in the height of fierce battle", Israeli Defence Forces at all levels had been directed to take extra caution to avoid harming medical crews and facilities. The investigation had clearly showed that the Forces had been well aware of and had respected that special status. The main allegation against Israel was that it had bombed a school belonging to the United Nations and killed 42. The United Nations itself had agreed that the bomb had not fallen within the school grounds; it had fallen in a location nearby from where terrorists had been firing. Moreover, following investigations, it was not 42 that had been killed but much less, and most of those killed had been Hamas "terrorists".

In questions and comments, Fernando Mariño Menendez, the Committee Expert serving as Rapporteur for the report of Israel, insisted that the Convention, according to The Hague Convention, was applicable in the occupied territories. He asked if there were an interrogation manual for Israel Security Agency and Israeli Defense Forces detailing accepted interrogation practices. He also reiterated concerns voiced yesterday regarding those in need of medical treatment who had not been accepted into Israel. Felice Gaer, the Co-Rapporteur for the report, questioned how none of the complaints against Israel Security Agency were justified. Other Experts asked a number of questions, including how many had been physically and psychologically disabled by military operations in the occupied territories; concern that the prohibition against settlements covered only "private" Palestinian land; a return to the policy of punitive house demolitions; and reports that the International Committee of the Red Cross did not have access to all Palestinian detainees.

On the recent military operation in Gaza, an Expert said that, according to a recent report, 1,300 people were killed, including women, children and the elderly, which surely seemed a case of excessive force. He also noted that a United Nations board of inquiry had published a report yesterday that had called Israel "negligent" and "reckless" in its disregard for civilian lives during their invasion of Gaza. He asked for details of the special precautions used by the Israeli Defense Force with regard to protected places, such as hospitals and schools.

The Committee will submit its conclusions and recommendations on the report of Israel towards the end of the session on Friday, 15 May.

As one of the 146 States parties to the Convention against Torture, Israel is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes at 10 a.m. on Thursday, 7 May, it will hear the answers of Honduras to the questions posed by Experts at this morning's meeting.

Response of Israel

Responding to a series of questions raised by Committee Experts on 5 May, the delegation of Israel, with regard to the application of the Convention to the West Bank and the Gaza Strip, said that this had been the subject of considerable debate over the past years. In its report, Israel had not referred to the implementation of the Convention in those areas for several reasons, ranging from legal considerations to practical reality. Critical to assessing and interpreting Israel's obligations pursuant to the Convention was the changing reality and the recent dramatic developments on the ground since 2001, including Israel's disengagement initiative of 2005, involving the full withdrawal of all Israeli forces, the dismantling of its military government and the evacuation of over 8,500 civilians from the Gaza Strip, and the rise of a Hamas-led terrorist administration committed to violence and the destruction of Israel.

Israel shared the positions of a number of other States, which was also supported by the negotiating history of the Convention, concerning the extraterritorial inapplicability of the Convention to areas beyond their national territory, areas which were governed by a separate body of law, primarily the law of armed conflict and the conduct of hostilities. Any attempt to insist on the applicability of the Convention to the West Bank or to Gaza failed to take account of the unique status of those areas, and was particularly compelling with regard to Gaza. Following Israel's disengagement initiative, and the dissolution of the military government, Israel could clearly not be said to have "effective control" in the sense envisaged by the Hague regulations.

Despite this, and without prejudice to Israel's approach on the scope of the Convention, both with regard to territorial and substantial aspects, the delegation intended to respond to questions relating to those territories.

Regarding the total prohibition on torture, and with allegations raised against Israel Security Agency interrogators, that they used methods prohibited by the Convention, the delegation insisted that Israeli penal law forbade totally the use of force, violence or threats against a person for the purpose of extorting from him a confession of an offence or information relating to an offence. It was Israel's position that that section of the Penal Code covered all the components of the definition of torture in the Convention, including causing mental suffering.

With regard to the “necessity defence”, the delegation emphasized that the Supreme Court had decided unequivocally that the Israel Security Agency had no authority under Israeli law to use physical means of interrogation against terrorist suspects. The court specifically held that there was a "prohibition on the use of 'brutal or inhuman means' in the course of an interrogation. Human dignity also includes the dignity of the suspect being interrogated ... These prohibitions are 'absolute'." It went on to stress that there was no room for balancing.

Some of the Experts had asked about the fact that 600 complaints had been submitted against Israel Security Agency interrogators and no criminal indictments had been filed. Contrary to what had been implied, the fact that there had been 600 complaints did not necessarily mean that 600 indictments had been filed. Many of the examination cases had been closed due to lack of an evidentiary basis for the accusations. In the Israeli criminal system, indicting a person required sufficient evidence that would enable the prosecutor to prove his guilt beyond a reasonable doubt. Generally, when the only evidence was the suspect's testimony that contradicted the interrogator’s, indictment became difficult.

In the vast majority of the 600 cases the relevant investigator did not claim that he used force because of necessity, but rather that no force had been applied, and the Inspector had not found evidence to refute that, the delegation added.

Only a few weeks ago, an affidavit had been submitted to the Supreme Court by the Head of the Investigation Department in the Israel Security Agency and had declared that "The cases where Israel Security Agency interrogators considered in recent years that the necessity defence existed and acted according to this assumption were very few and exceptional, constituting a miniscule percentage of all cases where suspects were investigated in suspicion [sic] of terrorist activity".

With regard to accountability of Israel Security Agency personnel under the Israel Security Agency Law, the delegation noted that Israel Security Agency employees did not bear criminal or civil responsibility for any act or omission performed in good faith and reasonably by them within the scope and performance of their function. Clearly, a criminal or disciplinary offence was not performed in good faith and thus the provision did not apply to such performances. Indeed, none of the complaints submitted against Israel Security Agency investigators had been dismissed on this basis.

In terms of guarantees of independence of the Inspector of complaints against Israel Security Agency interrogators, the delegation said that the Inspector operated under the sole supervision of a high ranking attorney of the State Attorney's Office that oversaw all the Inspector's actions and no Israel Security Agency official could interfere with his work. Moreover, with regard to the allegation that the number of complaints brought had gone down due to a lack of indictments, in actuality the number had slightly decreased, but that decline had not been substantial.

Regarding administrative detention, the delegation drew attention to the fact that issuance of administrative detention orders against detainees who posed a danger to the security of the area was recognized by international law and was in full conformity with the Fourth Geneva Convention. That measure was only used in cases where there was corroborating evidence that an individual was engaged in illegal acts that endangered the security of the State and the lives of civilians, and each order was subject to judicial review with a right to appeal to the Military Court of Appeals, and to a subsequent petition to the Israeli High Court of Justice. Such detentions were limited to six months and extensions required a re-evaluation of the relevant intelligence, as well as further judicial review and appeal.

Every administrative detainee had the right to meet with a lawyer of his choice from the first day of the administrative detention and there was no limit to such meetings.

Regarding a case in which an administrative detention had been extended up to 13 times, that was a very rare case and the only reason to extend an administrative detention so many times was that due to clear and very convincing evidence the immediate release of the person would endanger the lives of civilians, the delegation stressed.

As to a review system to ensure that the rights of detainees were maintained, the delegation said that all evidence which could be revealed had to be given to the detainee and to his lawyer. The remaining evidence, which included confidential evidence that could not be revealed for security reasons, had to be brought before the judge, who was entitled also to investigate the expert responsible for collecting such evidence, about the evidence's credibility.

Explaining the workings of the 2002 law on the incarceration of unlawful combatants, the delegation noted that the law established in domestic Israeli legislation the inherent right of a State under international law of armed conflict to detain persons who took part in hostilities and endangered the security of the State, while not being entitled to prisoner of war status. That incarceration was consistent with the administrative detention provisions of the Fourth Geneva Convention. At present there were only 12 persons incarcerated under this law, all of whom were residents of the Gaza Strip. Judicial review of the incarceration took place in a civil district court every six months, and the decision could be appealed before the Supreme Court. In a June 2008 the Supreme Court decision rejecting an appeal submitted by two detainees, it held that the law met the standards of both Israeli constitutional law and international humanitarian law.

It was Israel's position that in light of the current security situation, the use of that method was obligatory, and was essential to preventing terrorist activity, the delegation underscored.

Regarding allegations that Israel had not enabled Palestinians from the Gaza Strip to enter into Israel to receive medical care during operation “Cast Lead”, the delegation noted that in recent years, including since Hamas had taken over the Gaza Strip, Israel had maintained access to the residents of the Gaza Strip that required medical care. However, when imperative security considerations arose, people were not allowed to enter Israel unless medical treatment was essential. Statistics showed that, during 2007-2008, approximately 270,000 patients and those accompanying them had been allowed entry for medical treatment.

The existence of the security fence did not hinder access to medical care by residents of the West Bank, the delegation added.

In response to the specific question about the case of someone who was at risk for losing a limb or eyesight, an examination of the Supreme Court ruling in question showed that the Court attached great importance to such a risk and had stressed that in such cases the State should make every effort to help that person.

Turning to allegations that Israeli Defense Forces had attacked hospitals, medical personnel and ambulances during operation "Cast Lead", the delegation stressed that Israel's careful examination of those claims had showed that the "Hamas terrorist organization" had deliberately placed itself and its rocket launchers near facilities with special status and protection under international law, such as hospitals. Similarly, Hamas "terrorists" hid inside hospitals and used ambulances to transfer ammunition and terrorists from place to place. Yet, "even in the height of fierce battle", Israeli Defence Forces at all levels had been directed to take extra caution to avoid harming medical crews and facilities. The investigation had clearly showed that the Forces had been well aware of and had respected that special status. In addition, the Israeli Defence Force had operated a medical situation room in Gaza which coordinated the evacuation of bodies, the wounded and trapped civilians from the combat zone, coordinating 150 requests.

Yet, "in certain instances, incidental harm to medical facilities was caused when Israel attacked Hamas objectives in response to launching targets, but never intentionally", the delegation said. "Similarly, when ambulances clearly appeared to transfer ammunition or terrorists, Israel had been compelled to respond," the delegation added.

On the issue of upholding provisions of Article 3 of the Convention, the delegation emphasized that Israel was fully committed to the principle of non-refoulement. Here, it should be borne in mind that the vast majority of infiltrators that had entered Israel in recent years had originated from African countries that had no borders with Israel. They had entered unlawfully, directly from Egypt, a country in which they had already found protection or could have done so. Thus, those people could generally be returned to the country of "first asylum", a practice that complied with United Nations Refugee Agency conclusions. Nevertheless, if an infiltrator from Egypt raised a substantiated claim that there was a risk he would face torture in Egypt, he would not be returned there until a comprehensive examination was performed, even if his actual asylum claim was baseless.

As for gradual implementation of the law providing for video recording of suspects during investigations, that was owing to budgetary limitations, the delegation said. To date the law did not apply to Israel Security Agency and security-related interrogations, but that exception was only valid until December 2010.

Regarding the issue of safeguarding minors' rights, in accordance with international law, the Commander of the Israeli Defense Forces in Judea and Samaria respected, unless absolutely prevented, the laws previously in force in the area under his authority, namely Jordanian Law. According to the latter, a person became criminally liable at 9 years. However, the Military Commander had issued ordinances to establish initial criminal liability at 12. Specific protections were also implemented in cases involving minors, including the provision of legal representation in all cases; refraining, to the extent possible, from postponing legal counselling; and minimizing the detention period prior to a court hearing. Moreover, each arrest of a minor required the specific preliminary approval of the Chief of Military Prosecution in Judea and Samaria.

The competent jurisdiction for dealing with minors in the West Bank lay with the Military Courts. While the Military Courts System in the West Bank did not provide designated courts for minors, a draft bill to establish a youth court was currently under review.

Minors were held separately from adult prisoners and were not held in cells alone as a punishment or for coercing confession. Holding a minor in a cell alone was done only in exceptional cases where the minor threatened to harm himself or others. Minors routinely met with International Committee of the Red Cross representatives and medical staff. As of April 2009, there were 378 minor security-related inmates in the Prison Service detention facilities. In addition, 10 minors were in administrative detention. All minor administrative detainees were males and over 17 years old.

Discrepancies in the age of adulthood between Israel and the West Bank were owing to the domestic law of the West Bank, as Israeli laws did not apply there, the delegation explained.

Addressing concerns that the Israeli Defense Force had itself conducted the investigation on allegations arising out of operation “Cast Lead”, the delegation said the process of examination involved a series of operational investigations which were the accepted procedure in the Israeli Defence Forces and other Western militaries. They had been carried out by five expert investigators at the rank of colonel who had no direct involvement with the incidents in question. The delegation emphasized that the review was ongoing.

Regarding the events of October 2000 while during wide scale riots 13 Arab citizens had been killed by the police, the report explained in detail that there had been insufficient evidence to indict any police officers, the delegation reiterated. In two cases there might have been additional evidence following an autopsy, but since the families opposed the autopsies, they could not proceed.

Addressing concerns that 34 Arab Israelis citizens had been killed during riots following the October 2000 events without any indictments against police officers, the delegation said that, according to the Department of Investigation, there had been only 15 cases of Israeli Arab casualties committed in Israel by Israeli Police Officers that had been reported to the Investigation Department, and in all those cases an investigation had been conducted. Out of those cases, one case was closed due to an unknown felon; three were closed due to a lack of evidence; six were closed due to a lack of guilt; and in five cases criminal indictments were filed with district courts, which subsequently held that the police use of force had been justified.

On settler violence against Palestinians, Israel had full jurisdiction over such cases, the delegation confirmed, and indeed hundreds of investigations were opened annually. A special inter-ministerial team had been formed to supervise that issue. According to recent police data, in 2007, 491 police investigations concerning disturbances of the peace by Israelis in the West Bank had been opened, and 57 indictments had been filed against 73 defendants. During 2008, 525 police investigations had been opened, with 106 indictments filed against 140 defendants.

In addition, administrative measures were carried out against Israeli settlers in appropriate cases, including limitation orders on their movement in the West Bank, the delegation added.
As for settlements established on private Palestinian territories, that was forbidden, the delegation insisted. Many illegal outposts that had been established on private Palestinian land in the past years had been evacuated, entailing fierce confrontations between the security forces and the settlers in several cases.

On violence inflicted by Palestinians on other Palestinians in the Gaza Strip, the delegation said Israel had no jurisdiction over such cases.

Finally, regarding the Supreme Court decision relating to ill-treatment in Facility 1391, the delegation said that Court had found that the allegations had been examined and had not warranted criminal proceedings. Moreover, the Israel Security Agency had not used that facility for years and no detainee had been held there since September 2006.

Questions by Committee Experts

FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Rapporteur for the report of Israel, insisted that the Convention, according to the Hague Convention, was applicable in the occupied territories. One position defended by a number of international jurists, and upheld by the International Criminal Tribunal for the Former Yugoslavia, was that the prohibition of torture was a general and customary norm of international law, which could not be suspended in time of war. Moreover, anyone acting on Israel's behalf had to respect the prohibition against torture and other cruel, inhuman or degrading treatment or punishment. The legalese concerning whether the occupied territories were under Israel's express administration did not negate the duties of its agents therefore.

Was there an interrogation manual for Israel Security Agency and Israeli Defense Forces detailing accepted interrogation practices, such as the United States had issued? Mr. Mariño Menendez felt that that was one tool that could help clarify the situation.

On the “necessity defence”, it appeared that the applicability of that defence was established on a case-by-case basis. In a hypothetical case in which there had been many complaints of unusually harsh interrogation techniques used and if there were assertions from monitoring and oversight bodies that those techniques were necessary, Mr. Mariño Menendez was still concerned that assertion of necessity could be used to approve such techniques in practice.

Was there a public land register for ownership of land in East Jerusalem, Mr. Mariño Menendez asked?

Finally, Mr. Mariño Menendez reiterated his concerns voiced yesterday regarding those in need of medical treatment who had not been accepted into Israel for that purpose.

FELICE GAER, the Committee Expert serving as Co-Rapporteur for the report of Israel, asked about Israel's views on the United Nations Office of Legal Affairs position on the use of lex specialis that had been presented to the Committee in 2001.

Ms. Gaer questioned the information that none of the investigations against Israel Security Agency interrogators had been dismissed on the basis that they were acting in performance of their duties. While understanding that some allegations might be dismissed as having a lack of basis it seemed unlikely that none of the allegations would have been found to be justified.

With regard to non-refoulement, Ms. Gaer found the use of "infiltrators" in Israeli law, which was a military term, of interest. She asked if Israeli had a coordinated returns policy and what the follow-up had been on those returns. She would appreciate any information on the status of those returned. Moreover, were relevant staff trained on the Convention?

Ms. Gaer asked for clarification as to whether Palestinian minors from the West Bank held in Israel were held separately from adults, and asked how many such cases existed.

On the 15 Arab citizens who killed by Israeli Police Officers, Ms. Gaer asked about some further details of the five cases where indictments were brought.

Finally, Ms. Gaer reiterated her request for some sense of how many family visits were denied to Palestinian detainees. The delegation had said it was a very small amount. Even if they did not have exact numbers, perhaps they could give a percentage?

Other Experts asked a number of questions, including how many had been physically and psychologically disabled by military operations in the occupied territories; concern that the prohibition against settlements covered only "private" Palestinian land; a return to the policy of punitive house demolitions; a response to the allegations of ill-treatment in the report of the Special Rapporteur on the occupied Arab territories; the timeframe for detainees to be examined by a doctor, and a recommendation that detainees be examined before and after interrogations; an overly lenient term of three years imprisonment for officials who had committed abuses, including torture, but had claimed superior orders; and reports that the International Committee of the Red Cross did not have access to all Palestinian detainees.


On the recent military operation in Gaza, an Expert said that, according to a recent report, 1,300 people were killed, including women, children and the elderly, which surely seemed a case of excessive force. He also noted that a United Nations board of inquiry had published a report yesterday that had called Israel "negligent" and "reckless" in its disregard for civilian lives during their invasion of Gaza. In that connection, Israel said that the Israeli Defence Force had taken special precautions not to fire on protected places, such as hospitals and schools and he asked for details of what those had entailed.

Response by Delegation

Responding to additional questions raised, the delegation said that Prosecutors dealing with Israel Security Agency cases did not mean it was an internal process; the Prosecutors were a separate part of the Ministry of Justice. Those reviews could be appealed to the Supreme Court, which could look into both procedural and substantive issues contained in the complaints.

The delegation clarified that, indeed, Israeli Criminal Law was always relevant to what was done in the territories by an Israeli citizen. In the West Bank, anything that an Israeli did, including an act of torture, would be subject to Israeli law.

There was a land registry in the territories as well as in East Jerusalem. Not all the land had been registered. The work was ongoing; perhaps half of the land had been registered so far.

Responding to the claim that 40 per cent of the settlements built were on private property, the delegation thought that that figure was much less. In Israel itself, 80 per cent of the land was owned by the Government. Following a famous 1979 court decision, it was not possible to build settlements on private property. The only reason to confiscate property was if there were security needs that were essential.

On whether people with medical needs were not allowed into Israel during operation “Cast Lead”, the delegation reiterated that normally such persons were allowed. However, during war that was not always possible, and persons had only been allowed in when possible. Also, following the operation many more were admitted. Furthermore, it was stressed that Palestinians admitted to Israeli hospitals received the exact same treatment as Israelis.

Generally illegal combatants were brought before a judge before the 14-day limit, the delegation said. As to why that law was not changed, therefore, that was because the law was made with wartime conditions in mind. The judicial guidance was that persons should be brought before a judge as soon as possible. However, even in time of war, there was an absolute 14-day limit.

On the Orr Commission findings on the October 2000 riots and police action during that period, the delegation noted that those recommendations had been adopted by the Government and a very high ranking officer had been forced to leave. Another high ranking officer was blocked from promotion for 5 years. Thus, the Orr Commission findings had been fulfilled.

On the number of requests for family members of detainees in Israeli that had been denied, the delegation said that, out of 75,000 such requests, only 1,000 had been denied.

Regarding excessive use of force during operation “Cast Lead”, the delegation said try to imagine thousands of missiles falling on Geneva over the course of a year with missiles fired every day by a terrorist organization, preventing children from sleeping or living normally. That had happened with the Gaza Strip with Hamas firing on Israel, and Israel had therefore decided to go into Gaza. The leader of Hamas had his hiding room just below the hospital. The decision was not to bomb that hospital, even though they knew that would kill him. The main allegation against Israel was that it had bombed a school belonging to the United Nations and killed 42. The United Nations itself had agreed that the bomb had not fallen within the school grounds, but nearby where terrorists had been firing from. Moreover, following investigations, it was not 42 that had been killed but much less, and most of those killed were Hamas "terrorists".


On house demolitions, according to Government policy, no punitive house demolitions had been carried out since 2001. However, following terrible terrorist attacks that had occurred inside Jerusalem, with the use of construction equipment and others, in one exceptional case a part of a house was destroyed in which a terrorist lived to deter other people who were planning to carry out similar attacks.

Every person interrogated and detained by the Israel Security Agency had to be checked by an independent doctor and the records were kept in a special file. In addition, detainees could ask to be checked by a doctor and such requests had to be fulfilled. Those records, of course, were part of the evidence taken into consideration in an investigation. However, in the 600 complaints brought against the Israel Security Agency over the course of 9 years, there had been no substantiating medical evidence of those claims.

Regarding the punishment of only three years' imprisonment for those responsible for acts of torture who claimed superior orders, the delegation said that the individual in question would also face further penalties under other criminal charges, such as for assault.

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