When a public commission decided back in 1987 that moderate physical pressure should be able to be used as a last resort in interrogating terrorism suspects, it apparently never expected that the techniques might be used against Jews. It turns out that these exceptional measures – which are considered legitimate, legally and socially, because they are aimed at the “other,” the enemy – are also being used, albeit to a very limited extent, against Jews.
The widespread view that there is no problem sacrificing other people’s bodily integrity, freedom and dignity for the sake of our lives and security has proven to be somwhat simplistic. The distinction between us and others isn’t dichotomous. What we allow to be done to others in our names and for our sake is liable to backfire on us.
According to the 1987 report from the Landau Commission, a three-person panel headed by former Supreme Court Justice Moshe Landau, permissible exceptional means cannot involve cruel, humiliating or inhumane treatment. The exceptional means should therefore not lead to confessions made after they are resorted to being excluded as evidence in court. In a landmark High Court of Justice case about torture in 1999, the state even had the gall to argue that these exceptional means do not cause pain and suffering to the suspect under interrogation.
From this perspective, the Central District Court’s ruling on Tuesday against the admissibility of the defendants’ confessions in the Duma murder case is an important step towards truth and justice. In their ruling, the judges called the use of physical pressure “a serious violation of defendants’ fundamental right to maintain the integrity of body and soul,” and of their dignity. This violation is so severe, the court said, that it is not necessary to investigate the degree to which these tactics actually influenced the suspects’ free will. Their confessions must be inadmissible as evidence.
The district court’s approach bolsters human rights organizations’ grievances against prosecutors and the Supreme Court for failing to be moved in cases in which interrogators admit to using such tactics out of “necessity.” The police rarely look into such cases. But there ought to at least be inquiries into what exactly was done and what the justification was for using physical pressure. That would provide a basis for deciding what the consequences should be, for both the suspect and the interrogator, as a result of what happened during the interrogation.
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The Central District Court ruling also concludes that excluding confessions extracted under pressure as evidence isn’t the end of the story. If additional confessions were subsequently obtained under conditions in which the suspect did exercise free will, they are admissible. That was the case when it comes to Amiram Ben-Uliel, one of three defendants in the case of the Duma murders in which three members of the Palestinian Dawabsheh family were killed in a 2015 arson attack.
On the other hand, if the additional confessions are obtained in a way that links them to the previous confessions – for instance, if they were given right after one another or to the same interrogators – they will be disqualified. That was true when it comes to a juvenile defendant in the Duma case. For interrogators, the knowledge that they could obtain later confessions that would be admissible even if the original confessions are disqualified would be an incentive to use unacceptable tactics.
The court ruling reveals that video footage of the interrogation of Ben-Uliel helped the prosecution secure the use of his additional confessions as evidence in court, while the lack of such footage hurt the prosecution's case with regard to the juvenile defendant's additional admissions. This raises questions about the wisdom of the Shin Bet security service’s vehement opposition to videotaping interrogations, even after former Shin Bet chief Yuval Diskin consented to the practice in his appearance before another public commission, the Turkel Commission, which looked into the circumstances of the Israel Navy's confrontation wtih a Turkish flotilla in 2010.
The High Court has ruled on torture and unequivocally forbidden its use, and that of cruel, inhumane or humiliating treatment during interrogation. Nevertheless, the court said that an interrogator who uses unacceptable methods in a situation in which he believes it is necessary can raise the argument in his own defense. If the defense is accepted by a court, the exceptional circumstances will absolve the interrogator of criminal responsibility for his actions, the High Court ruled.
One hopes that at least some of the justices who issued that 1999 ruling never dreamed that the narrow opening they left would lead to the institutionalization of these unacceptable methods, including acts committed on orders from on high. The degree of institutionalization is so great that the "necessity" defense effectively functions as a license.
This is a blatant violation of international law, a violation to which senior Shin Bet officials, the attorney general, his aides and the Supreme Court are all party.