In a ruling that could make it easier for investigators to use harsh interrogation tactics against Palestinians, the High Court of Justice said this week the severe tactics used against one Palestinian were legitimate because he was suspected of knowing the location of a weapons cache.
Tbeish, a 40-year-old resident of the West Bank, was arrested in 2011 on suspicion of membership in Hamas and arms dealing. He was kept in administrative detention, or arrest without trial, for a year. Investigators believed he knew the location of an arms cache containing at least 10 weapons, including rifles.
After harsh tactics were used in his interrogation, he disclosed the cache’s location. This information also led to the arrest of other Hamas operatives, including one who confessed to having planned to kidnap an Israeli.
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Tbeish and the state ultimately reached a plea bargain in which he admitted to being a member of Hamas’ military wing, hiding weapons for the organization and transferring seven weapons to other Hamas members. He was sentenced to three years in prison.
After his conviction, Tbeish filed a complaint with the Shin Bet ombudsman, aided by the Public Committee Against Torture in Israel. He said his interrogators had threatened to harm him, his family and his home. They also deprived him of sleep, hit him, kept him in the “banana position” – with his back bent over a chair and his hands and feet cuffed together – shook him so hard he lost consciousness, and kept him on a chair with his hands cuffed painfully behind the chair back.
The ombudsman, Col. (res.) Jana Mudzgurishvilly, investigated the complaint, but in 2016 she closed the case. Tbeish then petitioned the High Court with the help of the Public Committee Against Torture.
But justices Yosef Elron, Isaac Amit and David Mintz rejected the petition, in a ruling that could have far-reaching implications for the way Shin Bet interrogations are conducted.
Elron, writing for the court, said that even though harsh tactics were used against Tbeish, he had failed to prove that they constituted torture. The petition presented medical evidence that Tbeish suffered from toothache, swelling, constricted movement in his knee, vision problems and leg pains. But Elron said these were not enough to prove that he had been tortured.
The Shin Bet acknowledged using “special methods” to interrogate him, but it detailed these tactics in an ex parte hearing, without Tbeish or his lawyer present.
“These methods didn’t include using violence against the petitioner in the manner he described in the complaint and the petition,” Elron said. “Under the circumstances, and after examining the classified material submitted to us, I was convinced that the use of these special methods in the petitioner’s interrogation is covered by the necessity exception.”
That was a reference to the High Court’s famous 1999 ruling barring the Shin Bet from using torture, which included one exception – an investigator who used violent tactics would not be criminally liable if these tactics were necessary to save a life.
The metaphor the court used in that ruling was a ticking bomb. If the Shin Bet captured a suspect who knew where a bomb was but refused to tell, investigators would not be guilty of a crime if they used violence to get him to reveal its location before it exploded.
The 1999 ruling stressed that harsh tactics were permissible only if it was important to obtain answers quickly. But Elron said necessity should be interpreted “in light of Israel’s complex security situation.”
“The petitioner is active in a terrorist organization that had committed and continued to commit serious terror attacks,” he wrote. “In this context, the petitioner was party to a plot to amass many dangerous weapons with the intent to use them to perpetrate terrorist activity. The planned attack, had it been carried out, could have claimed lives.”
Elron added: “This fear of a tangible risk of serious harm to human lives ... created, in his interrogators’ view, a need to use special interrogation tactics to thwart the danger immediately.”
In Amit's concurring opinion, he acknowledged that this case “isn’t the classic case of a ticking bomb that could explode within minutes,” but he agreed with Elron that the need to find the cache before it was used justified the harsh tactics.
'Letting the Knesset avoid responsibility'
Prof. Barak Medina, rector of the Hebrew University of Jerusalem and one of the country’s leading experts on constitutional law and human rights, told Haaretz that the ruling was liable to expand the security services’ ability to use violence when interrogating suspected terrorists.
“It wasn’t a formal permit, but in practice, yes. In any case where special methods are used, it’s necessary to ensure that they don’t amount to torture,” Medina said.
“But there’s no open discussion about the severity of these methods. The use of special methods is permitted only when there’s prior knowledge – for instance, because the interrogee confessed – that he has relevant information that he’s concealing.”
But Medina said the new ruling could be interpreted as allowing these methods against anyone connected to a terrorist organization who is suspected of possessing arms.
“There’s a significant expansion here of the circumstances in which it’s permissible to use special methods, because there’s no demand for high probability that these methods will indeed be necessary to obtain this information,” he said.
Harsh tactics “aren’t a punishment but a means to obtain information, so the issue of the interrogee’s direct involvement in the expected attack isn’t necessary per se as a justification for using these methods,” Medina added. “This shows the very problematic nature of this whole doctrine because it means the severity of the act attributed to the interrogee isn’t important in justifying [tactics that] cause him great harm.”
Moreover, Medina said, the court is essentially letting the Knesset avoid responsibility for regulating this issue in legislation. The 1999 ruling said the use of harsh tactics in interrogations was an issue on which the Knesset should decide – “not the attorney general, not the Shin Bet director and not the interrogators. But this ruling allows the Knesset to continue remaining silent and the Shin Bet to use investigative powers that it doesn’t have officially.”
The Public Committee Against Torture in Israel is also deeply concerned about a remark by Mintz in his concurring opinion in which he referred to “the rule stating that torture is forbidden except in extremely exceptional cases.” This phrase might suggest that even harsher tactics than those used today could be legitimate in “extremely exceptional cases,” the committee warned.
The court’s decision, said attorney Efrat Bergman-Sapir of the committee, “is liable to be interpreted as a significant retreat from the moral, ethical and legal stance laid down in the foundational ruling on torture from 1999, which held that the ban on torture is absolute, with no exceptions.”
No less worrying, she added, was the court’s expansion of the term “ticking bomb” to include cases in which interrogators know “that there is no ticking bomb in the sense of certainty and immediacy.”
Tbeish himself was upset that the court rejected his account of the harshness of the tactics against him.
“I thought there was justice in your court,” he said. “But in the end, what can I say? I raise my hands to heaven. Justice, it seems to me, doesn’t exist in this life, only in heaven.”
Referring to the military judge to whom he showed the marks on his legs and other parts of his body after his interrogation, he added, “Why didn’t the judge say back then that I was lying? They hurt me.”
Finally, he denied the accusation – to which he confessed in the plea deal – that he stored weapons for Hamas. He admitted that he has ties to the organization but said the weapons were meant for his personal defense in violent conflicts in his village.