The High Court of Justice issued a historic ruling in 1999, according to which the Shin Bet security service was not authorized to use physical means in its interrogations. The court thus repudiated the conclusions of the 1987 Landau Commission of Inquiry on the matter, which permitted the Shin Bet to use “moderate physical pressure” during interrogation.
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Sixteen years later, an investigation by Haaretz shows that torture is still used in interrogations in Israel, under the euphemistic term “the necessity defense,” and that recently its use has increased. According to data collected by Haaretz from the country’s military courts and matched against the figures of the Public Committee against Torture in Israel (PCAT), in 2014, Palestinians filed 59 complaints of torture, compared to 16 and 30, respectively, in 2013 and 2012.
In its famous ruling, the High Court rejected the argument that the “necessity defense” set forth in Israel’s Penal Law authorizes the use of physical means against interrogation subjects. The necessity defense, the verdict emphasizes, is an argument that can be claimed by an investigator on an individual basis and only after the fact, in the event of a “ticking time bomb” scenario.
In practice, however, the interpretation of the necessity defense has broadened, together with the use of torture. In 2009, after reports of torture increased, the High Court rejected a contempt of court motion filed by PCAT. The High Court noted in its decision that the state claimed that special interrogation methods were employed in a few, very rare, cases.
According to the Haaretz investigation, the cases in which torture is used are not rare and few, and often it is used unnecessarily, in accordance with existing protocol. The prohibition against torture in international law is absolute. The reason for this is the violation to human dignity and the human body that it entails, but also the many cases in which people have confessed to crimes they did not commit. The case of Izzat Nafsu, an Israel Defense Forces officer from the Circassian ethnic minority who confessed under torture to espionage offenses, in 1980, and was later exonerated, is one such example. Another is the case of Mohammed Hatib, who confessed under interrogation to belonging to the terror cell that carried out the abduction and subsequent murder of three Israeli teens last June – despite the fact that, according to his charge sheet, the Shin Bet and Military Advocate General in the end did not accept his confession and it is thought to have been obtained through torture.
The attorney general must instruct the Shin Bet to stop torturing suspects and to comply fully with the 1999 High Court ruling. A democratic state cannot permit torture as a legitimate method of interrogation.