Legal Aspects of Countering Terrorism Flashcards
What is the definition of torture?
According to art. 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, “[a]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
What incidents occurred in the 1980s regarding torture in Israel?
The Bus 300 Incident; the Naffso Case; and the Landau Commission.
What happened in the Bus 300 Incident?
Terrorist hijacking of Bus 300 in April 1984. Two Palestinians which were captured and arrested in the midst of the operation to release the hostages were executed shortly thereafter in the fields by General Security Service agents who beat him to death. The order to carry out the execution was given by Avraham Shalom, the head of the General Security Service. Initial attempts by internal bodies to determine the circumstances under which the Palestinians died were obstructed due to false testimony by General Security Service agents.
What happened in the Naffso Case?
In 1980, Azat Naffso, an Israel Defence Forceslieutenant and member of Israel’s Circassian community was charged and convicted of committing acts of treason, specifically, providing confidential material and explosives to Palestinian Liberation Organization militants from Lebanon. He was sentenced to 18 years imprisonment. He was released when it was disclosed that the confessions based on which he was convicted were extracted through the use of coercive methods of interrogation.
What was the Landau Commission?
Response to the Bus 300 Incident and the Naffso Case. The Commission established that General Security Serviceinterrogators routinely used physical coercion in the course of questioning and then lied about it, committing perjury at trial. The Commission grappled with the question of whether coercive methods of interrogation could be authorized under exceptional circumstances. It concluded that under extreme circumstances — “ticking bomb” scenario — moderate amounts of physical pressure could be permissible.
Why did the Landau Commission not see it fi to completely rule out any form of coercion?
As a matter of principle while turning a blind eye to the urgency of reality on ground — hypocritical.
What did the Landau Commission recommend in terms of mechanism within the organizational structure of the General Security Service?
Supervision by special committee of ministers to authorize use of “moderate” coercive methods of interrogation in exceptional cases.
How did the situation surrounding torture change in Israel in the 1990s?
Oslo peace process was going on, Hamas was ramping up measures such as suicide bombings, human rights organizations began to publish reports on the torture of Palestinians, and the Constitutional Revolution was going on. Amidst all this, the High Court of Justice decided on the issue of torture in 1999.
What did the High Courts of Justice decide when it came to torture in its 1999 decision in Public Committee Against Torture v Israel?
Not allowed to employ enhanced methods of interrogation, with minor exceptions such as handcuffs.
Why did the High Court of Justice decide that torture was unacceptable in Public Committee Against Torture v Israel?
Not because of moral or human rights reasons, but for formalistic reasons – there was no statutory basis for General Security Service officials to resort to such coercive methods of investigation. It was not enough that the government adopted the recommendations of the Landau Commission.
What did the High Court of Justice say about the permissibility of torture in Public Committee Against Torture v Israel?
“A reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever.” These prohibitions are “absolute.” There are no exceptions to them and there is no room for balancing. “Indeed, violence directed at a suspect’s body or spirit does not constitute a reasonable investigation practice.”
How did the High Court of Justice leave the door open for moderate physical pressure?
Typically, necessity can only be used as a defence in foreseeable situations. However, the High Court of Justice did not deny that situations could arise in which the defence of necessity would bar holding a General Security Service official criminally liable for using coercive methods of interrogation to obtain information needed to prevent an imminent terrorist attack.
What was the reaction of the Attorney General after the High Court of Justice decision in Public Committee Against Torture v Israel?
Relatively broadly worded guidelines were indeed drafted by the Attorney General addressing the possibility of abstaining from filing criminal charges against General Security Service investigators due to necessity. However, the Attorney General made it clear that under no circumstances is it allowed to use torture, as it is defined by international convention.
What happened in the Duma Incident?
In January of 2016, Jewish far-right extremists were investigated for several weeks by the General Security Service for involvement in acts of arson which resulted in the death of an Arab infant and his parents. The case drew much public attention because it was explicitly acknowledged that coercive methods of interrogation were used to extract the main suspect’s confession and that the Attorney General had given advance approval. Initial confession was ruled inadmissible but subsequent confessions were allowed.
What happened in the Abu Gosh Case?
Abu Gosh, a Hamas militant, was arrested by the General Security Service in September 2007 and interrogated for almost eight weeks. He revealed the location of two bomb factories and weapons labs in Nabulus. He provided additional information that led to questioning of another Hamas militant who revealed the location of an explosive vest smuggled into Israel that was hidden in Nahalat Binyahim in Tel Aviv waiting to be detonated on Yom Kippur. Clearly, information obtained saved lives from an impending terrorist attack.
What did the State of Israel recognize in the wake of the Abu Gosh Case?
The “ticking bomb” exception was used as a justification for torture, but that prohibition against core form of torture is absolute even in “ticking bomb” cases.
What did the High Court of Justice decide in the Abu Gosh Case?
It only intervenes in the factual findings of the Attorney General if manifestly unreasonable, and this is not the case here. Found that forms pf physical pressure that fall short of torture were used. Once again expanded the defence of necessity. Found that enhanced interrogation was legal in valid “ticking bomb” scenarios – enough that specific planned attack was going to happen at some point in the future on a specific target.
What did the High Court of Justice decide in Tbeish v Attorney General?
Confirmed prior ruling in Abu Gosh Case. There was still a requirement for a statutory basis to use ‘enhanced’ methods of interrogation – it is permitted to put in place a mechanism of consultation with senior General Security Service officers as to whether the conditions of ‘imminent danger’ required to establish a defence of necessity obtain. There is no prior authorization mechanism that could shield investigators from prosecution – the assessment must always happen after the fact.
