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A Torturous Debate

26 May 2009 By New Israel Fund

In my April 22 message, I referenced the upcoming meeting of the United Nations Committee Against Torture (CAT) and the scheduled review of Israel’s fourth periodic submission under the terms of the Convention Against Torture, which Israel ratified in 1991.   After extended deliberations, the CAT issued its concluding observations (link to pdf)  regarding Israel on May 14. 

I would like to highlight several key aspects of the CAT’s observations.  At the outset, the Israeli government is complimented for enacting the Israel Security Agency Law, which regulates the mandate, scope and function of security personnel, and a High Court decision excluding evidence obtained in violation of a defendant’s rights.  Positive mention is also made of educational courses for security personnel that describe Israel’s obligations under the Convention.

The CAT reaffirms the significance of Israel’s High Court decision of 1999, which prohibits torture under all circumstances.    The CAT, however, rejects the High Court’s allowance of those accused of torture to introduce a “necessity” defense, whereby a defendant can cite fears of a “ticking bomb” as a possible justification for the crime of torture.   Obviously, the debate on this matter resonates internationally, including in the United States, where President Obama’s clear rejection of enhanced investigation techniques is complicated by his reluctance to encourage prosecutions of those who may have utilized torture to supposedly protect national security. 

More generally, the CAT cites reports submitted by various Israeli NGOs, most of whom are grantees or former grantees of NIF, which allege numerous, on-going and consistent uses of torture, notwithstanding the High Court’s 1999 decision.  Indeed, the Israeli government acknowledged that 114 investigations were opened in 2006-2007 in response to allegations of wrong-doing by Israeli interrogators.  However, none of these investigations have led to the filing of criminal charges. 

In addressing the issue of refugees crossing into Israel, the CAT expresses concerns about pending legislation, which would deem all those entering Israel illegally as “infiltrators,” who can then be expelled from Israel within 72 hours without exceptions, procedures or safeguards.   Several NIF grantees are advocating for procedures that would provide those detained for illegal entry the opportunity to establish that they are entitled to refugee status based on their fear of persecution if returned to their home country or the country from which they entered Israel.   

The CAT employs measured language in response to the alleged excessive use of force during the December/January conflict in Gaza.  It acknowledges the context of “on-going indiscriminate rocket attacks against civilians in Southern Israel,” while expressing concerns about the use of phosphorus weapons in densely populated areas.  Echoing many Israeli human rights groups, the CAT calls on the Israeli government to “conduct an independent inquiry” into the “responsibility of state and non-state actors for the harmful impact on civilians.” 

For those who believe that any UN criticism of Israel’s human rights performance reflects a single-minded obsession and utilization of a double standard, the 11-page CAT document is unlikely to change their minds.  Yet, the CAT’s concluding observations deserve a careful reading because they reflect a sincere effort to address the challenges confronting Israel while remaining true to the spirit of the underlying convention.  Hopefully, the CAT’s reasoned analysis will reaffirm the benefits of Israeli cooperation with credible UN human rights bodies, including the current mission headed by Richard Goldstone, and more important, provoke a serious debate within Israel regarding on-going allegations of detainee mistreatment and the handling of refugee claims.