TABLE OF CONTENTS
RECOGNITION OF THE INHERENT DIGNITY AND OF THE EQUAL AND INALIENABLE RIGHTS OF all members of the human family is the foundation of freedom, justice and peace in the world (Universal Declaration of Human Rights, preamble).
INTRODUCTION
This report describes human rights concerns and developments in "Israel"
and the Occupied Territories (
). in the five years since the signing of
the Oslo Agreement on 13 September 1993. It focuses on areas of main concern
to Amnesty International, including arbitrary arrest and detention without
charge or trial of political detainees; the use of torture and deaths in
custody after torture; unfair trials; possible extrajudicial executions
and other unlawful killings. Other human rights violations, such as closures
which prevent freedom of movement; confiscation of land; destruction of
houses; confiscation of Jerusalem identity cards, causing forcible relocation
or loss of benefits; profoundly affect the lives of Palestinians but are
not considered in this report (
).
BACKGROUND
On 13 September 1993 "Israel" and the Palestine Liberation Organisation
(PLO) signed the Declaration of Principles on Interim Self-Government Arrangements,
which became known as the Oslo Agreement. The Palestinian Authority was
created by the Agreement on the Gaza Strip and Jericho Area (also known
as the Cairo Agreement), signed by "Israel" and the PLO on 4 May 1994.
The PA was established in May 1994 in parts of the West Bank and Gaza Strip, areas which had been occupied by "Israel" in 1967 and had been under "Israeli" military government since that date. The Cairo Agreement gave the PA the jurisdiction to administer parts of the Gaza Strip and Jericho, one town in the West Bank, under the leadership of Yasser Arafat, Chairman of the PLO. He returned to Gaza from his headquarters in Tunis to oversee this new administration in July 1994.
On 28 September 1995, a further accord, the "Israeli"-Palestinian Interim Agreement on the West Bank and the Gaza Strip (known as the Oslo II or Taba Agreement) extended the jurisdiction of the PA to cover other areas in the West Bank beyond Jericho. This agreement superseded the previous Cairo Agreement.
This agreement divided the West Bank (excluding East JerusalemSee footnote 1) into three separate areas. Area A, approximately 3% of the area of the West Bank, consisted of the main urban areas; the PA had responsibility for public order and internal security. Area B, 27% of the area of the West Bank, consisted of approximately 440 West Bank villages; the PA had responsibility for public order for Palestinians, while "Israel" retained ''overriding responsibility for security for the purpose of protecting "Israelis" and confronting the threat of terrorism'' ( Article XIII(2a)) . In Area C, the remaining 70% of the West Bank, "Israel" retained complete responsibility for security and public order.
In implementation of the Oslo II Agreement "Israel" withdrew its forces from six towns in the West Bank at the end of 1995. At elections which took place in January 1996 Palestinians in the Occupied Territories, including Jerusalem, elected an 88-member Legislative Council and overwhelmingly voted for Yasser Arafat as President of the PA. In "Israeli" elections of May 1996, Binyamin Netanyahu was elected Prime Minister of "Israel". In January 1997, after signing the Protocol Concerning the Redeployment in Hebron, "Israel" withdrew from most of Hebron. As of August 1998, there had been no further redeployment of the "Israeli" army in the West Bank, although the Oslo II Agreement anticipates three further redeployments (...).
HUMAN RIGHTS
The year 1998 marks the fifth anniversary of the signing of the Oslo
Agreement and the 50th anniversary of the Universal Declaration of Human
Rights (UDHR). The UDHR was drawn up in 1948 in response to the Second
World War and the holocaust, the ''barbarous acts which have outraged the
conscience of mankind'' caused by ''disregard and contempt for human rights''
(UDHR preamble). The fundamental human rights summarized in the UDHR have
been expanded in other United Nations human rights treaties, such as the
International Covenant on Civil and Political Rights (ICCPR) and the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT), both of which the State of "Israel" has ratified . President Yasser
Arafat also stated, soon after signing the first Oslo Agreement, that he
would abide by international human rights treaties. The standards quoted
below are in their simplest form, from the UDHR:
No one shall be subjected to arbitrary arrest, detention or exile (Article 9)
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 5)
All are equal before the law and are entitled without any discrimination to equal protection of the law... (Article 7)
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence (Article 11(1))
Everyone has the right to life, liberty and security of person (Article 3).
These basic and fundamental rights are the subject of this report.
Detention Procedures
Arrests and Prolonged
Incommunicado Detention
Essentially nothing has changed in the laws or practice governing the
arrest and detention of Palestinians from the Occupied Territories. "Israeli"
military orders are still applicable throughout the Occupied Territories.
Palestinians are still subject to arbitrary political arrest and prolonged
incommunicado detention according to "Israeli" Military Order 378 which
allows detention for up to 90 days without access to a lawyer. Access to
the family can be denied even longer. Judicial review is often perfunctory.
An amendment to Military Order 378 issued in 1994 authorizes arrest even
in Area A.
Numbers of Palestinians arrested have, of course, declined since the intifada (the uprising of the Palestinian population of the Occupied Territories from 1987 to 1993) when up to 30,000 Palestinians were arrested per year. According to official "Israeli" statistics a total of 6,245 Palestinians were arrested for security offences in 1994. At least 2,000 must have been arrested in 1997.
Ziyadeh al-Qawasmeh, a student from Hebron, aged 19 , was arrested on 13 November 1994. His lawyer was able to see him about 25 days after arrest but he was not allowed to meet his family until 136 days after arrest; during his interrogation which lasted most of this time, he says he spent six days per week without sleep tied to a small chair ( ). Lawyers of Palestinian detainees reported that it had become the norm rather than the exception to be denied access to detainees for 25-30 days and that detainees were being held between 40 to 140 days without access to their families. Not only does this contravene standards on the administration of justice, it also leaves the detainees especially vulnerable to torture or ill- treatment. "Israeli" lawyers, who can apply for injunctions in the "Israeli" High Court of Justice demanding access, may be successful at shortening times of incommunicado detention, but even then they may not see their clients for 20 days or more(See footnote 3).
Even though the main population centres in the West Bank (except for parts of Hebron and East Jerusalem) have been transferred to the jurisdiction of the PA, mass arrests of Palestinians by "Israeli" security services still take place. ( ). Although most of the Palestinian population in the Occupied Territories are under the PA's administrative jurisdiction, "Israeli" security services act freely throughout Areas B and C to impose curfews, search houses and arrest and detain. Villages such as Surif or Asira al-Shimaliya thought to have harboured Hamas cells have been cut off from the outside world for days or weeks during "Israeli" security sweeps, and houses of suspected suicide bombers destroyed. In Area B Palestinians can be arrested both by the "Israeli" security services and by the PA.
Having handed over to the PA the detention centres and prisons in the centre of cities on the West Bank, "Israel" has constructed new detention centres and military tribunals in the West Bank areas under its direct control: at Majnuna near Hebron; Beit El near Ramallah; and Dotan near Nablus. Palestinians arrested are also sent for interrogation to the Moscobiyya Detention Centre in Jerusalem, Shikma Prison in Ashkelon and Kishon Prison near Haifa.
Administrative
Detention
Administrative detention has been used against thousands of Palestinians
and up to 20 Jews since 1993. Detainees are held without charge or trial
under the order of either the "Israeli" Minister of Defence, in the case
of "Israel" and Jerusalem, or an "Israel" Defence Forces (IDF)** Military
Commander, in the case of the Occupied Territories, excluding East Jerusalem.
Usually neither they nor their lawyers are allowed to know in any detail
the reasons for their detention.
Administrative detention laws - ostensibly introduced as an exceptional measure to detain people who pose an extreme and imminent danger to security - are in fact used to detain a much wider range of people who should be arrested, charged and tried in accordance with the normal laws of penal procedure, or against individuals who should not be arrested at all.
Under administrative detention, detainees' rights to a fair trial, including their right to be informed promptly and fully of the reasons for their detention, to be presumed innocent, to examine and have examined the witnesses against them, and to be tried in public, are consistently abused. In many cases the first if not the only opportunity detainees have to find out why they are detained is at an appeal hearing which they have to initiate themselves. It takes place several weeks, sometimes months, after arrest. The evidence against the detainee is heard in camera, without either the defendant or his or her lawyer being allowed to know what that evidence is and to challenge it.
Ahmad Qatamesh, from Ramallah in the West Bank, was arrested by the IDF on 1 September 1992 and was reportedly tortured and ill- treated. He was placed under administrative detention more than a year later on 20 October 1993 after a judge had ordered his release on bail, arguing that the prosecutor had failed to show sufficient evidence against him to justify his continued detention. He was eventually released on 15 April 1998 after he had been held in administrative detention for four and a half years. At the time of the 1994 Oslo Agreement it was hoped that the problem of administrative detention would be resolved and the detainees rapidly released. However, by 1994 administrative detention was once more the "normal" means of holding a large number of detainees without bringing them to trial. While before the establishment of the PA in May 1994 all but two administrative detainees from the Gaza Strip had been released, during October to December 1995, when towns in the West Bank were being handed over to the PA, many political activists opposed to the peace process resident in these towns were arrested by "Israel" and placed under administrative detention.
Some detainees stay in administrative detention for two or three months. Others have their detention orders continually extended, without any new evidence being presented by the General Security Service (GSS), and remain in detention for years on end.
'Usama Jamil Isma'il Barham, currently the longest-serving administrative detainee, has been held since 8 November 1993 with a gap of only 17 days in September 1994. His detention order has been renewed more than ten times. His present order is due to expire on 9 September 1998.
Between 1994 and 1998 those held in administrative detention have mainly been members of parties which opposed the peace process, either activists from the PFLP or the DFLP, or from Hamas or Islamic Jihad. Some were accused of involvement in violence but since no evidence was made available to them or their lawyers, such involvement is impossible to assess. One detainee, Wissam Rafeedie, writes of his arrest:
"When I was arrested on the morning of 15 August 1994 the officer said to me, 'Why do you oppose the peace plan?' i.e. the Oslo Agreement. I said, 'That's not your concern, I am free to hold my opinion.' He replied, 'For that reason, we are free to hold you in prison.'''
During 1997 and 1998, campaigns against administrative detention by Palestinian, "Israeli" and international human rights organizations, including Amnesty International(See footnote 4), helped to raise the awareness of the "Israeli" public. The letters between an "Israeli", Yuval Lotem, who had served a prison sentence for refusing to serve as an administrative detainee guard in Megiddo Prison, and Imad Sabi', in administrative detention, published in the major national "Israeli" newspaper Ha'Aretz in 1997, brought the issue of administrative detention to a much wider "Israeli" audience. Some of those inspired by the correspondence to take action were a group of "Israelis", who formed the Open Doors movement. The movement's activities in support of the administrative detainees ranged from ''twinning'' with individual detainees to demonstrating outside the Ministry of Defence. A number of administrative detainees, including long-term detainees, began to be released: Imad Sabi, detained since December 1995, was released in 1997, and other long term detainees from the beginning of 1998. In March and April 1998, 70 administrative detainees were released, including Ahmad Qatamesh and others held for more than four years. However, the laws allowing the practice of administrative detention remain in place. Despite the much smaller numbers involved, the use of administrative detention against Jews may have created more opposition in "Israel" to the practice in general ( ).
As of July 1998 there were approximately 90 administrative detainees. The majority are reportedly members of Hamas and Islamic Jihad; labelled ''terrorists'' and denied a fair trial. Administrative detention is still used as a means to circumvent the criminal justice system and avoid the due process safeguards it provides.
Torture and Ill-treatment
By September 1993, the "Israeli" security services were using torture
systematically on Palestinian political suspects and its use was effectively
legal, an internationally unprecedented state of affairs. The past five
years has witnessed a constant struggle between, on the one side, victims,
human rights lawyers and local and international human rights organizations
searching for the means to effectively challenge the system of legalized
torture and, on the other, the "Israeli" Government, seeking to defend
and entrench the present system , together with a compliant "Israeli" Supreme
Court and a largely supportive "Israeli" public . Though the human rights
movement has won some successes, this legalization and systematization
of torture has, over the past five years, if anything, become a more entrenched
part of the system in which Palestinian detainees find themselves.
The GSS, and to a lesser extent also the IDF, interrogate the overwhelming majority of Palestinians from the Occupied Territories, using torture and ill-treatment systematically . Since 1987, GSS interrogations have been regulated by secret guidelines drawn up by the Landau Commission allowing "the exertion of a moderate measure of physical pressure". Probably at least 800 Palestinians suffer torture every year. The apparent acceptance of this by the majority of Jewish "Israelis" allows the systematic torture of Palestinians to continue.
Methods of Torture
The Landau Report guidelines have never been made public, but certain
methods of torture have been described by Palestinians in thousands of
testimonies and in court hearings the GSS has confirmed their use. Methods
described by detainees and admitted by the GSS include:
Shabeh: A combination of methods including prolonged sleep deprivation while shackled in painful positions, hooding and exposure to continuous raucous music, played at an extremely high volume. Normally, detainees are interrogated and deprived of sleep for five days at a time and allowed to sleep during Friday and Saturday (the weekend). The painful position may involve sitting on a kindergarten chair with the front chair legs shortened or standing with the arms stretched and handcuffed to a pipe, or the legs just touching the ground. In the "banana position" the detainee lies with his stomach on the chair.
Gambaz: The detainee is forced to squat for more than two hours.
Tiltul: (in Hebrew, or Hazz in Arabic; ''violent shaking'') The detainee is held by the collar and violently shaken for up to five minutes. Detainees describe losing consciousness as a result.
Khazana: (in Arabic, ''closet'') The detainee is held
in a cupboard-sized room.
Psychological pressure includes threats to life, family and health.
Other methods of torture, such as beating, pressure on genitals and exposure to heat and cold, have been denied by the "Israeli" authorities but are frequently reported by detainees. Detainees also report having suffered severe restrictions on the time allowed for eating or going to the toilet.
The use of the torture methods described above is accompanied by a system of medical checking of detainees designed to ensure that detainees do not die in custody. Such involvement by health professionals in a system in which detainees are tortured and ill-treated places current prison medical practice in conflict with medical ethics. Detainees are checked by medical staff on arrival and torture is modified according to the state of their heath.See footnote 5.
"Increased Physical
Pressure"
The Landau Commission report recommended that a ministerial committee
should be set up to regularly review the secret guidelines on the use of
''moderate pressure''. Currently, the members of this committee are the
Prime Minister (Chairman), the Minister of Defence, the Minister of Justice,
the Minister of Internal Security and the Attorney General (... ).
The meaning of ''increased physical pressure'' - like the guidelines to the Landau Report - remains secret. Ahmad Sa'id, a Bir Zeit University student, described his torture as follows:
"We stayed like that [in shabeh for six days a week] until the bombing in Dizengoff Street in Tel Aviv and then they kept us there for 11 days and I stood for 20 hours instead of four hours a day. The squatting would last four hours instead of one hour. They interrogated me with more physical pressure than before, pressing down on my stomach, my spinal cord and the joints of my feet. Then they made me do physical exercises with my hands tied - this might have made me paralysed if I lost control because my whole weight was on my spine. They threatened me with being unable to father children and with incurable injury. They mentioned names of other prisoners who had been left dead or injured and if we slept or rested they would pour cold water on us or hit our heads.
"The shabeh was in the sun during the day and in cold air-conditioned rooms at night. Standing under the sun, the hoods on our faces made it hotter. The hood on my face day and night affected my sight as it was dark all through. When they beat us they told us that they wouldn't leave marks on the body 'so that if you speak to the judge or the Red Cross representative or the lawyer they won't see any mark and they won't believe you'."
Testimonies like these suggest that ''increased physical pressure'' is an intensification of previous methods. Six months later a death in custody occurred which highlighted the use of violent shaking.
The Death of 'Abd al-Samad Harizat and the Shaking Debate
'Abd al-Samad Harizat, a 30-year-old computer expert from Hebron, was arrested around midnight on 21 April 1995 and fell into a coma soon after 4pm on 22 April; he died on 25 April without regaining consciousness. Physicians for Human Rights sent an expert, Professor Derrick Pounder, to observe the autopsy, carried out by two "Israeli" forensic pathologists. The autopsy found that 'Abd al-Samad Harizat had died from ''violent shaking'' which had caused a sub-dural haemorrhage within the skull. Pressure from the lawyer of the Harizat family later obtained information about his interrogation: he had been shaken 12 times between 4.45am and 4.10pm, 10 times by holding his clothes and twice by holding his shoulders.
There is no doubt whatsoever about the cause of death and it's very clear he has died from unnatural causes and that he has died from torture. Professor Derrick Pounder
Although the interrogators who caused death or severe injury were offered, as usual, impunity for their actions (See footnote 6), the death of 'Abd al-Samad Harizat by violent shaking brought torture and the use of shaking into public debate. The Minister of Justice David Liba'i and the Legal Advisor to the "Israel" Government, Michael Ben Yair, were reported to be opposed to the continued use of shaking. The dispensation to use "increased physical pressure" which expired in July 1995 was then renewed for periods of approximately one week until August 1995.
Shaking the head and trunk in a forward- backward motion while holding the shirt... provides relative stability to the neck. Expert opinion by the Director of the "Israeli" Institute of Forensic Medicine
The Association for Civil Rights in "Israel" filed a suit before the High Court of Justice seeking an injunction against the practice of shaking. The Public Committee Against Torture in "Israel" and the Association of "Israeli"- Palestinian Physicians for Human Rights also sought an injunction in the High Court against shaking and filed manslaughter charges against those officials it regards as responsible for the death of 'Abd al-Samad Harizat.
Legalising Torture
In 1995 and 1996, two bills were put forward which would have enshrined
the legalization of torture in law by permitting the use of "pressure"
during interrogations and offering impunity to GSS interrogators who used
force.
The proposed Amendment to the Penal Law - Prohibition on Torture 1995, which was supposed to bring "Israel's" law into conformity with the UN Convention against Torture, defined torture as:
severe pain or suffering, whether physical or mental, except for pain or suffering inherent in interrogation procedures or punishment according to law (our emphasis).
Such a definition of torture, excluding ''pain or suffering inherent in the interrogation process'' would have negated the intentions of the Convention against Torture and formally legalised the treatment amounting to torture already routinely used during "Israeli" interrogation.
The proposed Law of the General Security Service (the ''GSS Law'') introduced in January 1996, was to be the first law regulating the GSS. The GSS Bill accepted, in Article 9(a), the use of ''pressure'' against those interrogated in certain defined circumstances ''to prevent actual danger to the security of the state'' and when ''no other reasonable way exists to prevent said danger''. A phrase in the article stipulating that the methods used by a GSS interrogator ''will not injure the interrogee's health'' incorporates in law the part played by health professionals in providing the medical supervision which allows the system of torture to function in "Israel" and the Occupied Territories.
National and international protests may have played a part in persuading the "Israeli" Government to reconsider these bills. The Prohibition on Torture Law has apparently been dropped while protests against the ''GSS Law'' caused it to be shelved until after the 1996 elections. Recently the bill has been reintroduced without its controversial Article 9 and is now before the Knesset. Amnesty International continued to oppose certain articles in the bill which appear to offer impunity for GSS agents who use torture or ill-treatment.
The Supreme Court
Over the past five years, numerous battles on the meaning and legality
of torture have been fought out before the "Israeli" Supreme Court sitting
as the High Court of Justice. Palestinian lawyers from the Occupied Territories
(except East Jerusalem) do not have the right to use this means of appeal.
However, a number of cases have been brought by "Israeli" lawyers.
In 1994, one lawyer started bringing "sleep injunctions" before the Supreme Court, requiring the GSS to allow his clients under interrogation to have six hours sleep each day. Such injunctions were normally granted, but either the GSS stated that they had completed their interrogation or that the interrogation of detainees would continue after the sleep.
At the same time, lawyers started to bring petitions to the Supreme Court to grant injunctions prohibiting the GSS to use "pressure" against individual detainees. However, the success of such injunctions has been limited. In cases where the court grants such injunctions and the GSS returns to court and challenges them, the Supreme Court has consistently found in its favour. For instance, on 24 December 1995 the Supreme Court granted an injunction preventing the interrogators from using physical force on 'Abd al- Halim Belbaysi. Despite this, the GSS continued to subject him to torture and ill-treatment, including shackling his legs to a chair and his hands behind his back, blindfolding him, depriving him of sleep for three days and violently shaking him. 'Abd al-Halim Belbaysi's lawyer, André Rosenthal, then, as a test case, protested only against the use of violent shaking, which had caused the death of 'Abd al-Samad Harizat, and asked that it should be forbidden. On 11 January 1996, the request was refused and the Supreme Court rescinded its injunction preventing physical force.
In the case of Khader Mubarak which came before the Supreme Court in November 1996, the Court accepted the GSS argument that hooding was carried out in order to prevent the detainee from identifying other detainees and that the loud music was to prevent detainees from communicating with each other. They also accepted the ''explanations of the Security Service... that the issue is not one of active sleep deprivation, but of periods of time during which the Appellant was held waiting for interrogation without being given a break designed especially for sleep''. However, as the "Israeli" human rights organization B'Tselem pointed out:
The periods of 'rest' which exceeded one day invariably included Friday and Saturday, i.e. the "Israeli" weekend. It seems highly unlikely that four times during three and a half weeks there was a 'pressing need' to deprive Mubarak of sleep only during mid-week, while, as the weekend approached, the 'pressing needs' mysteriously vanished, only to re-emerge come the next week(See footnote 7).
The Supreme Court three times refused to grant injunctions to prevent the use of shabeh against 'Abd al-Rahman Ghanimat, who was arrested on 13 November 1997 and met his lawyer for the first time on 23 December. He gave a sworn affidavit stating that he had been forced for five-day periods for the previous six weeks to sit on a small slanting chair to which his hands and legs were shackled, with a thick sack over his head. Loud music was played and he was deprived of sleep. His lawyer saw that her client's wrists were red and swollen because they had been so tightly shackled to the chair. 'Abd al-Rahman Ghanimat complained of dizziness and pain throughout his body, including his joints and back. Partly as a result of the Ghanimat case (see box), in January 1998, the Supreme Court scheduled an unprecedented nine-judge hearing to review the legality of GSS interrogation methods under "Israeli" law. The GSS now admitted that methods such as hooding, shabeh and the playing of raucous music were, indeed, interrogation techniques. Other longstanding petitions challenging torture, including a petition challenging the use of shaking by the GSS, were then joined to the case which came up again before the High Court on 20 May 1998. After hearing the petitions, Supreme Court President Aharon Barak commented that the question should be dealt with by the legislature rather than by the Supreme Court. The case was later adjourned and no date has been set for its resumption.
This represents a serious failure by the judiciary to uphold one of its basic responsibilities: ''to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected''See footnote 8. The former UN Special Rapporteur on torture, P. Kooijmans, stated in his 1991 report: ''Under circumstances in which torture is practiced or condoned by the authorities, it is the judiciary which forms the last bastion for the protection of the citizens' basic rights''See footnote 9. The "Israeli" judiciary has persistantly failed to protect even the most basic rights of Palestinians.
The UN Committee
against Torture
The UN Committee against Torture is a body of experts which examines
implementation of the Convention against Torture by states which have ratified
the Convention. "Israel" ratified this convention in 1991. Article 2 of
the Convention requires states to prevent ''acts of torture in any territory
under its jurisdiction'', and to incorporate the prohibition of torture
or ill-treatment into their domestic law.
In April 1994 the Committee against Torture considered "Israel's" initial report regarding implementation of the Convention. The Committee found the authorization of the use of "moderate physical pressure" to be "completely unacceptable" and expressed concern at the "large number of heavily documented cases of ill-treatment in custody". The Committee recommended that the interrogation procedures be published and that all interrogation practices in breach of the Convention be ended immediatelySee footnote 10.
At the time of the Supreme Court's failure to ban torture in two cases in November 1996, the Committee asked "Israel" to submit ''as a matter of urgency'' a special report. At its May 1997 meeting, the Committee found that interrogation methods used by "Israel", "restraining in very painful conditions", "hooding under special conditions", "sounding of loud music for prolonged periods", "sleep deprivation for prolonged periods", "threats, including death threats", "violent shaking", and "using cold air to chill", constituted tortureSee footnote 11. The Committee examined "Israel's" second periodic report in May 1998. The Committee reiterated its conclusions and recommendations of the previous year and expressed concern at ''"Israel's" failure to implement any of the recommendations of this Committee''. None of the recommendations has yet been implemented.
Police Brutality
There appears to be a fairly constant level of brutality, amounting
to torture or ill-treatment, carried out especially by the Border Police
and the IDF, often at checkpoints. Such beatings, kickings and general
humiliation of Palestinians tend to increase during periods of political
tension. What has marked such cases has been the brutality of the forces
involved and the almost total impunity from which those involved appear
to have benefited. In February 1998 the Department for the Investigation
of Police Personnel in the Ministry of Justice announced that the department
had received more than 100 complaints, mainly concerning the Border Police,
of violence against Palestinians from the West Bank and the Gaza Strip.
On 3 April 1994, Ya'qub Sulayman Diab, together with his two sons, Nidal Ya'qub Diab and Iyad Ya'qub Diab and other family members, were driving out of Kalandia refugee camp in the West Bank on their way home in two cars. As they left the camp, some soldiers on the side of the road shouted at them to stop. The cars stopped; the soldiers opened the doors and pulled out Nidal Ya'qub Diab and Iyad Ya'qub Diab and began to beat them with their fists and rifle butts. Some of the women in the cars came and tried to pull them away from the soldiers, but they were beaten as well. The soldiers arrested the two brothers. In the course of the investigation, the office of the Legal Adviser to the IDF's Central Command only questioned two members of the IDF. Of these the only eyewitness was a potential suspect who said that he and other soldiers "were forced to exercise reasonable force" to search the brothers. The five members of the Diab family present at the incident and other soldiers present were not interviewed. On the basis of this incomplete investigation, the Legal Adviser to the Central Command concluded that "the soldiers in question acted properly" and closed the investigation without taking action. The cases where those involved in brutality are actually brought to justice and punished tend to be dramatic, public and inescapable. For instance, in a famous case, by chance captured on videotape by a witness from a rooftop and played on "Israeli" and international television, two border policemen were shown beating up and humiliating Palestinian labourers in Jerusalem for more than half an hour in October 1996. They kicked some of the Palestinians in the head, kneed another in the stomach, rode one like a donkey and forced others to do push-ups. The policemen slapped the Palestinians after forcing them to lie flat on the ground. The border police involved were charged with aggravated assault and abuse of authority and sentenced to eight months in prison and a further 12 months suspended.
"Israeli" human rights organizations have attempted to file complaints and claims for compensation for victims without success. In an assessment made by the "Israeli" human rights organization Hamoked of 441 cases of Palestinian complaints against members of the IDF since 1987, in only seven cases were soldiers tried before a military court(See footnote 12). Among the reasons for failure of these complaints, the report stressed the lack of seriousness of the investigations (in most cases the soldiers were not even located) and the tendency to believe soldiers' accounts of incidents instead of the Palestinians involved.
Failure to Achieve
Change
Notwithstanding world attention on the "Israeli" authorities' use of
torture, the testimonies of hundreds of victims, the pressure of human
rights activists and local and international human rights organizations,
there has been a failure to achieve any real change. Torture continues
to be used in "Israel" because the majority of "Israeli" society seems
to accept that the methods used are a legitimate means of combatting ''terrorism''.
The "Israeli" public's views have, if anything, been hardened in the (
).
Palestinians, Lebanese and other non-"Israeli" nationals have become the
''acceptable'' victims of torture: the methods are acceptable because they
are not used against "Israeli" Jews. The use of similar, though less severe
methods, against any "Israeli" Jew has led to immediate protests. For example,
when Oren Edri, an officer in the IDF arrested with other Jewish militants
in September 1994, complained that he was hooded for hours, roughly handled,
insulted, and confined to a cell with cockroaches and rats, an immediate
commission of inquiry was set up.
The "Israeli" Government has answered thousands of letters from Amnesty International members by saying that the interrogation methods used by the GSS do not constitute torture and are ''according to the law''. (The "Israeli" authorities continued to make this claim even after one method of "physical pressure" - violent shaking - had actually caused the death of a detainee.) Thus the unequivocal declaration by the Committee against Torture that "Israel's" interrogation methods constitute torture was an important development in the campaign against torture.
"Israeli" Government responses also stressed that detainees were ''terrorists'' and that physical pressure saved lives from "terrorist" attacks. Yet there can never be any excuse for the use of torture. The Convention against Torture states in Article 2 that:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.
In February 1996, Amnesty International sent a delegation led by its Secretary General to discuss its concerns, including about torture and ill-treatment, with the "Israeli" Government. During the visit, the GSS Bill which would have specifically allowed "physical pressure" was withdrawn. The bill has since been reintroduced, as detailed above.
Protests have so far achieved only small results. There appears to be more control of torture: the occasional use of dark glasses instead of hoods. But detainees are still deprived of sleep for days and held in painful positions for hours. Violent shaking continues to be used, albeit in more limited fashion. With the statement of the Committee against Torture that the interrogation practices of "Israel" constitute torture, there is general acceptance by the international community that "Israel" has effectively legalized the use of torture. But the Supreme Court has adjourned its consideration on petitions challenging the use of torture and appears reluctant to declare its use illegal.
Unfair Trials
There has been little change over the past five years to the military
justice system in the Occupied Territories. Palestinians continue to receive
unfair trials in the military courts set up by "Israel" for the West Bank
and the Gaza Strip. Convictions are almost invariably based exclusively
on the accused's confession, usually extracted by the use of torture and
ill- treatment. It appears to Amnesty International that there is a presumption
of guilt rather than innocence in these courts.
All Palestinians in the Occupied Territories arrested by the "Israeli" security services and accused of ''security crimes'', and many who were accused of offences which seemed not necessarily politically motivated, are tried by military courts, set up after 1967 by military orders and administered by the IDF. Palestinians from the Occupied Territories may also be tried in "Israeli" military courts for offences committed in Area A, the area under the direct jurisdiction of the PA. However, although the jurisdiction of Military Tribunals in the Occupied Territories theoretically still extends to "Israelis" resident in the Occupied Territories, in practice no "Israeli" is ever tried before a West Bank or Gaza military court for any offence committed in the Occupied Territories. They are tried in the civil courts within "Israel".
Military courts presided over by a single judge may pass sentences of up to five years; three-judge courts can pass any sentence, including the death sentence (a sentence rarely imposed and never carried out). The IDF military commander appoints the ''legal judges'' (military officers with legal training who may act as single judges or presidents of three-judge courts) on the recommendation of the IDF Military Advocate General. The court president may appoint permanent or reserve officers without legal training as other judges of the panel. Prosecutors are military, but the defendant has the defence lawyer of his or her choice. Since 1989 there has been a limited right of appeal to a Military Court of Appeals, though only the sentences of one-judge courts are subject to appeal. Both the original verdict and the appeal verdict may be reviewed by the regional commander who may reduce the sentence or give a pardon.
Offences committed by Palestinians from the Occupied Territories punishable by military courts are listed in military orders and regulations of the Emergency (Defence) Regulations. Military Order 378 includes offences such as murder (for which the death penalty is provided); arson (punishable by 10 years' imprisonment); throwing objects such as stones (punishable by up to 10 years, with the punishment increased to 20 years if thrown with harmful intent at a moving vehicle); and acts against the IDF, such as insulting, injuring and obstructing the work of soldiers. No one is now sentenced for displaying the Palestinian flag or being a member of Fatah, as happened before September 1993, but Regulation 85 which punishes offences such as performing a service or other activities for an ''unlawful association'' is still used to punish suspected members of Hamas, Islamic Jihad or members of student organizations which the GSS claims are fronts for the organizations.
The procedure used in the military courts is drawn from Military Order 378 itself, supplemented by "Israel's" 1995 Military Justice Law and general principles of "Israeli" law on procedure. Hearings are normally open unless the court, for reasons of security, decides to hear evidence in camera. Following "Israel's" redeployment in the West Bank and the Gaza Strip, the "Israeli" authorities began to hold extension of detention hearings for detainees in camera in prisons inside "Israel". The Association for Civil Rights in "Israel" challenged this practice arguing that legal proceedings, as a matter of principle, should take place in public. In 1997, the IDF agreed to set up court rooms adjacent to prisons so that hearings could be held in public.
The number arrested and tried under the military justice system now is smaller than the numbers in the years during the intifada when thousands were tried each year. The fact that there are fewer trials should mean that more time can be taken over them, standards can be higher and that trials are not so summary. However, people still remain in detention a long time, frequently more than a year, awaiting trial.
The system is still ''confession-based'': normally the detainee is sentenced on the basis of evidence given by members of the "Israeli" security forces and the detainee's own confession given under duress. Sometimes defendants try to challenge the confession stating that it was extracted under torture; at that stage a ''trial within a trial'' takes place and the court assesses the truth of these allegations. However, the fact that treatment amounting to torture and ill-treatment is permissible against Palestinian detainees means that such ''trials within trials'' within the military courts will fail; the interrogation of a detainee was carried out ''according to the law''.
A problem with all military trials is that there appears to be a presumption of guilt rather than of innocence. The detainee who has not confessed to an offence will have been released or placed under administrative detention and not brought to trial; thus almost invariably those tried have signed confessions. Lawyers assume that their client is likely to be found guilty and that the best action they can do for him or her is to obtain the minimum possible sentence through plea bargaining. While recognizing that plea bargaining is an element of many judicial systems, Amnesty International has long been concerned that coercive elements connected to plea bargaining in trials before military courts deprive defendants of a fair trial(See footnote 13).
Lawyers complain that sentencing is arbitrary and varies widely: lawyers not only engage in plea-bargaining but also seek to find a more sympathetic judge. There is some evidence to suggest that sentences have increased over the past five years: in 1994 the average sentence for stone-throwing was four months; now (with stone-throwing greatly diminished) the average sentence is more like 10 months.
When making submissions about the length of sentence, military prosecutors will argue that the fact that an offence was committed after the "Israelis" and Palestinians entered into a peace agreement is an aggravating factor as it is as an offence against the "spirit of Oslo". Defence lawyers, likewise, will argue that the fact that an offence was committed before 13 September 1993 is a mitigating factor. Military judges have been open to such arguments and take this consideration into account in imposing sentences.
Killings
Between 9 December 1987 and 13 September 1993, about 1,070 Palestinian
civilians were killed by the "Israeli" security forces in the Occupied
Territories. They were extrajudicially executed, targeted by "Israeli"
death squads, or unlawfully killed in demonstrations or riots, and at checkpoints.
Some died because of the use of supposedly non-lethal means of control;
for instance up to 50 people (a number always disputed by "Israeli" authorities)
are said to have died from the use of tear gas in enclosed spaces.
The number of killings since the signing of the Oslo Agreement has greatly diminished; but between 14 September 1993 and 30 May 1998, over 250 Palestinians have been killed by the security forces. The vast majority were unlawful killings, carried out in contravention of international standards regulating the use of force. There continues to be almost total impunity for unlawful killings of Palestinians by the "Israeli" security forces.
Extrajudicial
Executions
The cases of extrajudicial executions known to Amnesty International
over the past five years typically involve people believed to be leaders
of Hamas or Islamic Jihad (
). Thus Hani 'Abed, associated with Islamic
Jihad (
) was killed in a car bombing in the Gaza Strip in November 1994.
Fathi Shikaki, a leader of Islamic Jihad in exile was gunned down in his
hotel in Malta in October 1995 and Yahya 'Ayyash, a member of Hamas (
)
was killed by a bomb placed in a mobile telephone he was using in Gaza
in January 1996. Following their deaths, statements by "Israeli" officials
implied that those responsible for armed attacks against "Israelis" might
be targets for extrajudicial executions. "Israel" neither declared nor
denied responsibility for the deaths.
Other killings apparently carried out by "Israeli" agents involved
other groups opposed to the peace process; for instance, four Palestinian
men - Jihad Assi, Ali Mafarja, Ashraf Mafarja, and Muhammad Assi - were
shot when leaving the village of Beit Liqya in the West Bank by car. They
were reportedly fired on by men in plain clothes lying in wait in a Volkswagen
transporter van. The Volkswagen van then allegedly left the scene and members
of the IDF collected the bodies a few minutes later. Two of the Palestinians
were members of the PFLP, which opposes the peace process, and were wanted
by the security services.
In September 1997, two "Israeli" Mossad agents attempted to inject poison into the ear of Hamas leader Khaled Mesh'al in Amman, Jordan. The two agents were later arrested. "Israel" acknowledged that it had tried to kill Khaled Mesh'al and that the orders for the extrajudicial execution had been approved by the Prime Minister himself. A Commission of Inquiry was set up but its remit was confined to examining the reasons for the failure of the attempted assassination, rather than questioning why it was carried out at all. The action of the "Israeli" Government and the February 1998 report of the Commission of Inquiry showed "Israel's" contempt for the right to life, by restating the principle that for "Israel's" security all international rules of conduct could be broken:
The decision to carry out the attack in Jordan was based on the principle that no place in the world should be allowed to serve as a safe harbour for those who plan to carry out murders and acts of terror in "Israel".... The commission does not question this policy, but nevertheless proposes that the government discuss it, define its scope and establish ground rules for its implementation.
Other Unlawful Killings
Scores of people have been unlawfully killed by members of the "Israeli"
security services in circumstances where this could not be justified under
international standards. "Israeli" Open-Fire Regulations allow the non-lethal
use of firearms to disperse demonstrations or to arrest suspects; many
Palestinian civilians have been killed in these circumstances. On 6 April
1998, the "Israeli" Police shot and killed Muhammad Bilal Salaymeh after
giving chase to his car. The "Israeli" Police Spokesperson stated on 28
April that the driver was killed after he did not respond to the calls
of the police to stop at a checkpoint and fled. However, eyewitnesses saw
a police car overtake his vehicle and block his car horizontally. A police
officer got out, stood in front of the Palestinian vehicle and fired several
times directly at the driver. Muhammad Bilal Salaymeh died from a fatal
wound in his back.
Deaths in the context of demonstrations and disturbances are on a lesser scale than during the 1987-93 intifada. But they are still numerous. The highest death toll came during what is known as the September 1996 intifada, when 65 Palestinians, including 37 members of the Palestinian security services, 16 members of "Israeli" security services and one Egyptian were killed during demonstrations and clashes throughout the Occupied Territories. "Israeli" security forces opened fire during demonstrations and members of the Palestinian security forces returned fire. Helicopter gunships also shot at individuals in crowds. Many Palestinian civilians who died appeared to have been killed unlawfully.
Unlawful killings which occur during demonstrations are often caused by rubber- coated metal bullets and many of those killed have been children. For instance, in November 1997 an eight-year-old boy 'Ali Jawarish was killed after a demonstration outside Rachel's Tomb in Bethlehem. Joel Greenberg, the correspondent for The New York Times witnessed the incident and described what he saw to the "Israel" human rights organization B'Tselem:
Behind Rachel's Tomb I saw several dozens of children who were standing near tyres that apparently had been burning before I arrived. Most of the children were about ten years old.... I was standing near a group of soldiers who were standing near the tomb. There were stones on the road, apparently from the confrontation that had taken place earlier. During the time that I was there I saw one stone thrown.... The soldiers caught three children who appeared to me to be about ten years old.... At the time that those three were caught, the rest of the children ran away and dispersed. At that moment I saw one of the soldiers kneeling and aiming his gun at the children. He fired one shot towards the fleeing children. In my opinion it was a rubber bullet, judging from the sound of the shot and from my experience, but I am not certain. When the soldier fired he was about 15-20 meters away from the fleeing children. At the stage of capturing the children and the children fleeing no stones were being thrown....
When the soldiers retreated I noticed a boy aged about nine or ten lying motionless on the ground. ...I saw, to the best of my recollection, a wound on the right side of the forehead and a lot of blood flowing. Later the doctors at Muqassed Hospital and at Beit Jala told me that the child's brain had spilled out.
No independent public inquiry was carried out into the death. An IDF spokesperson said that 'Ali Jawarish ran across the line of fire. However, B'Tselem said in a report on the killing that the soldier who killed 'Ali "knelt down and aimed from a range of 15-20 metres.... Following the shooting, the soldiers left the scene without assisting Jawarish."
Such killings contravene international standards regulating the use of force and firearms, including the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Principle 9 states:
Law enforcement officials shall not use firearms against persons except in self- defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional use of firearms may only be made when strictly unavoidable in order to protect life.
International standards also require the authorities to conduct a prompt, thorough and independent investigation where the use of force of firearms by law enforcement officials results in death. However in many of the cases reported to Amnesty International of killings by the "Israeli" security forces, investigations are inadequate . The officers responsible rarely appear before an inquiry; if they do so they are rarely punished; if they are punished the sanction is trivial in relation to the loss of a life.
The official "Israeli" explanation given in such circumstances has normally been that shootings have occurred while the lives of members of the security forces were in danger from rioters, but evidence has shown: a tendency to overreact and to use excessive force; targeting the head and upper part of the body; and shooting at ranges closer than those allowed in the Open Fire Regulations, which regulate the use of firearms by members of the "Israeli" army.
Impunity for Killings
As was the case during the intifada, there continues to be impunity
for the vast majority of perpetrators of unlawful killings. The Military
Advocate General's office, which is responsible for investigating killings
by the IDF in the Occupied Territories, as well as other agencies responsible
for investigating killings by the "Israeli" Police and Border Police, do
not carry out thorough investigations. It is very unusual, for example,
for these agencies to interview Palestinian witnesses despite many offers
from human rights organizations to assist in arranging interviews. They
normally interview only members of the "Israeli" security forces who witnessed
the incident. The vast majority of cases are then closed by the Military
Advocate General's office. It is rare for the office to insist that investigations
are reopened because of their lack of thoroughness.
On 5 February 1994, Khiri 'Abd al-Jabr Hamdan was shot dead by the IDF in Bala'a village, Tulkarem district. He was mentally ill. "Israeli" soldiers came to the village to arrest car thieves. Some soldiers asked Khiri Hamdan to halt. He did not stop and fled down into a wadi. The soldiers pursued him, assisted by a helicopter. Shots were heard in the course of the chase. Afterwards, the soldiers informed various witnesses that Khiri Hamdan had been shot from the helicopter.
The Military Advocate General's office informed B'Tselem that "the firing procedure was performed according to orders". The investigation had shown "that the deceased was identified as a suspect in committing a dangerous crime due to the circumstances of his escape, near the checkpoint, in the course of a curfew in the village, which is known to be a village in which there are many terrorists, the appearance of the deceased and the fact that he did not heed repeated calls to stop and repeated firing in the air." The Open Fire Regulations do not permit the use of lethal force to arrest a suspect and indicate that shots should be fired at the legs. Khiri Hamdan was shot in the stomach.
In the few cases where action is taken against members of the security forces, it is normally disciplinary action rather than action in military courts. The military courts, when they convict members of the security forces, impose very light sentences.
On 13 November 1993, members of the IDF shot Iyad Amali in a car. The car was approaching a temporary checkpoint near the village of Salfit in the West Bank. According to the driver, he did not see the checkpoint and did not hear anyone telling him to stop. He stated, "I started driving up the hill, and on top I saw many lights and projectors, which prevented me from continuing. I stopped because I could not see. Suddenly someone got out of a vehicle with a lighted projector and aimed it at me, and then shooting started, a lot of shooting." Iyad 'Amali was killed as a result. In November 1996, four soldiers were convicted by a military court for negligently causing his death. The court fined each soldier one agora, equivalent to about US$0.03.
RECOMMENDATIONS
The following recommendations relate only to the areas considered in
this report: the arbitrary arrest and detention without charge or trial
of political detainees; the use of torture; unfair trials; and unlawful
killings carried out by the authorities concerned.
1) All detainees, whether from "Israel" or from "Israel's" occupied territories, whatever the offence of which they are accused, should be brought promptly before a judge following their arrest. All detainees should be given regular and confidential access to lawyers of their choice without delay after their arrest, as well as prompt and regular access to their families.
2) Administrative detention should be ended and all administrative detainees immediately released, unless they are promptly charged and given a fair trial according to international standards.
3) The "Israeli" Government should revoke all guidelines allowing torture or ill-treatment. The government should make a public statement condemning all forms of torture or other ill-treatment in all circumstances, disseminate this statement among all security forces and ensure that torture or ill-treatment is ended. All allegations of torture or ill-treatment should be independently investigated, a report on the investigation should be made public within one month, and any member of the security services found to have used torture or ill- treatment should be brought to justice. Training should be given to all relevant units in respecting the right to physical and mental integrity of the detainee.
4) "Israel" should review the military justice system in the Occupied Territories in the light of international fair trial standards. In particular, it should address such aspects as the use of confessions extracted under duress; the coercive use of plea bargaining; undue delays and inconsistent or punitive sentencing.
5) The "Israeli" Government should ensure that no member of its security forces carries out extrajudicial executions either in "Israel" and the Occupied Territories or elsewhere and should revise its policy in this regard accordingly.
6) The "Israeli" Government should revise their open fire guidelines to ensure that they conform with UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and should ensure that all members of "Israel's" security forces strictly adhere to these guidelines.
7) The "Israeli" Government should ensure that there shall be a thorough,
prompt and impartial investigation of any killing by the security forces.
Amnesty International believes that the established investigative procedures
carried out by the "Israeli" authorities are inadequate and all investigations
should be made by an independent commission of inquiry in accordance with
the UN Principles on the Effective Prevention and Investigation of Extra-Legal,
Arbitrary and Summary Executions.
2 The killing of non-combatants and prisoners, the taking of hostages and the use of torture are prohibited Article 3 common to the four Geneva Conventions of 1949.
3 Principle 15 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that the communication of a detainee with the outside world, in particular his family and counsel, should not be delayed for more than a matter of days. The UN Special Rapporteur on Torture has underscored the role of incommunicado detention in facilitating torture and has called for detainees to have access to legal counsel within 24 hours (E/CN.4/1995/34 page 173, para. 926(d)).
4 See "Israel"/Occupied Territories: Administrative detention: Despair, uncertainty and lack of due process, April 1997, AI Index: MDE 15/03/97.
5 See "Under constant medical supervision" Torture, ill-treatment and health professionals in "Israel" and the Occupied Territories, August 1996, (AI Index MDE 15/37/96).
6 In June 1996 it was reported that the interrogator in question had been acquitted on most counts during a disciplinary inquiry and returned to work. He was said to have been convicted of not carrying out his duty but no information was given as to what this entailed.
7 Legitimizing Torture: The "Israeli" High Court of Justice Rulings in the Bilbeisi, Hamdan and Mubarak Cases, B'Tselem, January 1997.
8 The UN Basic Principles on the Independence of the Judiciary, Principle 6
9 E/CN.4/1992/17, page 102, para.280.
10 CAT/C/XII/CRP.1/Add.5 28 April 1994
11 CAT/C/SR.297/Add.1, page 3, para. 5.
12 Escaping Responsibility: The Response of the "Israeli" Military Justice System to Complaints against Soldiers by Palestinians, November 1997, HaMoked.
13 See "Israel" and the Occupied Territories: The military
justice system in the Occupied Territories: Detention, interrogation and
trial procedures, July 1991, AI Index: MDE 15/34/91.
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** This term is absolutely unacceptable. "Israel's" Army is that of war and aggression for it protects land gained by force, confiscation and war in contradiction with the simplest rights of human confessed by the international laws and conventions.