Law works in the world not just by the imposition of rules and punishments but also by its capacity to construct authoritative images of social relationships and actions, images [that] are symbolically powerful.
The Israeli state has made prodigious use of law to maintain and legitimize its rule over Palestinians in the West Bank and Gaza, and to punish and thwart resistance. Three bodies of law have been particularly important: international humanitarian law (especially the Fourth Geneva Convention), the British Defense (Emergency) Regulations of 1945, and original Israeli military laws. Israeli domestic law also figures into an analysis of Israeli rule in the West Bank and Gaza because it was extended to annexed and appropriated areas and to citizens who have settled there.
Opponents and critics of Israel's occupation also have made prodigious use of law to contest and resist Israeli policies deleterious to Palestinians, and to frame Palestinian aspirations and interests as rights claims. Indeed, it was Israel's enthusiasm for law and the ornate legalism of official discourse that catalyzed and propelled the development of a local human rights movement, which served as the harbinger of legalistic resistance. Because of the importance the Israeli state attaches to law and to its own image as law abiding, legal challenges and critiques could not be ignored; rather, they provoked or necessitated refinements, reforms, and defensive justifications for the state's positions and policies.
In this chapter, I discuss these issues in detail to present a social history of legal discourses and conflict in Israel/Palestine. I begin with the history of the military administration instituted by Israel in the West Bank and Gaza, and the legal doctrines formulated to support state policies in these areas. I situate these developments within the broader context of the conflict to show how Jewish historical claims, and Israeli political ambitions and national interests, as well as security contingencies have informed official legal discourse-what Israeli officials and supporters of the state could claim as “legal” and why. I then track the subsequent development of a counter-discourse that criticizes and challenges the state's interpretations and uses of law, and the claims of legality of state policies and practices that harm the interests or infringe on the rights of Palestinians. The final section focuses on the legal debates, policy developments and litigation relating specifically to interrogation and torture.
The 1967 war massively transformed the territorial and demographic maps of the Middle East, and the political agendas of the various parties to the Arab-Israeli conflict. While there is no debate that the Israeli military launched the first strikes in 1967, there is disagreement as to whether this was a “defensive” war to preempt an impending attack by Arab states, or an “offensive” war waged for the purpose of conquering additional territories. The official Israeli position holds that the neighboring Arab regimes incited hostilities through incessant warmongering and preparations to attack, and that Israel preempted the risk of a multi-front assault by striking first. According to this view, the Arabs started the war and thus bore responsibility for its outcome, including Israeli conquest of territories on all fronts.
A consideration of the history of the military administration in the West Bank and Gaza provides an interesting perspective on events and developments leading up to the 1967 war. The Israeli military court system was established on the third day of the Six Day War as one of the first official acts of the military administration. This timing is significant because it suggests not only the primacy that the state attaches to law but also a high degree of preparedness for war and occupation. Israeli preparations for military occupation began in the early 1960s, spurred by political instability in Jordan in 1963. These plans were informed by Israel's brief experience of occupying Gaza during the 1956 invasion of Egypt by Israel, Britain and France.
The most extensive and detailed planning for occupation occurred under the direction of the Military Advocate General (MAG). Meir Shamgar, who served as the MAG from 1961-68, provides an account of his unit's activities in the years preceding the war. According to Shamgar, in the early 1960s, he developed courses for officers of his unit through which they “carried out skeleton exercises in military government problems.” He also prepared a comprehensive Manual for the Military Advocate in Military Government, which constituted
moveable emergency kits including basic legal textbooks and other material necessary for the performance of their duties, and inter alia a large set of precedents of military government proclamations and orders, vital at the initial stages of military government, as well as detailed legal and organizational instructions and guide-lines. These facilitated, from the outset, the legal and administrative activity of the sections, according to a previously planned scheme.
In developing the MAG unit's legal manual, Shamgar explains that he incorporated “a concise resume of the municipal law in force in the different enemy countries neighboring Israel, [although the manual] did not refer specifically to the modalities of applying [them because it] was prepared a long time before hostilities began…” The preface of the manual states:
[T]raining and exercise [in peace-time] cannot reflect precisely either the reality of an administered area or the specific circumstances of time and place…The main obvious limitation which this Manual is unable to remove is inherent in the fact that it was prepared before the development of the actual circumstances in which it will have to be applied in practice. Not all problems and their solutions could be foreseen…
In the immediate aftermath of the war, most Israeli military and political decision-makers assumed that the defeated Arab regimes would be forced to recognize Israel and pursue a diplomatic resolution to the conflict in order to regain their own lost territory. However, the prospect of a land-for-peace exchange among states would apply only to the Syrian Golan Heights and the Egyptian Sinai Peninsula. The conquest of the West Bank and Gaza-the remainders of historic Palestine-raised entirely different issues for Israel. Of particular importance were the fact that the West Bank and Gaza were not sovereign territories of the states ruling them at the time of the 1967 war (Jordan and Egypt, respectively), that their Palestinian inhabitants had no state of their own to enter into negotiation on their behalf, and that these areas (albeit the West Bank more than Gaza) constituted part of the ancient Jewish kingdom.
Israel's conquest of the West Bank and Gaza with their 1.5 million Palestinian inhabitants (a population now numbering almost three million) was, in the words of Shabtai Teveth, a “cursed blessing.” It transformed the “Palestinian problem” from a largely external matter of defending borders into an internal matter of government. After 1967, one-third of the population living under Israeli rule was Palestinian Arabs. Territorially, the conquest provided Israel with new strategic depth, which was capitalized upon immediately through the confiscation of sparsely populated areas along the Jordan valley for military settlements. But politically, the problems of governing such a sizeable population of “enemy civilians” were considerable, more so in Gaza than the West Bank; the Gaza Strip is one of the most densely populated areas in the world, and over 60 percent of the population is refugees from the 1948 war, living in squalid, crowded camps.
Palestinians, who found themselves literally over night living under Israeli military rule, were shocked by the Arab defeat and unprepared for the new arrangements. For the first several years, manifestations of open resistance were limited, for the most part, to armed attacks by feda'yin (guerrillas), including some people residing in the occupied territories and others sneaking across the new boundaries of Israeli control. Palestinian feda'yin in Gaza were aided by Egypt as part of a war of attrition (1969-71), waged to offset the humiliating Arab defeat. Those based in Jordan had the benefit of a long, difficult-to-monitor border to enter into the West Bank.
Some feda'yin who were captured by the Israeli military were tried and convicted in the new military courts. But at that early stage, the court system was functioning in a rather limited capacity because the Israeli authorities were making wide scale use of administrative measures such as detention and deportation to punish and deter armed resistance. Because feda'yin generally regarded themselves as soldiers in a war of liberation, those who were captured and tried tended to regard themselves as prisoners of war.
In 1970-71, the Israeli military undertook a “pacification” campaign in Gaza to crush the armed resistance. Thousands of Palestinians (including entire families) were transferred to camps in the Sinai to undercut local assistance for fighters, and wide avenues were bulldozed through crowded camps and towns to facilitate Israeli surveillance and the movement of troops and military vehicles. The imposed quiescence provided the authorities with the latitude to institute more legalistic means of control, including expanding the use of the military court system.
The larger, long-term consequences of the 1967 war were dramatic, notably an escalation of the Israeli-Palestinian dimension of the Arab-Israeli conflict. The defeat of the Arab regimes emboldened the Palestinian resistance movement, comprised of a number of militant political factions based in the surrounding Arab states, to assume leadership of the national struggle. The Palestine Liberation Organization (PLO), created in 1964 by the Arab regimes, was taken over and transformed into an umbrella organization by these factions after the war. Ahmed Shuqueiry, the appointed PLO figurehead, was replaced by Yasir Arafat, head of the largest faction, Fatah. Despite the further fragmentation of the Palestinian people as a result of the war, the “new” PLO provided an increasingly popular symbol of national solidarity and a vehicle of national liberation.
The political agenda of the PLO conformed to prevailing tendencies across the region to interpret the stakes of the conflict in zero-sum terms; Palestinian victory was envisioned as a thorough defeat of Israel and the creation of a Palestinian state in all of historic Palestine. Israeli political discourse also propounded zero-sum visions; there was a national consensus opposing an independent Palestinian state. Rather, Palestinian national aspirations would have to be absorbed into the existing Arab states. Israeli officials sought to offset the growing popularity and influence of the PLO by promoting a states-only framework for conflict resolution. While most of the international community came to recognize the PLO as the legitimate national representative of the Palestinian people by the mid-1970s, the Israeli state was at the forefront of efforts to disqualify the PLO from playing a role in regional and international relations on the grounds that it was nothing but a terrorist organization. As far as most Jewish Israelis were concerned, Palestinians had no independent, legitimate representative, and those who supported the PLO were in effect proponents of terrorism. However, Israel did recognize the PLO in one regard: as a party to the conflict.
In the early years, the idea of retaining permanent control of the West Bank and Gaza, especially the large Palestinian population centers, was not seriously entertained within Israeli decision-making circles. However, from the outset, Meir Shamgar constructed a legal doctrine to legitimize permanent Israeli retention of at least part of the conquered areas. Prior to 1967, Shamgar had conceived that that the extension of Israeli rule over any additional part of Eretz Yisrael (i.e., the West Bank and Gaza) would not constitute a “foreign occupation” because Jews had historic rights in these areas, and because no other state had sovereign claim to them. After 1967, as a high-ranking policymaker, his views became the cornerstone of official Israeli doctrine on the legal status of the territories.
This doctrine incorporates a number of interrelated components and premises, which together reflect selective use and “original” interpretations of international humanitarian law (i.e., laws of war). First, Shamgar reasoned that Israeli control of the West Bank and Gaza did not constitute as an “occupation” because the displaced rulers, Jordan and Egypt, were themselves occupants who had seized control during the first Arab-Israeli war in 1948. Consequently, the territories' legal status in 1967 was sui generis. This is premised on the idea that territory can be deemed “occupied” in war only if it was part of the sovereign domain of the defeated and expelled state. According to Shamgar's formulation, Israel was not “occupying” but “administrating” these “disputed” areas.
A second element, which builds on the first, holds that the Fourth Geneva Convention, the most important humanitarian law pertaining to occupation of conquered territories and their civilian population, is not applicable to Israeli rule on a de jure basis. Shamgar reasoned that if Israel were to regard the Fourth Geneva Convention as applicable, this would constitute an acknowledgement of Israel's own status as an “occupant,” which, in turn, would both give Jordan and Egypt an ex post facto status as displaced sovereigns that they did not enjoy prior to their defeat, and would compromise or jeopardize Israeli prospects to claim permanent control over (all or some of) the territories in the future. The history and language of the Geneva Conventions bears upon this interpretation; they were promulgated in the aftermath of World War II to prohibit the grotesque “liberties” that the Axis powers had exercised in the areas they occupied during the war. The Fourth Geneva Convention delineates the rights and duties of “High Contracting Parties” (i.e., signatory states) vis-à-vis territories and populations of other High Contracting Parties. Since Jordan and Egypt had been occupants rather than sovereigns in the West Bank and Gaza, according to Shamgar's reasoning, they did not have the status as High Contracting Parties in these areas. And while Israel is a High Contracting Party to the Geneva Conventions, this would have no bearing on territories that are not “occupied.”
A third and somewhat contradictory component of Shamgar's doctrine was that Israel would abide by the Fourth Geneva Convention on a de facto basis, namely to respect its “humanitarian provisions.” However, Israeli officials have never specified which provisions of the Convention they do-or do not-regard as “humanitarian,” whereas the International Committee of the Red Cross, official guardian of the Geneva Conventions, regards them as humanitarian in their entirety and rejects any attempts to interpret this legislation selectively. Shamgar notes but dismisses the relevance of the ICRC's views. He writes:
From the very outset of the military government, Israel and the International Committee of the Red Cross arrived at diametrically opposed conclusions concerning the applicability of the Fourth Geneva Convention to the administered areas. This difference of views was mainly and primarily of a legal and theoretical nature, because the Israeli Governmental [sic] authorities stated several times that Israel had decided to distinguish a priori between the formal legal conclusions arising from its approach and the actual observance of the humanitarian provisions of the Convention…
A fourth component of the doctrine holds that the Fourth Geneva Convention could not be binding on Israel even if there were no dispute over the status of the West Bank and Gaza because at least part of the Convention constitutes “conventional” rather than “customary” international law. Therefore, even if the Convention were deemed applicable on a de jure basis, it would not supercede “local” laws unless the Israeli Knesset enacted the Convention as domestic legislation or until the state recognized that it has acquired status as customary international law. In contrast to Israel's position, the international community overwhelmingly regards the Geneva Conventions as customary international law.
A crucial aspect of this doctrine is the way in which Palestinian statelessness has been made legally significant. By interpreting international humanitarian laws as pertaining exclusively to the rights and duties of sovereign states (“High Contracting Parties”), it was possible to argue that stateless people in militarily conquered areas are not their intended beneficiaries. This assumes that because there never has been an independent state of “Palestine,” the Palestinian people could not be the rightful sovereigns of the West Bank and Gaza because there is nothing in international law that prescribes the recognition of sovereignty to a “non-state,” nor anything that demands the creation of a heretofore non-existent state in territories seized in war. Nodding to the de facto applicability of undefined “humanitarian provisions” in the Fourth Geneva Convention was a means of acknowledging that Palestinians have rights as individuals, but not as a national entity. According to this doctrine, Israel is under no legal obligation to withdraw from any part of the West Bank and Gaza to allow them to revert back to their pre-1967 status, or to concede to the creation of a Palestinian state.
Shamgar's focus on the status of land (holding that it was sui generis) rather than the population (with national rights to self-determination) was a strategic maneuver to separate the land from the people residing there. The various elements of the doctrine and the interpretations of international law on which it was based became the basis of official Israeli legal discourse and policy-making regarding the state's rights and duties in the West Bank and Gaza. The doctrine was reinforced by rulings of the Israeli High Court of Justice (HCJ). Within a domestic Israeli context, HCJ support was crucial to legitimizing these interpretations, and gaining public sanction for activities and policies that violate the letter and/or spirit of the Fourth Geneva Convention, such as the settlement of Israeli citizens in the territories, the deportation of Palestinians, house demolitions and other forms of collective punishment. However, the international community never accepted the official Israeli interpretation that the West Bank and Gaza are not occupied, or that Israeli rule is not governed by the Fourth Geneva Convention and other international laws.
This contradiction between international opinion and the official Israeli position suggests a larger tension between the rights of sovereign states and the trend in international legal discourse since World War II, which seeks to curb the excesses of state autonomy. In charting such an original course for itself, the Israeli state has reinforced its own sovereign authority locally and internationally by resisting or ignoring the authority of the international community in the interpretation of humanitarian laws governing states in war and conflict. However, Israel did not reject the importance of legality to assessments of its rule in the West Bank and Gaza. Rather, officials and state supporters have maintained that Israeli policies and practices are legally viable, if different from international opinion; that Israel has the right, as a sovereign state, to interpret its obligations independently because these interpretations arise out of actual conditions on the ground (including historic Jewish rights and the imperatives of national security); and that the state cannot be forced to accept alternative interpretations because these are advanced in attempt to constrain Israel politically (and perhaps to benefit its enemies). Moreover, international criticism of Israel could be countered with criticism of the international community, whose historic hostility and/or indifference to the rights and the fate of Jews culminated in the Nazi Holocaust. Criticisms were taken as evidence of an enduring global anti-Semitism, a perception reinforced by Israel's treatment as a pariah by the General Assembly of the United Nations, and international recognition and support for the PLO.
Meir Shamgar's other crucial contribution to official doctrine was instituted after 1968 when he became Attorney General. He established the right for Palestinians to submit petitions to the HCJ to challenge the administrative policies and practices of any state institution, including the military. He did this by never raising “the plea of a lack of locus standiof alien enemies who were inhabitants of territory not under Israeli sovereignty…” This right contributed significantly to Israeli claims and pronouncements that the administration of the territories was “enlightened,” “benign,” and unique in the history of war: Israel was under no legal obligation to subject the military administration to domestic judicial oversight. To do so, Shamgar argued, demonstrates the state's commitment to the rule of law.
Military government did not succumb to the dangers inherent in the exercise of absolute power… Furthermore, the individuals manning the diverse positions in military government, were inevitably the products of their culture and carried with them the impact of the legal and moral concepts of their society….It seems that the institutional pluralism and the dispersion of power in the Israeli political system and to a very large extent the supervisory powers of the Supreme Court of Justice, imposed additional constraints and ensured the prevention or correction of transgressions.
Although the role of the HCJ is parenthetical to the subject of the military court system, it does pertain to questions and debates about the legality of Israeli rule in the West Bank and Gaza. Utilizing legal concepts of “reasonableness,” “justicability” and “necessity,” the HCJ has reviewed the activities of the military administration when petitioned to do so. In practice, however, the HCJ rarely has rendered decisions that provide substantive relief to Palestinian petitioners, tending either to find in favor of the state or to dismiss the petitions on the grounds that they raise issues that are not justiciable. For example, in a 1972 case (Abu Hilu et al. v. Government of Israel), the HCJ decision stated:
The court is not the proper place to decide whether a military-security operation…--if grounded in law and undertaken for reasons of security--was indeed warranted by the security situation or whether the security problem could have been resolved by different means…[I]ssues related to the army and defense, similar to issues of foreign affairs, are not among the subjects fit for judicial review.
The HCJ has played an important role in lending support and credibility to military and administrative policies that have negatively affected Palestinians. The availability of judicial review maintains a perception among the majority of Jewish Israelis, who hold the court in the highest regard, that such oversight guarantees that Palestinians' rights are adequately safeguarded under the prevailing circumstances, and that the ways in which the state interprets its own rights and duties in the territories is legal. This perception has been fortified by the fact that over the decades Palestinians have brought thousands of petitions before the HCJ.
The actual record of the HCJ, however, defies such perceptions that the Court has restrained the state in its policies toward Palestinians in the West Bank and Gaza. David Kretzmer, who published a detailed study of cases from the occupied territories, writes:
The Court has not seen itself as a body that should question the legality under international law of policies or actions of the authorities, or should interpret the law in a rights-minded fashion. On the contrary, it has accepted and legitimized policies and actions the legality of which is highly dubious and has interpreted law in favor of the authorities.
Israel's official legal doctrine maintains that the conquered territories are separable from the Palestinians residing there. This made it possible to legalistically justify the extension and entrenchment of Jewish control over this land. This “ethnonational” specification is crucial to understanding the reasoning and the policies that ensued. Israel's claims to the land are grounded in the idea that the Jewish nation has legitimate historic rights to these areas because they were the site of the ancient Jewish kingdom. Indeed, the official term for the West Bank became “Judea and Samaria” to mark this history and claim. As this has translated into policy, among Israeli citizens, only Jews are allowed the “right” to settle in the territories.
The process of extending domestic Israeli jurisdiction into the West Bank and Gaza began immediately. On July 2, 1967, only weeks after the war, the Knesset enacted a law giving domestic Israeli courts concurrent jurisdiction with courts in the territories. The purposes of this law were to ensure that Israeli citizens would not be subject to military and emergency laws used to govern Palestinians, and to provide an alternative judicial venue than the military courts to try those accused of committing offenses in the territories. In an explanatory note, it was stated that this law was not intended to apply to “a person who is a resident of the territories,” meaning a Palestinian. A decade later, when tens of thousands of Israelis had become “residents” of the territories (i.e., settlers), a further clarification was made, stating that the law applied exclusively to people “registered in the [Israeli] Population Register.”
The dual legal system in the West Bank and Gaza is constituted through separate jurisdictions, laws and legal institutions for Israeli citizens and Palestinians. The system that applies to citizens is, for all intents and purposes, an extension of Israeli sovereignty into the territories and amounts to a de facto annexation. The extension of domestic laws and access to domestic legal institutions to citizens who took up residency in the West Bank or Gaza as settlers profoundly reduced-if not altogether erased-the legal significance of the Green Line as far as the rights of Jewish Israeli citizens are concerned.
For Palestinians in the West Bank and Gaza, virtually all aspects of their lives have been related to Israeli security and regulated by military and emergency laws. Israeli military officials have made abundant use of their law-making powers and prerogatives to generate a vast body of original military legislation, and have justified this as their right according to international law. The Fourth Geneva Convention establishes the right of an occupying force to legislate original military orders as well as to amend existing legislation (i.e., local laws) to allow for the contingencies of security and public order. However, when faced with criticism that the content and enforcement of some military orders violate the Fourth Geneva Convention, the official response has tended to emphasize that the Convention is not binding on Israel in these areas on a de jure basis. In other words, the Fourth Geneva Convention was drawn upon to justify the making of law, but rejected as a framework for the content of law.
By the early 1990s, the Israeli military had legislated over 1,300 orders for the West Bank and over 1,000 for Gaza. Although Israeli authorities claim that military orders are properly promulgated and distributed in Hebrew and Arabic, the military administration has never published a comprehensive compendium of orders in force in the territories. Furthermore, assessing the enforcement of this legislation has been difficult because of the scarcity of publicly available information about rulings of the military courts.
In addition to Israeli military orders, Israel also has used the British Defense (Emergency) Regulations, 1945, to govern Palestinians. These laws date from the British Mandate over Palestine. Ironically, when applied to the Jewish community prior to 1948, Jewish leaders had condemned these laws as outrageous and reprehensible. At a 1946 meeting of the (Jewish) Lawyers Association, Dr. Dunkelbaum (who later became a High Court justice) said, “The laws contradict the most fundamental principles of law, justice and jurisprudence. They give the military and administrative authorities the power to impose penalties which, even had they been ratified by a legislative body, could only be regarded as anarchical and irregular.”
However, after independence, Israeli officials decided to maintain the British Defense Regulations in order to utilize their emergency powers while deflecting responsibility for their draconian character to the British, who had imposed them in the first place. In the early years of statehood, right-wing Jews feared that the British Defense Regulations would be used by the Labor government against them, but Jewish opposition dissipated in 1951 when it became unwritten policy that they would not apply to Jews, only to Arabs who had no influence over the state's legislative policies.
Although the British Defense Regulations were used against Arab citizens of Israel for several decades, the first challenges to their legality were mounted in the HCJ on behalf of petitioners from the West Bank and Gaza after 1967. One type of challenge contested the state's right to use these laws at all because the British revoked the Defense Regulations on May 12, 1948, several days before the Mandate ended. Thus, they were no longer in effect on May 15 when Israel declared independence. According to this argument, the Regulations could not be “maintained,” but rather would have had to be reissued as original Israeli legislation. The official Israeli response countered that the Regulations remained in force because the British did not publish the revocation order in the Palestine Gazette, thus terming their cancellation a “hidden law.” This position was upheld and confirmed by the HCJ in 1979.
A second type of challenge relates to the legality of the British Defense Regulations on the grounds that they have become anachronistic in the post-World War II era because many of their provisions have been outlawed by developments in international law. The official position holds that Israel is bound by international law--including the Fourth Geneva Convention-to maintain the Regulations in the West Bank and Gaza as part of the “local laws” in force at the time of the conquest. This is based on the assertion that the Regulations remained in effect because the Jordanian and Egyptian governments never canceled them (thus imputing that these states also rejected the validity of the British revocation), despite that they were never used in either region between 1948-67. Thus, the Fourth Geneva Convention was drawn upon for the purpose of justifying the maintenance of the Regulations as local laws, while at the same time the Convention was disregarded because it explicitly prohibits certain provisions of the Regulations. The rationale for this contradiction is premised on the principle that local laws have precedence over “conventional” international laws.
From the beginning of the occupation through the end of the 1970s, a few scholars wrote critically about Israeli policies in the West Bank and Gaza and the legal premises underlying them. But these works did not constitute a comprehensive critique of the official legal doctrine, or of the legality of the laws enforced in the territories. Nor was much attention focused on law or legalism in scholarly writing about the Palestinian national struggle.
This general inattention to law extended to the Israeli military court system, about which very little was written in the first decade of occupation. One possible explanation is that the military courts tended to be regarded by everyone as a space where resistance “ended.” Viewed in this light, resistance was seen as-and limited to-militancy and public protests, and arrest was deemed a foreclosure of political agency and opportunity.
Looking more closely at the operations of the military court system, and with the benefit of hindsight, it is possible to see early signs of resistance within this setting. One was the decision of politicized lawyers to take up military court work (see Chapter 6). Yet until the end of the 1970s, lawyers who aspired to challenge the military administration by engaging larger questions and debates about the legality of Israeli policies found few opportunities to do so through their legal practice. Part of the problem was the lack of any already formulated critique of official Israeli legal discourse. The first efforts to redress this lacuna were undertaken by a few military court lawyers.
The process of forging a legal critique of Israeli military rule began in 1979 with the creation of Law in the Service of Man (LSM, later renamed Al-Haq). LSM, the first Palestinian human rights organization, was established as a West Bank affiliate of the International Commission of Jurists (ICJ). By adopting an explicit rule of law mandate (in keeping with that of the ICJ), the lawyers who founded LSM eschewed nationalist militancy and promoted the organization as non-political and legal. Framing their criticisms of the occupation in terms of international law was a significant innovation; it represented the first organized effort to engage law as a form of resistance.
LSM's mandate was comprised of two main aims: “to act as a watchdog for the rights of the population, living under the rule of a foreign power…[and to] work towards ensuring that the society of which it is a part maintains and develops its own standards of human rights, equipping it for the future, as well as for the present.” The monitoring and reporting strategies pursued by LSM challenged the official Israeli narrative that the state was governing legally by documenting how (and how pervasively) the military administration failed to adhere to rule of law standards and to abide by relevant international laws. LSM produced two types of publications, one geared mainly to an international audience that presented legal rebuttals of Israeli positions based on international law, the other geared to a local constituency to inform them of their rights and offer ways of challenging specific actions of the military administration.
From the outset, LSM faced three major problems: being a Palestinian organization under Israeli occupation; seeking to address grievances in a context in which Palestinians “were generally held to be incapable of dispassionate investigation of anything concerning Israel”; and documenting violations by the Israeli state at a time when Israel had an international reputation as “not a serious offender” of human rights compared to other Middle Eastern regimes. LSM responded to this predicament by denying the relevance of politics to human rights and referring exclusively to international law in its appraisal of Israeli conduct. Such a position earned the organization credibility among international human rights organizations, although Israeli officials consistently tried to discredit its work by charging that that the organization was a front for the PLO, and some Palestinians disparaged LSM's avowedly non-political stance.
The people affiliated with LSM were pioneers in the development of a critical legal discourse on the Israeli military administration. In 1980, two of the organization's founders, Raja Shehadeh and Jonathan Kuttab, published The West Bank and the Rule of Law. This book, describing changes in the West Bank legal system since the onset of occupation, was the first effort to compile a comprehensive account of Israel's uses of emergency laws and military orders. It was, in part, a response to their own and their colleagues' needs as practicing lawyers to understand and evaluate the environment in which they were working (and living). The publication of this book was groundbreaking in that it served to translate the problems of the occupation into a human rights framework, and it set in motion what would come to characterize the production of knowledge about the legality of Israeli rule: a cycle of criticism and rejoinder.
A rejoinder to Shehadeh and Kuttab's book was published in 1981 under the title The Rule of Law in the Territories Administered by Israel. Although not an official publication, it was authored by Israeli government lawyers and quickly acquired the status as one of the most important public articulations of the government's position on the legal basis for its policies. In the “Forward,” Haim Cohen, a justice on the HCJ, describes Shehadeh and Kuttab's book as a tracatus politicus, contrasting it with the present text, which he refers to as “a sober statement of law and fact.” Cohen writes:
While the study of Messrs. Shehadeh and Kuttab can in no way be accepted as a correct statement either of the facts or the law, it is a welcome challenge to state both fact and law as they really are--not unlike a legal pleading whose ratio vivendi is to stand until authoritatively corrected.
In 1985, Shehadeh published a second book, Occupier's Law: Israel and the West Bank, which includes a rejoinder to The Rule of Law in the Territories Administered by Israel. In the “Introduction,” he writes:
Lawyers in the military administration of the West Bank… attempted to justify Israel's activities by referring to international law to prove the consistency of these actions with the law of occupation. It is clear, therefore, that Israel takes the position that its activities in the West Bank are governed by international law and are consistent with it…. This declared policy is irreconcilable with the facts which seem to indicate that the Israeli goal is gradually to drive out the local Palestinian population and to annex the territory. Israel has been astute in the way it has tried and still tries to present all it is doing in terms of the international law of occupation.
By the mid-1980s, a modest but mounting body of scholarship was formulating increasingly elaborate critiques of Israel's violations of international law in the occupied territories. As a result, issues that previously had been ignored or treated as political problems were coming to be couched in a legal language, and this helped foster the growth of a human rights movement through the establishment of new organizations.
The Gaza Center for Rights and Law, a Gaza affiliate of the ICJ, was established in 1981. It pursued strategies similar to those of LSM/Al-Haq, although with fewer resources and a smaller staff. The Palestine Human Rights Information Center (PHRIC), a branch of the Jerusalem-based Arab Studies Society, put more emphasis on political activism and networking with other local institutions and less on legal research and argumentation than LSM/Al-Haq.
On the other side of the Green Line, through the mid-1980s the main Israeli organization engaged in work relating to the rights of Palestinians was the Association for Civil Rights in Israel (ACRI). Modeled on the American Civil Liberties Union, ACRI's mandate pertains to civil and political rights. Its work in the territories concentrated on cases in which individuals' right to due process were being violated or compromised (especially administrative detention and forms of collective punishment). Although ACRI was critical of some of the Israeli state's practices, it did not pursue a role of criticizing the occupation, championing Palestinians' national/collective rights, or asserting a position independent of the state's official legal doctrine.
By the mid-1980s, the international human rights movement was becoming increasingly attentive to the situation in the West Bank and Gaza. This attention was spurred by escalating tensions in the region, including Israel's invasion of Lebanon in 1982, the expulsion of the PLO from Lebanon to Tunisia, and the massacre of hundreds of civilians in the Sabra and Shatila refugee camps outside Beirut.
In 1985, to crush growing resistance and capitalize on the weakness of the PLO, the military administration instituted harsher governing policies, referred to officially as the “Iron Fist.” This entailed more vigorous and violent efforts to prohibit political demonstrations in support of the PLO and solidarity with other Palestinian communities, as well as heightened restrictions (including closures) of Palestinian institutions. The Iron Fist also entailed an expanding use of administrative measures such as detention, deportation and house demolitions. In such an atmosphere, local human rights organizations were appealing to international human rights organizations for support to bring international pressure to bear on Israel.
One of the most difficult issues facing the international human rights movement in the 1970s and '80s, not only in Israel/Palestine but in other trouble spots around the world, was the profound disagreement over how international laws could or should apply in conflicts pitting non-state movements against states. These questions were further complicated by the fact that many such movements included militarized wings, and armed struggle was supported by large sectors of the populations. Such questions applied not only to the conflict in Israel/Palestine, but also to those raging in South Africa, Northern Ireland and elsewhere.
Amnesty International (AI), the most prominent international human rights organization at that time, pursued a narrow mandate focusing on political prisoners, fair trials, and an end to torture and executions. In charting its position on the relationship between human rights and conflicts, AI made the use or advocacy of violence the crucial point of distinction. In its work on Israel/Palestine, AI “refused to accept Israel's argument that membership in the [PLO] by itself constitutes the advocacy or use of violence and is therefore a punishable offense.” However, in comparison to its coverage of the situation in apartheid South Africa, AI was more cautious in its support for Palestinian prisoners and more circumspect in its criticisms of the Israeli state. Other human rights organizations with less constricted mandates forged their positions on Israel/Palestine in a more ad hoc manner.
International human rights organizations' criticisms of state agents, institutions and activities in turn elicited counter-criticisms that they were politically and/or ideologically biased, since they were not offering up comparable critiques of the activities of non-state organizations (e.g., the PLO, the African National Congress, the Irish Republican Army). In their defense, human rights organizations often pointed out that international law did not provide the kinds of evaluative measures for non-states as it did for states. At the heart of these debates were discrepant views over how to interpret the conflicts themselves, namely whether resistance activities against states constituted terrorism or legitimate struggles for self-determination. Such debates reflected, more generally, the stakes and opportunities during an era when international politics were dominated by Cold War rivalries. Human rights monitoring, reporting and advocacy about the situation in Israel/Palestine was affected by the enduring Arab-Israeli conflict, as well as Israel's “special relationship” to the US, and the strategic alignment between some “frontline” Arab states and the USSR.
The outbreak of the Palestinian intifada in December 1987 had dramatic effects on all aspects of Israeli-Palestinian relations. Extensive media coverage of the popular resistance and the military's responses made local events into international news, and increased international awareness and concern about Israel's policies in the West Bank and Gaza. International demands for information about what was happening in Israel/Palestine elevated the profile and expanded the role of local human rights organizations. Holly Burkhalter, the advocacy director of Human Rights Watch at that time, expressed particular praise for Al-Haq's work during the intifada:
There weren't at that time many groups in the [global] South that were doing such highly sophisticated human rights investigations. To have that kind of quality of documentation, especially from Palestinians, was very important in dispelling the prejudice that existed. In the United States, “Palestinian” was an adjective modifying the noun “terrorist.” Al-Haq's work was essential in getting out the truth not only about human rights violations in the occupied territories, but about Palestinians themselves.
The intifada focused unprecedented attention on the military court system because arrest and prosecution were key strategies used by the Israeli military to try to crush resistance and restore order. Every local human rights organization and many international organizations issued reports on some aspect(s) of the military court system. In keeping with the prior pattern of criticism and rejoinder, there was a concurrent outpouring of texts aiming to defend the system and refute the criticisms. Consequently, the modalities of Israeli military rule in the territories were subjected to greater scrutiny, analysis and explanation than ever before, and debates became much sharper.
A few examples can illustrate the polemical tone of this discourse. In 1991, AI published The Military Justice System in the Occupied Territories. In the summary, the report's purpose is explained as an effort to address the concerns and criticisms by local and international observers about the operation of the military courts.
The report describes the prolonged incommunicado detention of Palestinians after arrest, which facilitates arbitrary arrest as well as torture or ill-treatment. Confessions… are often the primary evidence against defendants… Improper pressures are exacted on defendants to plead guilty and enter into a plea bargain with the prosecutors. Many defendants do so because confessions cannot be effectively challenged in court, or because those who ask for a full trial risk spending more time in detention than they would if they plead guilty. They also risk much heavier sentences. Their fundamental right to a fair trial is prejudiced in these circumstances.
In the Israeli government's response to this AI report, the introduction begins by stating that the military court system is vital to Israeli efforts to combat Palestinian terrorist organizations committed to destroying Israel.
The [AI] Report, rather than making a systematic, statistical survey of legal practices in the administered areas, attempts to present a number of isolated examples as representative of the whole. Due to the high rate of intifada crime, the military justice system… has had to cope with a caseload of 19,435 trials during 1991 alone. The total of 11 isolated examples presented in the Report… cannot, in any way, be an indication of the functioning of the system as a whole….
In its allegations of torture and maltreatment, AI disregards the reality that individuals arrested, tried or convicted often have both personal and political motives for exaggerating or fabricating tales to justify their own actions or to embarrass the government… Simply put, for a terrorist who would firebomb a civilian bus or kidnap and torture an Arab on the rumor that he has contacts with Israeli authorities, lying to a delegate of a human rights organization comes easily….
A 1992 report by the Lawyers Committee for Human Rights, Lawyers and the Military Justice System, examined “the functioning of the system from the point of view of practicing lawyers” in light of international standards. The official Israeli response, authored by the MAG's office, criticized the report on the ground that key informants are “politically motivated” defense lawyers who are not reliable sources. The Lawyers Committee responded to the criticism in a follow-up report, A Continuing Cause for Concern:
In its Reply, the Israeli authorities [sic] state that our findings were based “mostly on conversations with politically motivated defense attorneys”. We find this statement to be an unfortunate expression of the authorities' contempt for the adversarial system… If the primary motivation of these lawyers was “political”, they would not subject themselves to the daily drudgery, privations and physical discomfort which life as a lawyer in the Territories entails. There are easier ways to make a political statement. This tendency to disregard the often legitimate concerns of lawyers as being “politically motivated”, and therefore not worthy of consideration, is an example of precisely the complacency in the face of manifest problems in the functioning of the justice system of which we accused some Israeli officials….
In 1993, the MAG's office published an edited book, Israel, the“intifada” and the Rule of Law, to provide a comprehensive official response to the deluge of criticism against Israel since the beginning of the intifada. Chapter 16, “Monitering [sic] of IDF Conduct in the Areas by Independent Human Rights Organizations and the Press,” provides a telling picture of the government's assessment of its critics. The two local human rights organizations most active in publishing reports critical of the military administration, Al-Haq and B'Tselem, are discussed:
[B'Tselem] is an Israeli formed organization established in February 1989, associated with Israeli politicians of the left, to monitor human rights in the Territories. “Al Haq, Law in the Service of Man” is a Ramallah based Palestinian Human Rights Organization. The latter group is considered by Israeli government officials to be distinctly hostile and unobjective in its operations and its positions. The former group's political connections, on the other hand, would tend to deny it the aura of objective neutrality enjoyed by, say, ACRI. B'Tselem's various reports… have met with sharp criticism by Israeli government officials, citing inaccuracy or lack of objectivity. Nonetheless, the reports published by both these groups have been studied by the Israeli government.
In 1994, former MAG Amnon Straschnov published a semi-autobiographical book titled Justice under Fire, which discusses the changing legal measures in the territories instituted under his authority, such as making stone throwing a felony offense and holding parents legally accountable for the resistance activities of their children. He offers a candid assessment of the tensions between the military-security and legal aspects of Israeli rule.
Unfortunately, the legal system in the territories was an “easy target” for continuing attacks by different sides. [The critics] were not without a predetermined and hostile attitude toward Israeli rule in the territories in general, and found the military courts something easy to be exploited and to use for political and ideological purposes in the area of civil rights…
It seems that criticism of the legal system in the territories was not only the concern of lawyers, international organizations, and organizations for defending civil rights. The criticism came more than once from the security system as well, addressing the legal system from the opposite angle [i.e., arguing that it was too easy on terrorists].
As these examples illustrate, the intifada-era literature not only reflected but reinforced the deeply contested nature of all issues relating to the military court system, from narrowly construed matters such as procedural rules, to the larger political problems associated with the conflict. But the most contentious issue of all has been interrogation.
In any criminal justice system, interrogation of suspects is a central aspect of law enforcement, since confessions are sought to confirm the validity of other evidence or to compensate for a lack of evidence. Interrogation is vitally important to understand the Israeli military court system because confessions represent the most common source of evidence (sometimes the only source) to charge and prosecute Palestinians.
The IDF and the police conduct some interrogations, but the main agency responsible for interrogation of Palestinians is the General Security Service (GSS, also known by its Hebrew acronym Shin Bet). GSS interrogations feed the legal process by procuring confessions that are then turned over to police and prosecutors.
A history of Israeli interrogation of Palestinians has never been written, and the conditions do not exist for such an undertaking because of the GSS's institutional insularity (it is accountable directly and exclusively to the office of the Israeli Prime Minister) and lack of transparency. But because of the heavy reliance on confessions, a partial account of this history can be deduced from the public record relating to the functioning of the military court system since 1967, and litigation to contest the use of torture.
In 1970, after armed resistance had been squelched by the “pacification” campaign, the capabilities of the military court system expanded, increasing the demand for forms of evidence that would hold up in court. Consequently, interrogation was increasingly aimed at producing confessions to be used for conviction. By 1970-71, the complete isolation--and thus effectiveness--of interrogation as a component of the legal process had been achieved. Some lawyers representing Palestinians began reporting claims by their clients of the use of measures such as beatings, electric shock, death threats, position abuse, cold showers, sexual abuse, and denied access to toilets. In 1970, the Israeli publication Zu HaDerech reported a new policy to discourage military courts from investigating the conduct of interrogators: “Noting the importance and vitality of [the GSS's] security responsibilities in this area, it is the duty of the court to avoid disturbing them in their tasks.”
Reports about Israeli interrogation methods that claimed the routine use of torture and ill-treatment were officially challenged as anti-Israel lies and smears, and refuted by arguing that such claims were based on pernicious fabrications by Palestinians and other “enemies of the state.” Since interrogation occurs in inaccessible sites and is conducted by secret agents, the only sources of information are people who have been interrogated. But because of this need to rely on Palestinians for information about Israeli interrogation, and the impossibility of independently confirming allegations of torture, many international observers were skeptical or reluctant to label Israel a torturing state. For example, AI did not use the word “torture” in reports on Israel until 1990. Certainly another factor was the zeal with which claims of torture were challenged by officials and supporters of the state.
Both the discourse and practices of interrogation underwent a qualitative change following the 1977 publication of a detailed inquiry by The Sunday Times(London) into “Arab allegations and official Israeli denials of the use of torture.” The Times reported, “Torture of Arab prisoners is so widespread and systematic that it cannot be dismissed as 'rogue cops' exceeding orders. It appears to be sanctioned as deliberate policy.”
Some of the ill-treatment is merely primitive: prolonged beatings, for example. But more refined techniques are also used, including electric-shock torture and confinement in specially-constructed cells. This sort of apparatus, allied to the degree of organisation evident in its application, removes Israel's practice from the lesser realms of brutality and places it firmly in the category of torture.
The Israeli government, through its embassy in London, ridiculed the findings and conclusions of the article as “fantastic horror stories” in a published response. But Prime Minister Menachem Begin ordered a curtailment of violent interrogation tactics in Israeli prisons and detention centers. As a result, for the next several years, allegations of torture declined. However, by the end of the 1970s, local and regional events (including intensified Jewish settlement activity and the signing of an Egyptian-Israeli peace treaty) led to an escalation of Palestinian protests and resistance, which in turn led to an escalating number of arrests and interrogations. By the early 1980s, the hiatus on torture had ended.
The most significant affirmation that violent interrogation tactics were standard practice was provided, ironically enough, by an official Israeli source. In 1987, a government-appointed commission of inquiry, headed by Moshe Landau, a retired justice of the HCJ, issued a groundbreaking report on the activities of the GSS. The events that precipitated the establishment of the Landau Commission were not related directly to the interrogation of Palestinians. Rather, two scandals implicating GSS agents had come to the Israeli public's attention, one involving torture of a Circassian Israeli officer in the army (who had been convicted of treason), and the other involving the murder of two Palestinians already in custody (who had hijacked a bus) and a subsequent cover-up. The Landau Commission's mandate was to bring to light any illegal actions perpetrated by the GSS and, in doing so, begin the process of restoring public (Jewish Israeli) confidence in the security establishment, which had been damaged by the scandals.
The Landau Commission report confirmed what had long been alleged by Palestinian detainees, their Palestinian and Israeli lawyers, and local human rights organizations: that GSS agents had used violent interrogation methods routinely on Palestinian detainees since at least 1971, and that they had routinely lied about such practices when confessions were challenged in court on the grounds that they had been coerced. While the Landau Commission was harsh in its criticism of GSS perjury, it adopted the GSS's own position that coercive interrogation tactics are necessary in the struggle against “hostile terrorist activity.” The Landau Commission accepted the broad definition of terrorism utilized by the GSS, which encompasses not only acts or threats of violence, but virtually all activities related to Palestinian nationalism. The Landau Commission described GSS interrogators as “ideological criminals” who had erred while doing their “national duty.” According to the report:
The investigation staff of the GSS is characterized by professionalism, devotion to duty, readiness to undergo exhausting working conditions at all hours of the day and night and to confront physical danger, but above all by high inner motivation to serve the nation and the State in secret activity, with “duty being its own reward”, without the public glory which comes with publicity. It is all the more painful and tragic that a group of persons like this failed severely in its behavior as individuals and as a group. In saying this we are not referring to the methods of interrogation they employed--which are largely to be defended, both morally and legally…--but to the method of giving false testimony in court, a method which now has been exposed for all to see and which deserves utter condemnation.
The most contentious aspect of the report was not what it revealed about the past, but its conclusions and recommendations. The report's authors argued that national security imperatives require coercion (physical and psychological) in the interrogation of Palestinians, and that the state should sanction such tactics in order to eliminate GSS agents' need to resort to perjury. The Landau Commission's justification for this recommendation is based on a three-part contention: that Palestinians have no right to legal protections given their predisposition toward terrorism, that the GSS operates morally and responsibly in discharging its duties to preserve national security, and that GSS interrogation methods do not constitute “torture.”
The Landau Commission argued that Israeli penal law could be interpreted to give interrogators license to use “moderate amounts of physical pressure” (as well as various forms of psychological pressure) as part of the fight against terrorism. According to this argument, the “necessity defense” permits people to use violence in “self-defense,” thereby mitigating criminal liability on the grounds that they are acting to prevent grievous harm. However, in applying this argument to interrogation, the “self” is the Jewish nation, and “defense” is exercised by state agents acting in an official capacity against people already in custody. This is a striking contravention of international law, in which the prohibition against torture is universal and customary (i.e., applicable to all people everywhere) and non-derogable under any circumstances (including the “ticking bomb” scenario that the Landau Commission utilized as part of its justification for “pressure”).
The Israeli government adopted the Landau Commission's recommendation to authorize the use of “moderate physical pressure,” making Israel the first state in the world to officially sanction interrogation methods that constitute torture according to international law. In doing so, Israel challenged the core principle underlying the international legal prohibition against torture: that the individual's right not to be tortured takes precedence over any possible state right or interest.
The coincidental timing of the Landau Commission report's publication (October 30, 1987), its endorsement by the Israeli cabinet (November 8) and the outbreak of the first intifada (December 9) bore directly on the handling of security suspects at a time when the number of people being arrested was skyrocketing. Thus, it could be said that the Landau Commission report decisively transformed official discourse of Israeli interrogation while preserving the practices. Whereas prior to Landau, the Israeli government had denied torture categorically, afterwards it adopted the position that permissible “moderate physical pressure” does not constitute “torture.”
The Landau Commission report provoked a firestorm of protest by local and international human rights organizations, as well as some prominent members of the Israeli legal community. At minimum, critics observed, giving interrogators a license to use “pressure” denies Palestinian detainees even a pro forma presumption of innocence. But the Report did serve a positive-if unintended-function by providing a now-public focus for efforts to criticize--with the aim of ending--coercive and illegal interrogation practices. In 1990, a group of Israeli lawyers and human rights activists formed the Public Committee against Torture in Israel (PCATI) to spearhead this campaign.
The specific interrogation methods that the Landau Commission recommended and the state accepted were contained in a classified appendix to the report. In 1991, PCATI petitioned the HCJ to void the Landau Commission report and publicize the secret interrogation guidelines. The Court rejected the petition, stating that the guidelines have the status of an “internal directive” and therefore are not subject to judicial intervention. Although the justices handling the petition were privy to the guidelines, they did not render an opinion regarding their legality vis-à-vis Israeli or international laws. But the contents of the secret guidelines could be deduced through investigations by human rights organizations, and through petitions brought before the HCJ which forced the state to admit or acknowledge that permissible methods included the routine use of threats and insults, sleep deprivation, hooding and blindfolding, position abuse, physical violence (including “shaking” which produces a whiplash effect and leaves no physical marks ), solitary confinement (including in refrigerated or overheated closet-like cells), and subjection to excessively filthy conditions.
The policy of permitting “moderate physical pressure” became more legally problematic in 1991 when the Knesset ratified the UN Convention against Torture and Other Cruel, Degrading or Inhuman Punishment. However, the government exempted itself from adhering to this Convention in its conduct vis-à-vis Palestinian residents of the West Bank and Gaza on the grounds that the political status of these areas remains to be determined, a line of legal reasoning that draws on the Israeli distinction between “administration” and “occupation.”
In September 1991, for the first time in Israeli history, two GSS interrogators were sentenced to prison (for six months) on charges connected with their work; they had been found guilty of causing the death of Khalid Sheikh 'Ali, a Palestinian from Gaza, who had died of internal bleeding as a result of being kicked in the stomach. After their appeal hearing in the HCJ, which upheld the conviction, Justice Aharon Barak said, “The interrogators acted, indeed, for the sake of state security… but acted unlawfully.” But since 1994 (significantly, the year ushering in the Oslo Accords), “not a single GSS interrogator has been tried in a criminal court, not even when detainees left interrogation wings with permanent physical or mental disabilities, and not even when a GSS agent tortured a Palestinian detainee ('Abd a-Samad Harizat) to death with his own hands.”
In 1993, in response to litigation challenging the legality of the Landau guidelines, the Israeli government reported that the GSS had modified its interrogation procedures. The “new procedures” were the product of deliberations of a ministerial committee and disseminated to interrogators in a classified booklet titled The Procedure for Extraordinary Authorizations during Interrogation. Ostensibly, the new procedures set out a tighter framework for use of “exceptional means,” to be used in stages, under supervision of members of particular echelons of the GSS, and in consideration of the detainee's health. However, in a follow-up investigation to assess the ramifications of these new procedures, B'Tselem found that the only notable change was the elimination of forced physical exercise.
In 1994, PCATI brought a petition that called again on the HCJ to order the state to publish the new secret guidelines, and challenged the GSS's existence as “extra-legal.” The petition charged that the GSS operates a shadow regime unregulated by law, and it usurps jurisdiction from institutions with public authority and accountability (i.e., the IDF, police and prison services), which function as subcontractors, providing services and facilities over which they have relinquished control. According to Avigdor Feldman, the Israeli lawyer representing PCATI in this petition,
[T]he GSS maintains parasitical relations with the competent authorities… The GSS is located in the internal organs of the competent body, hidden away from all public and judiciary criticism. From its hiding place it operates the authority, sucking from it both power and its invasive means, while preventing these authorities from exercising any independent opinion.
The PCATI petition also asserted that GSS interrogation methods are “aberrant” and illegal because the prohibition against torture is universal, customary and absolute. Part of the legal grounding for the petition was a new Israeli Basic Law: Human Dignity and Liberty (1994). According to the petition, “[T]he fact that the government authorizes the [GSS] interrogators to harm the bodies and dignity of persons is a constitutional disgrace which undermines the integrity of the legal system and challenges its right to exist.” The HCJ issued an order nisi impelling the state to respond, but left the case pending.
In the meantime, Israeli lawyers continued to submit hundreds of petitions on behalf of individual Palestinian clients in interrogation. The HCJ was not entirely immune to granting relief in certain cases. For example, in a 1996 decision (Mubarak et al v. GSS), the HCJ ruled that “painful handcuffing” is prohibited (although it refused to prohibit other practices raised in the petition). But its general pattern of decisions and delays served to preserve the secrecy of GSS interrogation practices and, in effect, to support the state's refusal to adhere to international law in its treatment of Palestinian detainees. Thus, the HCJ effectively added its stamp to the “legalization” of torture in Israel/Palestine, rationalizing that any harm perpetrated by interrogators is lesser or even is mitigated by the possible harm that detainees pose to national security and the safety of civilians who might be victims of terrorism. In 1998, Eitan Felner of B'Tselem wrote:
In Israel, torture is institutionalized, with its own routine and systematic bureaucracy. Torture is governed by detailed regulations and written procedures. A whole contingent of public officials participate in the practice of torture: in addition to the GSS interrogators who directly perpetrate torture, doctors determine whether a detainee is medically fit to withstand the torture, a ministerial committee headed by the Prime Minister oversees the procedures, state attorneys defend the practices in courts and finally the High Court of Justice has effectively legalized torture by approving its use in individual cases without ruling on its legality in principle.
Despite the negative international publicity surrounding Israeli interrogation tactics, a majority of the Jewish public, and even some leading Israeli legal liberals refused to condemn the use of torture or to accept that the international prohibition applies to Palestinians. For example, Ruth Gavison, a law professor at Hebrew University, was president of ACRI when she was quoted as saying, “I don't know of any state which confronts terror attacks of the sort we deal with here, and which doesn't strike against the body or welfare of detained persons suspected of being connected to terrorist activity.” Such attitudes served to marginalize and even demonize human rights lawyers and activists as “sympathizers” or “defenders of terrorism” for their efforts to expose and prohibit torture.
In January 1998, the HCJ combined a number of petitions pertaining to interrogation, and convened an unprecedented panel of nine justices to consider the matter. While the case dragged on, the HCJ issued a statement calling on the Knesset to take responsibility by promulgating legislation, rather than leaving it up to the Court to decide about the legality of specific methods. Finally, in September 1999, the HCJ rendered a decision prohibiting GSS agents from routinely using physical “pressure,” although the decision neither called these tactics “torture,” nor completely closed the window of opportunity for their continued use under exceptional circumstances. After the ruling, some methods all but disappeared (e.g., violent shaking, covering a detainee's head with a thick cloth sack, exposure to extremely loud and constant music, and tying to small tilted chairs). But other methods, including sleep deprivation, position abuse and painful shackling, exposure to extremes in temperature, and intense pressure applied to various body parts remain common practice.
In Part II, I return to the issue of interrogation because of its importance to the functioning of the military court system. Interrogation, as I will explain, influences and affects the perspectives of the various categories of participants about the legality and legitimacy of the military court system.