The report begins with the presentation of a few positive aspects. The Committee acknowledged its great satisfaction with Israel's ratification of the two Optional Protocols to the Convention on the Rights of a Child[1] and the enactment of the Israel Security Agency Law.
The Committee cited germane decisions issued by the Israeli Supreme Court, including the decision in Yisscharof,[2] which calls for excluding evidence obtained unlawfully, or in violation of a defendant’s right to fair procedure. It also expressed its appreciation of the fact that in its training sessions, Israeli security authorities are taught that the prohibition of torture is absolute.[3]
The Committee also noted Israel's claim that the Convention does not apply to the West Bank or to the Gaza Strip, regardless of the changes in the latter region, such as the completion of the Withdrawal Plan in September 2005, which took place after Israel's last appearance before the Committee in 2005. However, the Committee upheld that Israel's obligations to prevent acts of torture or ill-treatment in any territory under its jurisdiction must be interpreted and applied to protect any person, citizen or non-citizen, without discrimination, who is subject to the de jure or the de facto control of a state party.[4] According to the Committee, Israel maintains control and jurisdiction in many aspects in the occupied Palestinian territories (hereinafter: "OPT"). Therefore, the Committee considers that the convention is applicable in the OPT.[5]
The Committee expressed concern regarding the definition of torture in Israeli legislation, which does not incorporate the crime of torture as defined in Article 1 of the Convention. Moreover, with regard to " necessity defense" that exists under Israeli law in cases of "ticking bombs" according to the Torture Case (and implicitly Article 18 of the Israel Security Agency Law),[6] the Committee stated its dissatisfaction, recommending the revocation of necessity as a possible justification for torture, and requesting that Israel provide the Committee with detailed information about the number of “ticking bomb” Palestinian detainees interrogated since 2002.
The Committee also stated that it was concerned by the government's power to delay meetings between detainees and their lawyers under Israeli law,[7] and by the lack of sufficient alternative safeguards against abuse available to security detainees. The Committee cited the Criminal Procedure Law of 2006, which permits the detention of persons suspected of security offenses for up to 96 hours before being brought before a judge[8] and up to 21 days without access to a lawyer,[9] as an example of problematic legislation, and recommended that Israel amend its legislation so as to ensure that all detainees are brought before a judge and have access to a lawyer without delay.
While the Committee indicated appreciation for the Criminal Procedure (Interrogating Suspects) Law of 2002, which requires that all stages of a suspect’s interrogation be recorded by video camera, it voiced its concern about the 2008 amendment to the Law that exempts the interrogation of detainees accused of security offenses from this requirement until 2010.
The Committee paid considerable attention to two issues: administrative detention and solitary confinement. According to the Committee, administrative detention does not conform with Article 16 of the Convention, which obligates a State member to prevent acts of cruel, inhuman or degrading treatment or punishment that do not amount to torture. The use of prolonged periods of detention, the inability to challenge the evidence on which detention is based, and the fact that detainees may be held incommunicado are all problematic forms of treatment. According to Israel's report, 530 Palestinians are being held in administrative detention under Israeli security legislation.[10]
The Committee referred particularly to the Unlawful Combatants Law of 2002 and to the amendment to it in 2008, which allows the State to detain non-Israel citizens who are unlawful combatants according to that law[11] for up to 14 days without judicial review; to extend their detention indefinitely; and to withhold confidential evidence from the detainee or his lawyer for examination. According to Israel's report, at the time of the hearing, there were 14 persons incarcerated under the Unlawful Combatants Law.
The Committee also expressed concern about the report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism with regard to the use of solitary confinement as a means of extracting confessions from minors.[12] According to the report, security detainees were allegedly kept in interrogation facilities ranging from three to six square meters, without windows or access to daylight or fresh air.
The increasing number of allegations of torture and ill-treatment by Israeli security officials was also cited as a source of great concern by the Committee. Such practices, which are inconsistent with the Convention and the ruling of the Israeli Supreme Court in the Torture Case, are alleged to have taken place before, during and after interrogation. Although 67 investigations were opened by the Inspector of Complaints against Israel Security Agency (ISA) interrogations in 2006 and 47 in 2007, none of them resulted in criminal charges.[13] In this regard, the Committee reiterated that there are no exceptional circumstances whatsoever that justify torture.
The Committee also stated its concern about the fact that out of 600 complaints of ill-treatment by ISA interrogators that were submitted to the Inspector of Complaints between 2001 and 2008, none of them resulted in a criminal investigation. Moreover, out of 550 investigations of torture allegations initiated by the ISA inspector between 2002 and 2007, only four resulted in disciplinary measures and none in prosecution. The Committee recommended that all allegations of torture and ill-treatment against the ISA be investigated by an independent mechanism and not by the ISA itself.
The principle of non-refoulement[14] that concerns the protection of refugees from being returned to places where their lives or freedoms could be threatened was recognized by the Israeli Supreme Court as a binding principle.[15] However, Article 1 of the draft amendment to the 1954 Infiltration to Israel Law (Jurisdiction and Felonies) Act prescribes that any person who has entered Israel illegally is automatically presumed to constitute a risk to Israel’s security and falls within the category of “infiltrator.”
The Committee was particularly concerned about Article 11 of this draft law that authorizes IDF officers to order the return of an “infiltrator” to the country or area of origin within 72 hours, without exception and without recourse to legal proceedings or safeguards, especially to the principle of non-refoulement, which is in violation Israel's obligations under the Convention.
With regard to secret detention and interrogation facilities,[16] the Committee stressed that Israel should ensure that no one is detained in any secret detention facility in the future, since the existence of secret detention centers per se is a breach of the Convention.
While respecting Israel's position concerning the use of force in self-defense – e.g., "Operation Cast Lead" – ¬ the Committee expressed concern over the insufficient measures taken by Israel to protect the civilian population of the Gaza Strip and to prevent the harm that resulted from the Israeli military operation. The Committee also referred to Israel's use of weapons containing phosphorus, declaring that the use of such weapons in densely populated areas caused suffering and, therefore, should be investigated by an independent body whose findings should be published.
With regard to house demolitions, the Committee acknowledged Israel's right to demolish any structure that it considers a legitimate military target. However, the Committee expressed its disappointment with the Israeli authorities' decision to resume the use of this method in East Jerusalem and in the Gaza Strip for purely punitive reasons despite its decision of 2005 to discontinue this practice.[17] The Committee, therefore, recommended that Israel desist from enforcing its house demolition policy in as much as it violates Article 16 of the Convention (which calls for all member states to prevent acts of cruel, inhuman or degrading treatment or punishment that does not amount to torture, as mentioned above).
In a very unique and unorthodox paragraph, the Committee referred directly to non-member organizations – the Palestinian Authority, Fatah and Hamas. The Committee addressed reports that these organizations carried out arbitrary arrests, abductions and unlawful detentions of political opponents, denied them access to a lawyer, and subjected detainees to acts of torture and ill-treatment. Moreover, the Committee noted an increase in incidents such as deliberate maiming, as well as extrajudicial killings by the Hamas forces in the Gaza Strip of Fatah security service officials and of persons suspected of collaboration with Israeli forces, both during and after "Operation Cast Lead." The Committee recommended that the Palestinian authorities in the West Bank and the Hamas authorities in the Gaza Strip take measures to punish those responsible for such actions, and called for the creation of an independent, impartial and non-partisan commission of experts to investigate these abuses.[18]