Would we know if Palestinians were being tortured by the Shin Bet?

The High Court of Justice has declared torture of detainees – whether they are sympathetic or not – to be illegal since 1999, even for terrorists.

Actors demonstrate the Israeli Shin Bet torture method known as "Banana b'kiseh" (photo credit: DAVID SILVERMAN / REUTERS)
Actors demonstrate the Israeli Shin Bet torture method known as "Banana b'kiseh"
A convergence of two cases, one only now being fully revealed, is drawing into question whether new oversight mechanisms over the Shin Bet (Israel Security Agency) are failing.
The known case concerns a Palestinian who was almost killed during a Shin Bet interrogation on September 28. He is not a sympathetic figure.
Samer Arbid was being interrogated by the Shin Bet for his suspected involvement in the murder of Rina Shnerb in August, as well as other potential terror attacks he was allegedly planning.
Sympathetic or not, the High Court of Justice has declared torture of detainees illegal since 1999 – even for terrorists.
The Justice Ministry’s oversight czar, who is reviewing the case, has not even produced preliminary findings after 10 weeks, which may be a symptom of a larger problem.
Most people would consider hospitalization and almost dying to be the results of an interrogation that went too far: torture.
This is an important fact to state since the same 1999 High Court opinion prohibiting torture, in the same breath, permits the Shin Bet to use “moderate physical pressure” to stop a potential “ticking bomb” terror attack.
While there is no official government guide to what does and does not cross the High Court’s line, a careful study of some rare, publicly available information as well as some confidential information obtained by The Jerusalem Post would say that the following are probably viewed as legal:
 – Sleep deprivation for an unspecified amount of time, if performed under the guise of non-stop interrogation, strategically interrupted with extended “breaks”
– Tying detainees to the sides of their chairs in a manner that might be uncomfortable, but not acutely painful
– Threats to arrest family members of detainees who may be under criminal suspicion
– Exposure to an uncomfortable, but not painful environment whether related to noise, temperature or hygiene
– Low-grade roughing-up of detainees in “response” to detainee outbursts
Of course, Arbid's could be an outlier case which does not depict what usually happens.
The problem is that there are other cases where delays by the ministry’s oversight unit in probing, let alone criminally investigating, complaints of torture by detainees against their Shin Bet interrogators, seem to exhibit a strong indifference to finding out what actually happened.
BESIDES ARBIB, regarding who the oversight unit promised a quick release of details on September 29, there is Ahmed Musa.
Musa, whose case is only now being fully reported, is also not a sympathetic figure, having been involved in a horrific 2012 Tel Aviv bus bombing.
Yet the primary questions being asked are not how guilty the detainee is, but whether the torture prohibition was violated and whether oversight officials are serious about looking into the issue.
Musa was interrogated in 2012 and complained that his interrogators had tortured him. The justification for the delay until 2015 is that there was a parallel prosecution against him.
One can debate how airtight a justification that is, but putting that aside, what is interesting is, what happened after Musa was convicted in 2015?
For around four years.
Until three weeks ago on November 24, when the Public Committee Against Torture in Israel (PCATI) revealed to the Post that the state had finally reached a decision and closed the case, under the pressure of a High Court petition.
Having sat on the case for three years, the state did not try in 2015 to rectify the situation by quickly finishing its probe and issuing a decision later that year or in 2016.
Rather, it sat on the case for several additional years as if it was a brand-new case that had just come in – and even by that standard, the state moved slowly with the case.
How can a more than six-year delay send a message that oversight is serious?
ANOTHER CASE involves a Palestinian known as “N” (to protect his identity) who filed a complaint against the Shin Bet interrogators alleging torture, on December 29, 2014.
The complaint says that N lost consciousness three times from being beaten, including on intimate parts of his body.
Usually, the investigator or the courts decide that the worst allegations of torture are exaggerations. They usually also conclude that whatever moderate physical pressure did take place was justified to save civilian lives from future terror attacks.
Maybe that is true in the case of N as well, and maybe not.
But right now, no one knows because, almost five years later, the oversight unit has not decided.
In fact, out of over 1,200 complaints filed against the Shin Bet by Palestinians represented by the PCATI since 2001, the oversight unit has only approved one criminal investigation.
That criminal investigation is reviewing whether the Shin Bet committed crimes in its intimately invasive search of a Palestinian woman in 2015 (without sufficient probable cause), with the criminal probe having opened in 2017.
It seems that the reason a criminal probe was unavoidable in that case was that testimony taken from IDF officials involved differed from that of the Shin Bet officials involved about what was done and why.
In other words, where only Shin Bet officials are involved, there has still not been a single criminal probe since 2001.
By the way, regarding the Palestinian woman, there is still no decision about whether to indict or close the case – four years later.
This is remarkable since by May, essentially all of the evidence for the case had reportedly been collected.
If someone might think these are just the four worst cases of delayed enforcement and decision-making, PCATI would respond that the average time it takes the oversight unit to dispose of cases is a staggering 39 months.
PCATI says that it has 37 files waiting for decisions, including 10 from 2014, eight from 2015 and four from 2016.
PART OF what is disturbing about these statistics is that they come from what was supposed to be a new and improved era of oversight.
In 2014, the government – with significant fanfare about its new and greater independence – moved the oversight unit out of the Shin Bet and into the Justice Ministry. There was a new non-Shin Bet head, former IDF chief prosecutor Col. (res.) Jana Modgavrishvili.
She was complimented on a personal level by PCATI for having good intentions to try to wrap cases up more efficiently. However, government officials have since acknowledged to the Post that heavy delays continued, at least partially due to the unit being underfunded. A scarcity of investigators translates into wrapping up cases more slowly.
Since Modgavrishvili herself publicly discussed this difficulty before the UN Human Rights Committee already a few years ago, the state’s failure to provide more resources now looks like more of a conscious decision than an oversight.
There is another major sign of the state not taking enforcement seriously.
From September 2018 until August 26, 2019, the oversight unit had no director. Only after a full year did Guy Asher, who previously worked in the Shin Bet, replace Modgavrishvili.
Former Hebrew University Law School dean Yuval Shany said at a recent Israel Democracy Institute conference (he is also a fellow of the institute) that part of the issue may be the High Court itself lessening its objections to more aggressive interrogations.
In multiple decisions in recent years, Shany said that the High Court has moved the goal posts for when moderate physical pressure is allowed.
He said it has changed from being allowed to use such pressure to stop an imminent ticking bomb terror attack to allowing it even to seize equipment of terrorists, regardless of whether the equipment is likely to be used imminently.
Shany also criticized the lack of availability of video evidence of interrogations.
In recent years, the Shin Bet did take a major step by allowing the Justice Ministry's oversight unit to make unannounced spot inspections of interrogations using a remote live feed video. But the live feed does not record.
Shany said that without a recording it becomes nearly impossible to prove torture as it is just the word of Shin Bet agents against suspected Palestinian terrorists.
None of this means that the agency is regularly torturing Palestinian detainees. Even PCATI has acknowledged that whatever is done in interrogations today is usually far less aggressive than the pre-1999 era.
However, the real question is whether the trumpeted reforms meant to strengthen oversight have failed, such that if there were  incidents of torture, it would be impossible to know.