Harsh interrogations

One can only wonder what the court would have ruled had the defendants been Palestinian.

June 21, 2018 20:53
3 minute read.
Duma attack

the Dawabsha house which was set on fire in a suspected attack by Jewish extremists in Duma.. (photo credit: AMMAR AWAD / REUTERS)


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On Tuesday, the Lod District Court accepted some confessions made by a defendant in the Duma firebombing case, but disqualified others, including those from a second defendant who is a minor.

In July 2015, an attack on the house of the Dawabshe family in the West Bank town of Duma killed 18-month old Ali Dawabshe and his parents Saed and Riham. The attack became a rallying cry in Israel and abroad, and has now taken on larger significance after the Lod District Court this week revealed that during the investigation of the case, the defendants were subjected to “enhanced interrogation” by the Shin Bet (Israel Security Agency).

The adult defendant did not speak for 17 days under normal interrogation. The prosecution has asserted that enhanced interrogation was only used on the defendant because the Shin Bet thought he was part of a terror cell that might carry out further attacks, a case of the “ticking bomb” under which Israeli law allows harsher interrogation methods.

The court disqualified confessions made by the adult defendant during the first 36 hours he was subjected to the “enhanced interrogation” but accepted evidence he gave after that period.

The more controversial part of the case relates to the interrogation of the minor suspect. No video was provided of his confessions and the court threw out those that were given during the period of harsh interrogation methods.

One can only wonder what the court would have ruled had the defendants been Palestinian.

Therefore, two major issues were raised by this case. First is the lack of transparency regarding how the state uses harsh interrogation methods. Even before special methods are used, suspects are interrogated without lawyers for days and even weeks. This includes interrogation of minors.

The second issue raised is the difference between how Jewish terror suspects are normally treated and what seems to be standard treatment for Palestinian terror suspects who seem to be subjected to these methods with less scrutiny and court oversight.

Israel is thought to have used torture prior to 1987 when the use of harsh interrogation was given official approval. However, Israel’s Supreme Court, sitting as the High Court of Justice, banned most forms of torture in 1999. At the time, Human Rights Watch noted that Israel is a party to the international Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

In 2017 the Supreme Court acknowledged that a suspect named Assad Abu Ghosh had been subjected to “pressure techniques” in 2007 but said it was acceptable since the authorities were searching for a bomb-making lab. This is the background of the current law and practice, that the methods can be used in case of “ticking bombs” – where authorities suspect that those being interrogated know about or are planning to carry out an impending attack.

Israel faces unique threats that need to allow flexibility in using different interrogation techniques. Like the US after 9/11 or the UK during the “Troubles” in Northern Ireland, Israel has used harsh interrogation.

The UK, for instance, was found to have used “inhuman and degrading” treatment of suspects – but not “torture” – by the European Court of Human Rights in March 2018, affirming an earlier finding.

On this issue, words matter. The authorities’ use of terms like “enhanced interrogation” as opposed to “torture” is meant to be in line with international law. However, the larger question is whether they are in line with the values that Israel wants to project and the nature of a democratic state in the 21st century.

Is there evidence that interrogating suspects for weeks without a lawyer and using various undisclosed methods of “enhanced interrogation” gets better confessions than other methods? What the court ruled this week is that when suspects – Jewish or Palestinian – are convicted after such treatment, their confessions and subsequent conviction are tainted, allowing their supporters to claim that they confessed simply because they were under duress. This does not send the message that the state wants to send – that the murder of the family in Duma is unequivocally wrong. Instead the message is clouded.

The court ruling is an opportunity for the Shin Bet and the Attorney General to revisit the use of enhanced interrogation. In some cases, it will still be needed – but clearer lines need to be drawn for which ones, when and how.

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