Palestinian who almost died in interrogation ‘not necessarily tortured’

State Attorney Shai Nitzan was asked about under staffing and insufficient funds provided to the Justice Ministry’s special unit, for probing complaints of alleged torture of detainees.

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"
The Palestinian who was hospitalized and almost died in September after being interrogated by the Shin Bet was not necessarily tortured, outgoing State Attorney Shai Nitzan told The Jerusalem Post in an exclusive interview.
Speaking to the Post earlier this week about Palestinian Samer Arbid, who has been indicted for murder and terrorism, Nitzan rejected allegations that the state prosecution was dragging its feet in deciding whether to move from a preliminary review of his treatment by Israel’s security agency to a full criminal investigation.
Nitzan said most of the delay was because the Shin Bet “probe of the terror threats needed to take priority. We needed to know if there were other operations being planned. We needed to do everything to stop these other operations.”
Arbid was indicted last week as the leader of a large terrorist cell, which was responsible for the murder of Rina Shnerb on August 23 and a variety of other terrorist activities.
Once the probe of Arbid’s terror activities concluded, Nitzan said, “the next question then becomes during his [Arbid’s] interrogation, were crimes committed, noting, ‘I made the decision to carry out a preliminary review [of Shin Bet conduct] because I thought we needed to find out what occurred here, and I am sure that now we will leave no stone unturned’ to get to the truth.”
Pressed that Arbid’s case was black and white, and an obvious case of torture because he was almost killed and ended up in the hospital, Nitzan responded, “It is not clear what led him to need to be hospitalized. It is unclear... I am not saying necessarily for this case, but maybe a man, while he is in detention, can get a heart attack – is it clear that it was because of torture or applying pressure? It’s not at all clear…”
Nitzan spoke for argument’s sake, but not to confirm or deny what happened in either direction. Rather, he was exploring the idea. “It is not simple [to assume] that they beat him... And that because of that, he ended up in the hospital… We do not know that what they did was what caused him to be sent to the hospital. Definitely not – definitely not.”
Next, Nitzan was asked about understaffing and insufficient funds provided to the Justice Ministry’s special unit for probing complaints of alleged torture of detainees against Shin Bet agents, such as the case relating to Arbid.
In the past, the unit’s director from 2014 to August of 2018, Jana Modgavrishvili, had told the Post that her unit lacked sufficient staff and funding to review cases at a sufficient pace. This might explain the delay in Arbid’s and other cases, beyond the need to probe terrorism or allegations of foot-dragging. The unit has not disputed statistics from the Public Committee Against Torture in Israel, that its average decision rate is an astounding 39 months per case.
As state attorney, Nitzan was at the top of the chain of command in supervising the unit. However, when asked why he did not provide more staff and funding, he said he was only in charge of professional decisions, and that budgetary issues were in the hands of the justice minister. Nitzan added regarding the unit: “I definitely think it would be good to strengthen and grow [it].” He said, “They did not succeed at handling the cases fast enough, and this is too bad... but with the new director, I hope they will succeed in handling cases faster.” At the same time, he said that the creation of the new unit was a success, since “the level of professionalism, independence and objectivity went up.”
Former justice minister Ayelet Shaked, who had authority over the issue from 2015 until mid-2019, responded to questions about the issue, saying, “There were other priorities. They were able to make do with the resources they had.”
Besides treatment of Palestinian detainees, Nitzan also discussed attempts to reform Israel’s approach to administrative detention with the Palestinians. Administrative detention is when Israel holds detainees without a regular criminal proceeding, and with classified intelligence evidence regarding the dangers posed by the detainees that can only be reviewed by judges on a special panel to evaluate the detention.
Though Israeli officials maintain that administrative detention is necessary to block terror attacks from Palestinians, and occasionally from Jews who cannot be indicted, because presenting the evidence in a regular criminal trial would endanger informants or expose intelligence sources. Nonethless, some top officials have entertained the idea of reforming aspects of administrative detention. The reforms are supported by IDF West Bank Courts chief justice Col. Netanel Benishu, former deputy chief justice of the Supreme Court Elyakim Rubinstein and former IDF chief prosecutor Col. Liron Libman.
Regarding their idea of reforming administrative detention by adding a general defense counsel who could see all top-secret intelligence evidence being used against a defendant, Nitzan was against the idea. “It’s complicated,” he said. “A defense lawyer needs to be dedicated to his client’s interest first and foremost. If a defense lawyer views evidence… he needs to tell his client so that the client can tell him whether it is true or not,” stated Nitzan. He said, “This would be a defense lawyer who views the evidence, but can’t tell his client – this is a very problematic thing. We do not have anything resembling this in our [Israel’s] system… We weighed it a few times in the past, but we reached the conclusion that it would create a problem in the attorney-client relationship.”
When pressed with the idea that if the Palestinians want such a reform in spite of its drawbacks, then Israel should consider giving them what they want, he said: “It is still a problem, because maybe they don’t understand all of it. It’s a problem. Because they cannot rely on their own defense lawyer.” In addition, Nitzan said, “If the defense lawyer does not tell his client about it anyway, then what is the difference between him and the judge? The judge sees everything and is objective and can ask and does ask questions. There is no difference… I don’t see a big benefit as compared to the judge… and I see a downside for a defense lawyer, where the client cannot count on him.”
He said this objection – not concerns that the classified information would be leaked to Palestinian detainees – was the central problem with the proposed reform. Nitzan concluded: “Maybe some day will come and they will decide differently, but as of now I don’t see it.”