The country’s mechanism for probing alleged Shin Bet (Israel Security Agency) abuse of Palestinian detainees has transformed multiple times since 2014. Yet, have any of these changes succeeded in a substantive shift to address human rights concerns?
Here are some statistics about how often Israel investigates torture complaints.
Since 2001, there have been 1,300 torture complaints, but for most of the last 20 years, there were barely any criminal investigations. In recent years, there have finally been a few serious deep probes that grabbed some headlines. However, there has still not been a single indictment.
Moreover, according to a Justice Ministry response sent to the Public Committee Against Torture in Israel (PCATI), as of 2020, there were still two cases open since 2014, five from 2015, 25 from 2016, 21 from 2017 and many more in more recent years. The Ministry updated that at press time there was only one case left from 2015, one from 2016, two from 2018 and five from 2019, all of which are waiting for the state prosecution to decide after the related investigation was already completed.
PCATI itself has said it has around 55 cases still open, some that date back years (the Justice Ministry says that it only has records for six such cases all of which are waiting for decisions by the state prosecution and that it has just under 50 total cases pending through 2021).
The Magazine has learned that as of last week, all of the 2014 cases have been dealt with, two are left from 2015 and the 2016 backlogged cases have been heavily reduced.
PCATI has been the primary human rights group to follow the issue over the years and still believes that most of the changes have been far too limited and are about presentation as opposed to substance.
“Although over the last year we see a procedural improvement regarding the performance of the unit investigating the Shin Bet, such as quickly questioning and gathering testimony [from complainants] after the filing of a complaint, we have not seen a substantive change in how the unit operates,” explained PCATI lawyer Efrat Bergman-Sapir. “Every case, almost without exception, is closed on the mere basis of a preliminary review, which means that Shin Bet interrogators who are involved in torture retain immunity from the state, and victims are left without any form of justice or legal relief.”
Waves of reforms
The previous revolutions started with moving the oversight unit for alleged Shin Bet violations (The Inspector For Complaints Against Shin Bet Interrogators) of detainee rights out of the security agency and into the Justice Ministry in 2014. There was a new head of the unit, Jana Modgavrishvili, a former IDF prosecutor.
This change - the move to the Justice Ministry and the appointment of a unit head not from the Shin Bet - came out of multiple waves of criticism of the agency’s self-policing. There was the Landau Commission of 1987, which revealed that the agency had tortured Palestinian detainees and lied about it.
In 1999, the Supreme Court outlawed torture, leaving the door open to “moderate physical pressure” in special cases to prevent an impending terror attack. Both the Landau Commission and the landmark Supreme Court ruling reduced blatant forms of torture, but PCATI has claimed that loopholes remained.
While there is no official government guide to what crosses the Supreme Court’s line, a careful study of publicly-known practice, as well as information obtained by the Magazine would deduce that the following are probably viewed as legal:
• Sleep deprivation if performed under the guise of non-stop interrogation strategically interrupted with extended “breaks”
• Tying detainees to their chairs in a manner that might be uncomfortable, but not acutely painful• Threats to arrest detainees’ family members
• Exposure to an uncomfortable, but not painful environment whether related to noise, temperature or hygiene• Low-grade roughing-up of detainees ‘in response’ to outbursts
The 2013 Turkel Commission, which evaluated Israel’s apparatus for policing allegations against the IDF and Shin Bet succeeded in convincing the government to move the probes out of the Shin Bet to attain independence.
Modgavrishvili was complimented by PCATI for having good intentions to attempt to wrap cases up more efficiently.
However, government officials have since acknowledged that heavy delays continued, partially due to the underfunding of the unit. A scarcity of investigators translates into cases moving slowly. Since Modgavrishvili already publicly discussed this difficulty before the UN Human Rights Committee, the state’s failure to provide more resources has looked more like a conscious decision than an oversight.
In addition, from September 2018 until August 2019 the oversight unit had no director. Only after a year did Guy Asher, who previously worked at the Shin Bet, replace Modgavrishvili.
There were concerns from human rights critics of having an ex-Shin Bet agent as head of a unit responsible for investigating his former colleagues. But Asher spent 12 years as an investigator in the Police Investigations Department before taking over his current role, meaning he has been removed from the Shin Bet for an extensive period.
After more than two years in office, PCATI has said that Asher has been quick to respond to torture complaints. The Magazine has learned that in the last year under Asher, Shin Bet interrogators were questioned by the unit several hundred times.
Another improvement is that if it used to take years to gather testimony from complainants, now testimony is collected within three-to-five days of a complaint being received. Asher's staff was only increased by one investigator plus himself, but his view would be that he has altered how his unit operates to deal with cases more efficiently and that there is no need for additional staff.
On the other hand, PCATI is mostly critical of Asher for summarily dismissing all cases.
Preliminary probes
The Magazine gained access to a few cases that Justice Ministry lawyer Shlomi Abramson, who decides many cases after receiving evidence from Asher’s department, closed.
In one case, the ministry admitted that a detainee’s mouth had been bloodied by a low-grade slap to the face, but disputed the detainee’s account that he had been struck with a blunt object. The ministry acknowledged the detainee’s family had been threatened with arrest, but justified the threat on the grounds that the family was independently suspected of terror activities. Moreover, the ministry noted that the detainee met his wife while both were detained, and was evaluated, cleaned up and approved for additional questioning by a doctor. It rejected charges that the detainee had been placed in an abusive and painful sitting position.
It seemed that Shin Bet interrogators had straddled near Israel’s line for interrogating detainees – but did not cross it.
Addressing the large volume of cases closed, the position of Asher’s unit and the ministry seems to be that many of the complaints are about the process being unpleasant: being yelled at or cursed at or having insects in the interrogation area. While these allegations are reviewed, they are not criminal.
Criminal probes
Some additional insight can be gained by looking more closely at some of the cases that have been probed.In January, Attorney-General Avichai Mandelblit closed an investigation into Shin Bet interrogators who had allegedly tortured a Palestinian accused of murdering 17-year-old Rina Shnerb in 2019. According to a Shin Bet statement, Samer Arbid prepared the explosive device and detonated it when he saw the Shnerb family approaching the Ein Bubin Spring near the settlement of Dolev.
Arbid, Walid Hanatshe, Abed el-Razeq Faraj, Yzaen Majames and Kasem Shibli were indicted in December 2019. The case was noteworthy since it was only one of two full criminal investigations against the security agency in recent years – because the Palestinian, Arbid, almost died from his interrogation and because of the uproar created by Shnerb’s murder.
Mandelblit said that the case was closed based on the absence of evidence. The attorney-general’s unusual legalistic language appeared to be a hint that some (though not all) of the allegations about how the Shin Bet interrogated Arbid may have been true. At the same time, Mandelblit said that these harsh tactics did not constitute a crime since there is a defense under Israeli law for using “moderate physical pressure” to prevent an imminent “ticking bomb” style attack. The Shin Bet said that its interrogation of Arbid saved lives because it led to locating materials that could have been used for additional attacks.
The trial of Arbid and the rest of his alleged terror cell opened in January 2020 in the Judea Military Court at Camp Ofer. However, Shnerb family lawyer and former IDF West Bank chief prosecutor Lt. Col. (res.) Maurice Hirsch said the courts improperly allowed the Palestinians to drag out the case over debates whether evidence related to Arbid is tainted by the harsh treatment he received. Despite this claim, as of June of this year, the trial was still moving forward at a glacial pace, with the only serious movement against a secondary accomplice who agreed to a plea deal.
In mid-December 2019, the Shin Bet announced it had uncovered a 50-person terrorist cell believed to have been behind a string of deadly attacks in the area. According to its statement, the cell planned to carry out additional attacks in the near future. Many of the weapons were found during a joint IDF and Israel Police raid of a home belonging to one of Arbid’s relatives.
PCATI and Hebrew University Law School dean Yuval Shany have charged that the Shin Bet is abusing what should be a very narrow and rare “ticking bomb” exception for using “moderate physical pressure” on detainees to do “fishing expeditions” for finding illegal weapons, even if no specific new terror plot is planned or suspected. Shany has argued that the High Court of Justice has looked the other way to allow the Shin Bet to broaden the exception.
THE OTHER case that was probed was closed in April, leading to a Shin Bet agent’s resignation, though no one was charged.
That criminal investigation reviewed whether the Shin Bet and IDF committed crimes in their invasive search of a Palestinian woman in 2015, with the criminal probe opened in 2017. It seems the reason that a criminal probe was unavoidable in this case was that testimony taken from IDF officers differed from the Shin Bet about what was done and why.
In other words, the only two cases that were criminally probed involved either a Palestinian who was hospitalized and near death, or when there were open contradictions between IDF and Shin Bet officials.
Although the decision was issued this past April – almost two years into Asher’s term – he was not involved in the case because his unit, under Modgavrishvili, had passed on its recommendations to the Justice Ministry a few months before he took over.
While the discrepancies in the narrative were never resolved, there is consensus that Shin Bet officials contacted the IDF brigade commander, who enlisted a female medic and company clerk to perform a vaginal and anal search for a SIM card they suspected she was concealing on behalf of Hamas. Part of the basis for the request was past experience where the Shin Bet and IDF had found such intelligence documents hidden in the undergarments of Palestinian women. In fact, she had hidden the SIM card in her room, where they later found it.
One aspect of the problem with the search, aside from the invasiveness, was that the SIM card represented standard intelligence and was not needed to stop any specific “ticking bomb” impending attack. One could debate whether such an invasive search might be legal to save lives, but that was not the case here. A Shin Bet official allegedly fabricated an account that there was a misunderstanding about whether the search was “only” supposed to be in the Palestinian woman’s underwear or even more invasive.
The IDF commander and the two junior female soldiers claimed they were just following orders which they assumed were legal since the request came from the Shin Bet.
According to the Justice Ministry, the factual disputes meant it would be hard to prove criminal intent against any of the five defendants even though everyone agreed that the invasive search was unlawful. If the investigators and lawyers probing the Shin Bet could not come up with an indictment in this case, when would they?There is no clear answer but Asher’s unit and the Justice Ministry emphasize that just because a case does not lead to an indictment that does not mean there are no consequences. In fact, Asher’s unit frequently recommends wide-ranging changes to improve safeguards for detainees and sometimes suggests disciplinary measures against Shin Bet officials.
Unfortunately, the Justice Ministry does not produce statistics on how often Shin Bet officers are rebuked or when the agency makes changes based on recommendations from Asher’s unit. If such statistics were publicized, it would better present the state’s case when compared to the statistics produced by PCATI.
While both Modgavrishvili and Asher won some personal kudos from PCATI, it seems the basic allegation that the Shin Bet can torture Palestinian detainees to some degree without consequence remains.