Israeli Supreme Court's "license to torture” ruling
GENEVA (20 February 2018) - The UN Special Rapporteur on torture, Nils Melzer, expressed his utmost concern after a December 2017 ruling by Israel's Supreme Court exempting security agents from criminal investigation despite their undisputed use of coercive "pressure techniques" against a Palestinian detainee.
“This ruling sets a dangerous precedent, gravely undermining the universal prohibition of torture,” the expert said. “By exempting alleged perpetrators from criminal investigation and prosecution, the Supreme Court has essentially provided them with a judicially sanctioned 'license to torture’.
“I urgently appeal to all branches of Israel’s Government to carefully consider not only its own international obligations, but also the consolidated legal and moral views of the international community, before whitewashing methods of interrogation that are more closely associated with barbarism than with civilization.”
In 2007, Assad Abu Gosh, a Hamas affiliate from Nablus in the West Bank, was arrested and interrogated by the Israeli Security Agency (ISA) about laboratories producing explosives for Hamas, and about possible plans for terrorist attacks.
The Supreme Court acknowledged that, during his interrogation, Mr. Abu Gosh had suffered coercive "pressure techniques" but said these techniques did not amount to torture because they had not caused sufficiently severe pain or suffering.
"This argument is unacceptable,” said the Special Rapporteur. "Any interrogation technique that intentionally inflicts pain or suffering of sufficient intensity to make the victim confess or cooperate amounts to torture, and this certainly is the case for the methods used during Mr. Abu Gosh's interrogation.
“Mr. Abu Gosh was reportedly subjected to ill-treatment including beatings, being slammed against walls, having his body and fingers bent and tied into painful stress positions and sleep deprivation, as well as threats, verbal abuse, and humiliation.
“Medical examinations confirm that Mr. Abu Gosh suffers from various neurologic injuries resulting from the torture he suffered.”
Mr. Melzer also criticized the court’s acceptance of the so-called "necessity defence", under which the interrogation techniques were held to be warranted because of grave suspicions that Mr. Abu Gosh had information about life-threatening terrorist activities.
It was “completely irrelevant” whether the torture had yielded useful counter-terrorist intelligence in this case, the Special Rapporteur said.
"Torture has been universally outlawed not because it never works, but because of its fundamental and irreversible assault on the human dignity of everyone involved,” he said.
"Once we start justifying torture based on utility or necessity, we cross a red line beyond which even the most categorical prohibitions of international law can be sacrificed in the name of a purported greater good.
“The absolute prohibition of torture and ill-treatment is one of the most fundamental achievements in human history, and its violation is listed among the most serious international crimes, including crimes against humanity and war crimes. No circumstances, however exceptional and well argued, can ever justify torture.”
The Special Rapporteur said he remained keen to engage in a “direct and constructive dialogue” with the Israeli authorities to achieve a complete ban on torture.
Mr. Nils Melzer (Switzerland) was appointed by the UN Human Rights Council as the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in November 2016. Mr. Melzer has previously worked for the International Committee of the Red Cross and the Swiss Federal Department of Foreign Affairs and is currently the Human Rights Chair of the Geneva Academy of International Humanitarian Law and Human Rights.
The Special Rapporteurs and Working Groups are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.