An anti-torture law currently being drafted by the Justice Ministry is not enough to fix an entire legal system that allows the practice to be used against an occupied population.
During its review session at the UN Committee Against Torture in Geneva on Wednesday, Israel’s representatives informed the committee that the Justice Ministry is drafting a bill that, for the first time, would explicitly enshrine torture as a crime under Israeli law. This appears to be a very positive development in a years-long battle to end Israel’s use of torture, championed by torture victims, human rights groups, and UN bodies.
Past experience, however, warns us not to be optimistic about this news. Israel ratified the Convention Against Torture in 1991, and many Israelis argue that the country’s domestic legal system already offers safeguards that ban torture – with some exceptions. A 1999 Supreme Court ruling supposedly regulated the practice, but the ruling actually provides loopholes for security agencies to employ torture methods under vaguely defined circumstances. Contrary to the wanton actions taken by sadistic regimes like in Syria, torture in Israel (both psychological and physical) is often carried out in a highly controlled and methodical manner, sugar-coated by terms like “moderate physical pressure” and justified by “necessity” and cases of “ticking bombs.”
Along with the court’s ruling, Israel has an array of legal and administrative tools that enable the use of torture. For example, a temporary order which has been repeatedly renewed since 2002 exempts the Shin Bet from making any kind of recordings during interrogations of “security” suspects; in other words, the security service has a carte blanche to torture detainees with no evidence to hold them to account. Knesset members have introduced further legislation, like the Anti-Terrorism Bill, which would enshrine various emergency regulations into official law and, by broadening the definition of what constitutes a “terrorist,” would grant the state more draconian powers. All the while, not a single criminal investigation has been opened into the use of torture by Israeli officers and interrogators, despite over 850 complaints filed since 2001.
So why, after 25 years of ignoring its obligation under the torture convention, is the Justice Ministry finally initiating an anti-torture law? Several factors are at play, but a major one has to do with recent domestic developments. Last December, Israel’s right wing was outraged by reports that the Jewish citizens suspected of committing a deadly arson attack in the West Bank village of Duma were being tortured by the Shin Bet. Israeli officials, including Justice Minister Ayelet Shaked, met with the suspects’ families and raised concerns about their open-ended custody in administrative detention. Shaked and others now seem to want to restrict the Shin Bet’s ability to use torture on such Jewish suspects, particularly as local and international attention over high-profile cases like the Duma and Abu Khdeir killings encourages the security service to use harsher methods to acquire information and confessions about violent underground Jewish groups.
Some will argue that this political backstory is irrelevant, as an anti-torture law should still have a positive effect on Palestinians too. But as the Supreme Court ruling and other Israeli legislation suggest, this new law is likely to have similar loopholes to ensure that the primary targets of Israeli torture – Palestinians under occupation – can still be subjected to those practices while Jewish citizens are protected. This is already achieved in part by Israel’s different treatment of prisoners classified under criminal offenses (who are overwhelmingly Israeli citizens) and those classified under security offenses (overwhelmingly Palestinians). More importantly, Israel’s dual system of applying civilian law for Israelis on the one hand (including in settlements in the Occupied Territories), and military law for Palestinians on the other, means that any new legislation will still be anchored in the wider discriminatory structures of Israel’s occupation.
Israel undoubtedly needs a law defining torture as an absolute crime, and the one being drafted by the Justice Ministry is an important step forward. But for most Palestinians, this law is unlikely to change the reality on the ground. From political prisoners to Gaza fishermen, thousands of Palestinians have experienced and continue to experience multiple forms of torture and ill-treatment at the hands of Israeli authorities (and increasingly by the Palestinian Authority as well) without justice, redress, or rehabilitation. Even Palestinian children are not safe from these practices, with night raids, beatings, verbal threats, and other tactics being routine experiences for hundreds of kids every year.
That is because contrary to how the Israeli delegation tried to portray it in Geneva, torture in Israel is not an irregularity – it is a system backed by legal machinery and driven by a political goal: to control an occupied population. Until the government has a serious discussion about dismantling that system in its entirety, we should not hold our breath over one law that officials claim will fix it.
A Hebrew version of this article appears on Local Call. Read it here.