reports of States Parties due in 1992
[25 January 1994]
The State of Israel is a parliamentary democracy in which the
Knesset (the legislature) enacts statutes which are interpreted
and applied by an independent judiciary and enforced by the
executive. Acts of torture, etc. as defined by the Convention
are designated as criminal offences by penal legislation (see
below) and perpetrators of such offences are tried and punished
by the courts.
In addition to the criminal law, the law of civil wrongs enables
a victim of torture to seek civil redress in damages for torts
such as assault or false imprisonment. In appropriate cases,
such civil action is available against the State or public officials.
Israel is a party to the International Covenant on Civil and
Political Rights, provisions of which may be considered as of
wider application than those of the Convention against Torture.
Under the Israeli constitutional system customary international
law is a part of its legal system; however, international conventions
are not part of the law of the land, nor can they be directly
invoked before the courts. The provisions of international conventions
have to be explicitly incorporated into national legislation.
For details of such legislation applying the provisions of the
Convention, see below.
As already stated, the ordinary courts have jurisdiction to
try offences against the penal provisions prohibiting torture
and similar acts. Moreover, those courts can award compensation
in civil actions for damages. In addition, public officials
who violate the criminal law or administrative directives by
which they are bound (see below) are subject to disciplinary
jurisdiction and may incur sanctions imposed by disciplinary
bodies. This includes members of the General Security Services
(GSS), as well as members of the Israel Defence Forces who are
subject to court martial in respect of violation of military
law involving torture or similar acts.
II. IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE CONVENTION
While Israeli legislation does not specifically define torture,
statutory provisions clearly cover all acts of torture as found
in the definition in article 1 of the Convention. (See remarks
on art.4, below).
A number of sections of the Penal Law, 5737-1977 provide criminal
sanctions against acts of torture (see below). Reference should
also be made to the Basic Law: Human Dignity and Freedom, enacted
recently. Moreover, strict guidelines relating to methods of
interrogation of security suspects are also directed to prevention
or torture (see below).
Another relevant statutory provision is section 12 of the Evidence
Ordinance [New Version], 5731-1971 which invalidated any confession
made by an accused person not made freely and voluntarily.
Regarding article 2(3) of the Convention, we refer to section
24(1)(a) of the Penal Law, 5737-1977 which allows the defence
of acting under superior orders only where the orders are lawful.
Where an order is manifestly illegal, as would be the case with
an order to commit acts of torture, acting under such order
would clearly not constitute a defence for a person accused
of committing such acts. On this, we would refer to the decision
of the Supreme Court, sitting as High Court of Justice (27.12.89)
to make absolute decree against the chief Military Advocate,
the chief of the General Staff and others, requiring them to
commit an army officer for trial before a court martial for
committing acts of torture against residents of certain Arab
villages in Samaria (administered territories) during the course
of putting down the Arab uprising (intifada) at its inception
in January 1988. According to the findings of an investigation
instituted at the request of the International Red Cross, the
residents had been bound and severely beaten by orders of the
said army officer. The court characterized such acts as repugnant
to civilized standards of behaviour and rejected the plea that
they were carried out as a result of the "uncertainty"
that prevailed as to orders for quelling the intifada. (High
Court case No. 425/89 Piskei Din (Supreme Court Judgements),
vol. 43, Part IV, p. 718).
Under the Extradition Law, 5714-1954, a prior condition for
any act of extradition is the existence of an extradition convention
between Israel and the State to which it is proposed to extradite
Where a request for extradition is submitted by a foreign State,
the Minister of Justice may direct that the person concerned
be brought before a District Court to determine whether he is
subject to extradition, and in pursuance of such direction,
the Attorney General or his representative submits to the court
a petition to declare the person concerned subject to extradition.
If the statutory conditions are fulfilled, the court will make
such a declaration, and the extradition will then eventually
be carried out. A person declared subject to extradition does
have a right of appeal to the Supreme Court sitting as a Court
of Criminal Appeal within 30 days of the decision of the District
Court. However, the final decision as to his extradition is,
under the Extradition Law, at the discretion of the Minister
The following are the relevant provisions of the Penal Law,
5737-1977 providing criminal sanctions for acts of torture:
"CHAPTER NINE: Offences relating to Public Authority and
the Administration of Justice
Article Four: Offences Committed in or Against the Public Service
Oppression by public servant. A public servant who does one
of the following is liable to imprisonment for three years:
uses or directs the use of force or violence against a person
for the purpose of extorting from him or from anyone in whom
he is interested a confession of an offence or information relating
to an offence;
threatens any person, or directs any person to be threatened,
with injury to his person or property or to the person or property
of anyone in whom he is interested for the purpose of extorting
from him a confession of an offence or any information relating
to an offence."
"CHAPTER ELEVEN: OFFENCES RELATING TO PROPERTY
Article Six: Deceit, Blackmail and Extortion
Blackmail with use of force. (a) A person who unlawfully uses
force to induce a person to do some act or to refrain from doing
an act which he is permitted to do is liable to imprisonment
for seven years or, if the use of force leads to the doing or
omission of the act, nine years.
for the purposes of this section, a person who administers drugs
or intoxicating liquors shall be treated as a person using force."
Regarding complicity of participation in torture, the following
general provisions of the Penal Law, 5737-1977, are relevant:
"CHAPTER FOUR: PARTIES TO AN OFFENCE
In this chapter, 'offence' does not include a contravention.
Where an offence is committed, each of the following is deemed
to have taken part in its commission and to bear responsibility
a person who does one of the acts or makes one of the omissions
which constitute the offence;
a person who, whether or not he is present at the time the offence
is committed, does or omits to do any act for the purpose of
enabling or aiding another person to commit the offence;
a person who, whether or not he is present at the time the offence
is committed, counsels or procures any other person to commit
a person who aids another in committing an offence by being
present at the place where it is committed for the purpose of
overawing opposition or of strengthening the resolution of the
perpetrator or of ensuring the carrying out of the offence.
A person who procures another to do an act or make an omission
which if he had himself done or made it would have constituted
an offence on his part is guilty of that offence.
Where two or more persons associate to pursue an unlawful purpose,
and in the course of its pursuit an offence is committed which
by its nature is a probable consequence thereof, each of them
present at the commission of the offence is deemed to have committed
Where a person counsels another person to commit an offence,
and an offence is thereafter committed by the other person,
the first-mentioned person is deemed to have counselled the
offence actually committed even if it is not committed in the
way counselled or is not the offence counselled, so long as
the facts constituting the offence actually committed are a
probable consequence of carrying out the counsel.
If any person has procured or counselled another person to commit
an offence and before the commission of the offence has countermanded
the commission, he shall not be deemed to have committed the
offence if it is subsequently committed."
Regarding attempts to commit torture, the following general
provisions of the Penal Law, 5727-1977 are relevant:
"CHAPTER FIVE: ATTEMPT AND INCITEMENT
In this chapter, 'offence' does not include a contravention.
A person who attempts to commit an offence shall unless some
other punishment is provided be liable:
to imprisonment for twenty years if the offence is punishable
to imprisonment for fourteen years if the offence is manslaughter;
to imprisonment for ten years if the offence is any other offence
punishable by imprisonment for life;
in every other case, to half the punishment prescribed for the
(a) A person is deemed to attempt to commit an offence when
he begins to put his intention to commit it into effect by some
overt act and by means adapted to achieve such intention, but
does not achieve such intention to such an extent as to commit
It is immaterial, except as regards punishment, whether the
offender does all that is necessary on his part to complete
the commission of the offence or whether the complete commission
thereof is prevented by circumstances independent of his will
or whether he desists of his own motion from further prosecution
of his intention.
It is immaterial that by reason of circumstances not known to
the offender it is impossible in fact to commit the offence.
Any person who attempts to procure or incite another to do any
act or make any omission, in Israel or elsewhere, which if it
were done or made would constitute an offence under Israeli
law or the laws of the place where it is proposed to be done
or made shall be liable to the same punishment as if he had
himself attempted to do the act or make the omission in Israel:
that if the act or omission is proposed to be done or made at
a place outside Israel:
the punishment shall not exceed that which he would have incurred
under the laws of that place if he had himself attempted to
do the act or make the omission;
he shall not be prosecuted save at the request of the State
having jurisdiction in that place."
Mention must also be made of the Police Ordinance [New Version],
5731-1971, section 50 (a) of which, as amended in 1988, defines
as a disciplinary offence as "an offence which prejudices
good order and discipline, as specified in the Schedule."
Item 19 of the Schedule to the Ordinance states the following
to be a disciplinary offence: "Use of force against any
person within the scope of fulfilment of duty, contrary to the
standing orders of the Israel Police or to any other order lawfully
Police standing orders prohibit the use of force except in very
clearly defined cases, i.e. resistance to arrest, attempt to
escape from lawful custody, to overcome mob violence, in self-defence
or to prevent a crime involving violence. In none of these circumstances
would the use of torture be justified. An indictment under this
provision may only be brought by decision of the Attorney General
or of a person authorized by him.
The following are the penalties which a Police Disciplinary
Tribunal may impose for disciplinary offences: reprimand; severe
reprimand; fine of up to two month's pay; confinement to place
of duty for up to 45 days; detention for up to 45 days; reduction
in rank. Disciplinary proceedings may be instituted in addition
to criminal proceedings for the same offence.
Equivalent provisions apply to prison officers under section
101 of the Prisons Ordinance [New Version], 5731-1971 and item
19 of the Schedule to that Ordinance.
Section 65 of the Military Justice Law, 5715-1955 provides as
follows: "A soldier who strikes or otherwise maltreats
a person committed to his custody or a soldier inferior to him
in rank is liable to imprisonment for a term of three years."
A soldier would be tried before a court-martial for such an
Israeli criminal jurisdiction is territorial in nature, covering
all acts committed within the territory under its jurisdiction.
The basic jurisdictional provision of the Penal Law, 5737-1977,
is to be found in section 3 thereof:
"CHAPTER TWO: TERRITORIAL APPLICATION
Extent of jurisdiction. The jurisdiction of the courts in Israel
in the matter of offences extends to the area of the State and
its territorial waters and, by Law, also beyond the said area.
Where an offence is committed partly within the jurisdiction,
the person who commits it may be tried and punished as if he
had committed it wholly within the jurisdiction."
Furthermore, Israeli courts are competent under section 6 of
the said Law to try a national, a resident or a public servant
of Israel who has committed a number of specific offences, among
which are included oppression by a public servant (section 277)
abuse of office (section 280) and blackmail with use of force
(section 427), all of which are quoted above (see remarks on
art. 4). Section 6 reads as follows:
by public servants and offences in respect of public property.
(a) The courts in Israel are competent to try a national, a
resident or a public servant of Israel who committed abroad
one of the following offences:
an offence under any of the sections of articles 4 and 5 of
Chapter Nine of this Law;
an offence under any of the sections of Chapter Eleven, except
sections 401 and 429, and Chapter Twelve or under section 381
(2) or 489, which harms any property or rights of the State
or of one of the bodies or associations specified in the Schedule.
The Minister of Justice may, with the approval of the Constitution,
Legislation and Law Committee of the Knesset, vary the Schedule
by adding or deleting the names of bodies or associations."
Section 7 extends criminal jurisdiction to instances of injury
to Israeli nationals and residents committed abroad:
to nationals or residents of Israel.
(a) The courts in Israel shall be competent to try under Israeli
Law a person who committed abroad an act which would have been
an offence had it been committed in Israel and which injured
or was intended to injure the life, person, health, freedom
or property of an Israeli national or resident of Israel.
If the offence was committed in a place under the jurisdiction
of another State, no information shall be filed under this section
unless the act is also an offence under the law which applies
in that place."
In this context, the following additional provisions of the
Penal Law regarding jurisdiction should be noted:
Attempt, incitement and conspiracy. The courts in Israel shall
be competent to try, in addition to the parties to an offence
under Chapter Four, a person who, in respect of an offence which
a court is competent to try under this chapter, has done any
of the acts mentioned in Chapters Five and Fourteen or in sections
260 to 262 of this Law.
Restrictions. (a) No information shall be filed in respect of
an offence under sections 4 to 9 save by the Attorney General
or with his written consent.
No information shall be filed in respect of an offence under
section 7 unless the penalty prescribed for it by Israeli law
is imprisonment for a term of one year or more.
No person shall be brought to trial under sections 6 or 8 for
an act or omission for which he has been brought to trial, and
convicted or acquitted, abroad.
A person who has committed an offence under sections 4, 5 or
7 may be brought to trial in Israel even if he has already been
brought to trial abroad for the act or omission; but if a person
is convicted in Israel of an offence as aforesaid after being
convicted thereof abroad, the court in Israel shall, in determining
the penalty, have regard to the penalty he has undergone abroad.
Saving of powers. The provisions of this chapter shall not derogate
from any power under another law to try offences committed abroad."
Under the general rules of criminal procedure, where jurisdiction
exists, a person suspected of having committed an offence such
as those constituting torture would be arrested and detained
in custody, or he may be released on adequate bail in appropriate
cases. Police investigation of the alleged offence would be
initiated without delay.
Detainees who are foreign nationals are permitted to communicate
with the diplomatic or consular representatives of their State
Persons suspected of having committed acts of torture would
be prosecuted, if they are not extradited.
or tribunals would decide on cases of alleged torture in the
same way as they decide on any other cases of serious crimes.
Standard of evidence required for proof of torture are the same
whatever the basis of jurisdiction of the court.
For Israeli provisions regarding extradition, see under article
3 above. Israeli law makes extradition conditional on the existence
of an extradition treaty with the State requesting extradition.
A multilateral treaty providing for extradition to which Israel
and another State are party and fulfilling the provisions of
Israeli law satisfies the statutory requirement.
The statute regulating judicial assistance, both civil and criminal,
is known as the Legal Assistance to Foreign States [Consolidated
Version] Law, 5737-1977. The statute provides for service of
documents, taking of evidence, production of documents, seizure
of documents or other articles, carrying out of searches and
performance of other legal acts on behalf of foreign courts.
Moreover, it provides for transfer abroad of prisoners and detainees
for the purpose of giving evidence in foreign proceedings. The
statute provides that judicial assistance may be withheld where
it is likely to prejudice the sovereignty or security of Israel
or any matter of public policy, or where there is lack of reciprocity
between Israel and the State requesting the assistance.
Special regulations govern judicial assistance in criminal matter
to States parties to the Strasbourg (Council of Europe) Convention
of 20 April 1959, to which Israel is also a party.
Articles 11, 12 and 13
The State of Israel maintains that the basic human rights of
all persons under its jurisdiction must never be violated, regardless
of the crimes that the individual may have committed. To prevent
terrorism effectively while ensuring that the basic human rights
of even the most dangerous of criminals are protected, the Israeli
authorities have adopted strict rules for the handling of interrogations.
These guidelines are designed to enable investigators to obtain
crucial information on terrorist activities or organizations
from suspects who, for obvious reasons, would not volunteer
information on their activities, while ensuring that the suspects
are not maltreated.
The basic guidelines on interrogation were laid down by the
Landau Commission of Inquiry. The Commission, headed by the
former Supreme Court President, Justice Moshe Landau, was appointed
following a decision of the Israeli Government in 1987 to examine
the General Security Service's (GSS) methods of interrogation
of terrorist suspects. In order to compile its recommendations,
the Landau Commission examined international human rights law
standards, existing Israeli legislation prohibiting torture
and maltreatment, and guidelines of other democracies confronted
with the threat of terrorism.
The Landau Commission envisioned its task as defining "with
as much precision as possible, the boundaries of what is permitted
to the interrogator and mainly what is prohibited to him".
The Commission determined that in dealing with dangerous terrorists
who represent a grave threat to the State of Israel and its
citizens, the use of a moderate degree of pressure, including
physical pressure, in order to obtain crucial information is
unavoidable under certain circumstances. Such circumstances
include situations in which information which an interrogator
can obtain from the suspect can prevent imminent murder, or
where the suspect possesses vital information on a terrorist
organization which could not be uncovered by any other source
(e.g. locations of arms or explosive caches or planned acts
The Landau Commission recognized the danger posed to the democratic
values of the State of Israel should its agents abuse their
power by using unnecessary or unduly harsh forms of pressure.
As a result, the Commission recommended that psychological forms
of pressure be used predominantly and that only "moderate
physical pressure" (not unknown in other democratic countries)
be sanctioned in limited cases where the degree of anticipated
danger is considerable.
It should be noted that the use of such moderate pressure is
in accordance with international law. For example, when asked
to examine certain methods of interrogation used by Northern
Ireland police against IRA terrorists, the European Human Rights
Court ruled that "[i]ll-treatment must reach a certain
severe level in order to be included in the ban [of torture
and cruel, inhuman or degrading punishment] contained in article
3 [of the European Convention on Human Rights]". In its
ruling, that Court sanctioned the use of certain forms of pressure
in the interrogation process, such as hooding (except during
the actual questioning), sleep deprivation and reduction of
food and drink supply.
The Landau Commission was aware that the issue of moderate pressure
during interrogation is both a serious and a sensitive one.
The guidelines regarding interrogation provide for limited forms
of pressure under very specific circumstances, to be determined
on a case-by-case basis. They by no means authorize indiscriminate
use of force. Rather, specific circumstances have been identified
and interrogation practices have been strictly defined in a
manner that, in the opinion of the Landau Commission, "if
these boundaries are maintained exactly in letter and in spirit,
the effectiveness of the interrogation will be assured, while
at the same time it will be far from the use of physical or
mental torture, maltreatment of the person being interrogated,
or the degradation of his human dignity".
To ensure that disproportionate pressure is not used, the Landau
Commission identified several measures, which have been adopted
and are now in force, namely:
Disproportionate exertion of pressure on the suspect is not
permissible - pressure must never reach the level of physical
torture or maltreatment of the suspect, or grievous harm to
his honour which deprives him of his human dignity.
The use of less serious measures must be weighed against the
degree of anticipated danger, according to the information in
the possession of the interrogator.
The physical and psychological means of pressure permitted for
use by an interrogator must be defined and limited in advance,
by issuing binding directives.
There must be strict supervision of the implementation in practice
of the directives given to GSS interrogators.
The interrogators' supervisors must react firmly and without
hesitation to every deviation from the permissible, imposing
disciplinary punishment, and in serious cases, causing criminal
proceedings to be instituted against the offending interrogator.
Once these measures were set down, the Landau Commission went
on, in a second section of its report, to detail precisely the
exact forms of pressure permissible to the GSS interrogators.
This section has been kept secret out of concern that, should
the narrow restrictions binding the interrogators be known to
the suspects undergoing questioning, the interrogation would
be less effective. Palestinian terrorist organizations commonly
instruct their members, and have even printed a manual, on techniques
of withstanding GSS questioning without disclosing any information.
It stands to reason that publishing GSS guidelines would not
only enable the organizations to prepare their members better
for questioning, but would reassure the suspect as to his ability
to undergo interrogation methods without exposing vital information,
thus depriving the GSS of the psychological tool of uncertainty.
Since the interrogation guidelines are secret, the Israeli Government
recognized the importance of establishing safeguards and a system
of review of interrogation practices in order to ensure that
GSS investigators do not violate the guidelines. As a result,
the GSS Comptroller was instructed to check every claim of torture
or maltreatment during interrogation. Since 1987, the Comptroller
has carried out this responsibility, initiating disciplinary
or legal action against interrogators in cases where they have
been found to have deviated from the legal guidelines.
The Landau Commission recommended that there be external supervision
of GSS activities in addition to the GSS Comptroller. Since
the Landau Commission issued its recommendations, the State
Comptroller's Office has launched an examination of the GSS
investigator's unit. Upon the completion of its inquiry, the
State Comptroller's findings will be submitted to a special
subcommittee of the Knesset (Israeli Parliament) State Comptroller
Committee. Also in accordance with the recommendation of the
Landau Commission, an additional review procedure exists whereby
the conclusions of the special ministerial committee, referred
to below, as well as the annual reports of the investigators'
unit are brought to the attention of the Subcommittee for Services
of the Knesset Foreign Affairs and Defence Committee.
In addition, an agreement between the State of Israel and the
International Committee of the Red Cross (ICRC) provides for
the monitoring of conditions of detention. Delegates from the
ICRC are permitted to meet with detainees in private within
14 days of the arrest. ICRC doctors may examine detainees who
complain of improper treatment. All complaints made by the ICRC
regarding treatment of prisoners are fully investigated by the
relevant Israeli authorities and the findings are made known
to the ICRC.
In May 1991, a special ad hoc committee composed of members
of the GSS and the Justice Ministry was appointed to review
complaints against the conduct of GSS investigators during interrogation.
The committee identified a number of cases in which investigators
did not act in accordance with the guidelines for treatment
of detainees. As a result of the Committee's findings, action
has been taken against GSS investigators involved in these cases.
In order to further ensure the effectiveness of the review process
it has recently been decided to set up an independent body to
check claims of maltreatment instead of the GSS Comptroller.
To this end, a unit has been established in the Justice Ministry
under the supervision of the State Attorney, which will investigate
all complaints of maltreatment in the future.
As recommended by the Landau Commission, a special ministerial
committee headed by the Prime Minister was established in 1988
under the previous Government to review periodically the interrogation
guidelines themselves. This committee held several sessions
but its work was cut short by the national elections which were
held in June, 1992. Following the establishment of the new Government
in July 1992 a new ministerial subcommittee composed of the
Ministers of Justice and Police was appointed. This committee
is currently reviewing the interrogation guidelines and will
soon submit its conclusion and recommendations to the Cabinet.
In 1991, a petition was submitted to the Supreme Court of Israel
sitting as the High Court of Justice by a detainee named Murad
Adnan Salkhat and a private group named the Israel Public Committee
Against Torture, challenging the legality of the guidelines
and demanding that they be made public. This petition, which
is currently pending, demonstrates the openness of the independent
judiciary of Israel to adjudicate even highly sensitive matters
relating to human rights and security.
The Israel Defence Forces (IDF), like the GSS, has a strict
policy of investigating every claim of maltreatment of detainees
by IDF investigators. Soldiers who are found to have deviated
from the strict IDF orders against violence or threat of violence
in interrogation are either court-martialled or have disciplinary
proceedings brought against them, depending on the severity
of the charges. The IDF also appointed a commission to review
interrogation practices and policies. On 10 May 1991, Major
General (Reserve) Raphael Vardi was appointed to investigate
claims of maltreatment of detainees in military investigation
facilities in the administered areas. As a result of his inquiry,
a number of interrogators found to have violated the norms were
punished. In addition, Major General Vardi submitted a list
of recommendations to the IDF Chief of Staff designed to reduce
the possibility of maltreatment by IDF investigators. These
recommendations have been adopted.
In addition to the possibility of bringing a tort action for
damages, the victim of an act of torture has a right to compensation
under the general provisions relating to compensation for victims
of crime. Section 77 of the Penal Law, 5737-1977 empowers a
court that has convicted a person to require him to pay to the
victim of his offence compensation for damage or suffering caused
to him, and calculated on the basis of the time of commission
of the offence or of the time of the decision, whichever sum
is higher. Compensation is recovered in the same way as a fine.
The maximum amount payable to any individual is at the moment
fixed at 37,500 New Shekels.
Section 12 of the Evidence Ordinance (New Version), 5731-1971,
entitled "Confessions" provides as follows:
Evidence of confession by the accused that he has committed
an offence is admissible only when the prosecution has produced
evidence as to the circumstances in which it was made and the
court is satisfied that it was free and voluntary."
The recently enacted Basic Law: Human Dignity and Freedom is
relevant to this article, especially section 2, entitled "Preservation
of Life, Body and Dignity", which states as follows: "2.
No act shall be committed that harms the life, bodily integrity
or dignity of any person as a human being." Section 4,
entitled "Protection of Life, Body and Dignity", reads
"Every person is entitled to protection of his life, bodily
integrity and dignity." Section 11 provides:
11. Every governmental authority shall be bound to respect the
rights under this Basic Law."