Torture Writ Large: The Israeli Occupation

Louis Frankenthaler is Director of International Outreach at the Public Committee against Torture in Israel (PCATI). The views in this article are the author’s alone.

The Israeli occupation of the Palestinian territories—now more than four decades old—represents a distortion of law and morality. It can be compared to torture, not in terms of specific acts, but in terms of what it means. The occupation represents a power relationship in which one side has absolute power over the other. The weaker side is characterised primarily as a receptacle for pain: although not completely powerless (as a torture victim is), the weaker side—here the entirety of the Palestinian population—is fundamentally without power and thus largely denied meaningful access to resistance in an effective way against the long-term brutality of the occupation. This understanding should inform any discussion of the occupation and, correspondingly, it should guide people in forming, towards the occupation, an ideological and political opposition that is absolute, much as torture is opposed absolutely.

Human-rights non-governmental organisations (NGOs) in Israel and in the global community have reported and continue to report on the systematic use of torture by nations that count themselves as democracies, even though the use of torture is a direct contradiction of any claim to democracy. Israel is one such country. Reports by human-rights groups chastise regimes that persist in using torture and even offer strong critiques of the nature of any regime that would resort to torture, especially on a systematic basis. Even so, we need to ask ourselves to what extent we as human-rights activists and workers actually engage in a struggle against the ideologies that promote and permit the use of torture and the abuse of human rights. I think that the very fact that human-rights NGOs engage in advocacy, public education and protest indicates participation in a struggle against the anti-human-rights ideologies that continue to invade and infect even the most democratic of societies.

Furthermore, it is necessary to understand the human-rights struggle as an ideological one that indeed goes beyond merely pointing out the existence of abuses, but rather that links rights abuses with certain ideological goals on the part of the abusive regime. This is true in any number of circumstances and situations. It is clear, for example, that the opposition to health-care reform in the United States, and that country’s implementation of the death penalty, are abuses based on ideological assumptions. In fact, the use of capital punishment reveals ideological similarities between polities such as Iran, the United States, China and others that each country’s government may wish to deny. So, too, when discussing the Israeli occupation we need to think in terms of ideological context.

Torture and the Occupation

The occupation, as a human-rights abuse in and of itself, and its associated abuses, have context. They do not exist in a vacuum, but rather because Israel sees itself as having a metaphysical right to sovereignty over the territory it occupied in the war of 1967. This claim to territorial rights is accompanied by a blatant disregard for the indigenous people of that territory—the Palestinians. This attitude should bring to mind two historical parallels. One is the conquest of the Native American population and the expropriation of their land in what is now the United States. The other is that of slavery, both in the ancient world and the modern. The relationship between Israel and the Palestinian individual is tantamount to a master−slave relationship. That is, the slave is a rightless person. He may enjoy humane treatment by his master but such treatment is purely at the master’s whim. The torture victim is in a similar slave-like relationship in which no limits apply except for those observed by the “sovereign” (the torturer) as an “act of grace”.¹ This powerlessness of the Palestinians under occupation makes the struggle undertaken by human-rights organisations difficult but all the more necessary; after more than forty years in which there has been no improvement in the situation, the struggle needs to take on a new and more comprehensive dimension.

Torture is an absolute manifestation of absolute power and has been described as “world destroying”.² The torture victim, being at the torturer’s mercy, loses all sense of identity. The victim is denied the bare minimum of human dignities—control over one’s own body. The victim is forced to act and to think according to the dictates of his or her tormentor. Pain is capital, an asset for the torturer that is invested in the destruction of the victim’s personhood. The Israeli occupation does much the same on a wider scale. It is Palestinian society that is subjected to the torment of the master, in this case Israel. And Palestinians, like many torture victims, have no means of redress against their tormentors. There is a high level of impunity in Israel, where complaints of torture are “investigated” by the General Security Service (GSS), the agency accused of the torture, or where Palestinian civilians are all too often killed by the security forces without any subsequent investigation and no fear of prosecution for the perpetrators. On the other hand, every time a Palestinian injures an Israeli, Palestinians feel the consequences or threat of impending consequences almost immediately on an individual and collective basis.

Recent reports by Israeli human-rights bodies, especially those by the Public Committee against Torture in Israel (PCATI), demonstrate that even in the face of international criticism, Israeli judicial criticism (albeit far too weak and infrequent), and the absolute affront to both morality and law, torture in Israel continues to be systematically applied during the arrest, interrogation and imprisonment of Palestinian security detainees.

Israel’s Embrace of Torture

Torture is a part of Israel’s history and it seems to be an integral part of its security strategy. In 1987, an official commission headed by a former chief justice of the Supreme Court, Moshe Landau, confirmed the legality of torture (or as it is euphemistically referred to, “moderate physical pressure”) as far as Israeli interrogations of security detainees were concerned. In practice, torture became official policy following the publication of the commission’s report and it was rampant, especially in the course of Israel’s suppression of the first Palestinian uprising, or intifada. Following a 1999 landmark decision by Israel’s High Court of Justice, the level of torture was significantly reduced. This is an important point because prior to the decision the GSS neither required nor sought any pretext to engage in violent interrogations. However, the High Court confirmed in its decision that

the “necessity” exception is likely to arise in instances of “ticking time bombs”, and that the immediate need ... refers to the imminent nature of the act rather than that of the danger. Hence, the imminence criteria is satisfied even if the bomb is set to explode in a few days, or perhaps even after a few weeks.

With this, the High Court essentially enshrined the ticking-bomb scenario in Israeli law and jurisprudence and institutionalised torture in Israel. Although the court clarified that necessity should not serve as ex-ante legal authorisation for using torture, it was prepared to assume that necessity can serve as a defence if a torturer is criminally charged. Further, the court expanded the time frame of the ticking bomb. Instead of ticking for an hour or so as in many classic bomb scenarios, the detainee can tick for a “few days, or perhaps even ... a few weeks”. The consequences of this are clear: PCATI has handled cases in which so-called ticking bombs were tortured after being officially determined to present imminent threats and also cases in which those not deemed to be ticking bombs have been abused. PCATI is convinced, and motioned the High Court on this matter in 2008, that interrogators receive prior approval to use “special interrogation methods” in certain circumstances and that this prior approval is supported by the ticking-bomb excuse. Calls for investigation and prosecution by the victim or by PCATI are either ignored or unceremoniously brushed aside, with a claim of necessity, while impunity becomes further entrenched in Israel’s legal and political ethos. In this way a sort of ritual has developed in which complaints are made and the GSS investigates itself and finds neither fault nor culpability in its actions.

Exonerating Torture

The fact that there is no sufficient investigatory process or criminal and judicial review of instances of torture runs counter even to the methodology discussed by a legal scholar like Oren Gross, who insists that torture should remain absolutely prohibited but that “the way to reconcile an absolute legal ban on torture with the necessities of catastrophic cases is through official disobedience”. Gross recognises the problem of a priori authorisation for torture, but if the official sees adhering to the ban on torture as “irrational or immoral” he should break the law, violate the ban, torture the suspect and then face the consequences, knowing that the act was “extralegal” and that he is subject to prosecution. The ensuing consequences would be determined by society. Society may choose to punish the torturer or, by exercising “prosecutorial discretion not to bring criminal charges”, accept the act.³

There are several problems with this approach. As regards the Israeli situation, it is clear that Israel claims to uphold the ban on torture and has set up a (fatally flawed) mechanism to check complaints. This mechanism, though, is a classic manifestation of a primary problem with Gross’s reasoning: very often the prosecutors and the investigators cannot be relied upon to uphold the integrity of the investigative process because in effect they are in collusion with the torturers. In Israel, the High Court even declared that “the Attorney-General can establish guidelines regarding circumstances in which investigators shall not stand trial, if they claim to have acted from ‘necessity’.’’ Furthermore, in most places where torture occurs it is systematic. Gross’s solution seems to turn the issue of institutionalised torture into a matter of individual compliance or non-compliance with the law. The absolute ban, in such a case, essentially evaporates into the air, and, as discussed below, the logic of employing this methodology would require an infrastructure to facilitate torture on those “rare”, “catastrophic” occasions when torture would be “needed”. After all, if we need to torture than we better send someone who knows how to do it ...

Training Torturers

With the institutionalisation of torture comes the need to employ a force of well-trained and efficient torturers, as Jessica Wolfendale has observed. Drawing on the work of Ronald D. Crelinsten, Herbert C. Kelman and Jean Maria Arrigo, she makes it clear that extracting “usable” information demands torture of a far more sophisticated variety than when torture is used to terrorise individuals and populations. This type of torture “requires finesse, skill, and discipline ... the ticking bomb torturer needs to be already trained”.⁴

As noted above, Israel has accepted the ticking-bomb scenario as a real-world possibility that may necessitate and legitimise torture. This entails that the state, to deal with such scenarios, must have to hand a corps of professional torturers, their skills maintained over time. They need to learn and they need practice. Our question must be: what does this mean for us? It means that in Israel there is an elite group of professionals who are necessarily desensitised to the pain they inflict while skilfully dehumanising the victim. But even more troubling is the fact that in order to train/educate the torturer, a pedagogy of torture must be developed. Further, Wolfendale argues that the training involved in preparing the torturer for the ticking-bomb scenario precludes confining torture to the parameters of the scenario precisely because being prepared for the scenario means being prepared to torture, at all times, and to obey uncritically an order to torture.

Unfortunately, the case of Israel is one in which Henry Shue’s 1978 forecast is realised: torture is seen as “the ultimate shortcut. If it were ever permitted under any conditions, the temptation to use it increasingly would be very strong”.⁵ Israel, like other modern nation states, has succumbed to this temptation, to what David Luban has referred to as

a set of assumptions that amount to intellectual fraud ... Ticking-bomb stories depict torture as an emergency exception, but use intuitions based on the exceptional case to justify institutionalized practices and procedures of torture. In short, the ticking bomb begins by denying that torture belongs to liberal culture, and ends by constructing a torture culture.⁶

The Reality of Torture

“Torture”, even on the most basic understanding of the word, should conjure in us images of human acts that are unconscionable—not necessarily those images of medieval torture that may immediately come to mind, but of abuses that are equally cruel, yet possibly more insidious. Such torture occurs today in Israel’s detention and interrogation centres. To put it simply, torture is the use of pain against an individual in order to achieve a specific purpose—to elicit information, punish, coerce, or intimidate. Furthermore, torture does not require that the pain inflicted be life-threatening, permanently damaging, or only physical. The key element in determining whether torture has been committed is that the pain be inflicted by a public official or agent and that the victim be in custody and thus unable to resist and certainly unable to present a threat. The classic example of such a torture-situation is that of an individual seated across from his or her interrogator, feet and hands bound while absorbing the blows of the sadistic police or security agent.

Pain is inflicted in many situations that do not fit this archetypal picture of torture. Yet the methods used fall equally within the definition of torture. In the case of Israel, Palestinian victims are denied sleep between interrogation sessions, they are abused after being arrested by soldiers, kicked, beaten, and blindfolded. Palestinians are forced to sit in painful positions and endure intentionally painful shackling as well as standard beatings; they have even been sexually abused. They are subjected to sensory abuse—extremes of heat and cold, and prolonged confinement in absolute darkness alternating with exposure to glaring light. Threats against self and family are common; sometimes, as PCATI has described in its 2008 report “Family Matters”, a theatre of the macabre is staged in which the detainee is shown a family member in the custody of an interrogator and told that the father, mother, wife or child will suffer too.⁷

Torture, then, can be seen as the state’s way of using the victim against himself and of causing self-betrayal.⁸ Of course, after the torture ends, the victim may well be tried and convicted based on the “evidence” gained in the interrogation. In fact, the Palestinian victim’s ordeal is one of the abject abuse of rights, the abuse of human dignity, of personal and national sovereignty, and denial of the basic human expectation of respect for one’s physical, psychological and political integrity.

Like the Palestinian security detainee, so, too, the entire Palestinian polity, under the occupation, is subject to a tortured existence. The security suspect is both physically and psychologically broken down and then expected to stand before his judges and accept the mockery of justice meted out to him. Similarly, the Palestinian people are denied the basic rights of human dignity. Denied the right to move freely, they are confined in the most painful and oppressive situations. They are turned against themselves, some being coerced into collaboration. Many are forced from their homes, denied schooling, access to hospitals, and contact with family and friends from whom they are divided by Israel’s illegal separation wall in the West Bank. On the wrong side of the wall, lacking the magical magnetic pass card, they are denied the right, taken for granted by those of us in the occupier society, to drive to another city to visit a friend or just to go out to eat; the Palestinians are restricted in space, time and life. Like a security prisoner who has his basic bodily functions—sleep, nutrition, movement—interfered with, the ordinary Palestinian, too, is restricted. The chain of the occupation may afford a little more slack but its goal equally is to constrict and confine.

Just as Israel spurns calls for the prosecution of those who torture Palestinian detainees, so, too, it rejects calls for an end to the occupation—a real end that will lead to political parity and justice for Palestinians in the same political space as their oppressors. Israel’s legal and political ethos is impervious to critique regarding Israel’s treatment of the Palestinian collective; Israel resists justice and scorns some of the most essential concepts of democracy. Like its individual counterpart victimised in the interrogation chamber, the Palestinian collective is left standing, unendingly and increasingly painfully in line and in limbo as it waits in vain for the occupation to end.

It should be clear that I am using the torture that individual Palestinian security suspects suffer as a metaphor for the overall abuse that takes place under the occupation. First of all, on the larger ideological scale, torture is an affront to democracy and so is the occupation. Torture has no justification and cannot be excused even in the direst of circumstances. Similarly, the occupation, especially in the way it has manifested itself over more than forty years, is beneath contempt and utterly without justification. The Israeli conquest of the Palestinian territories has outlived even the remotest of justifications for its existence. Its perpetuation has opened that conquest up to the criticism of having gone beyond occupation to annexation, expropriation, colonisation and even a form of political slavery. For this reason, the occupation does not represent a state of war to which a “peace process” would be the ultimate remedy. Rather, peace needs to be part of an ideological transformation of the situation and of how the Israeli oppressor society views this situation. That is not to say that calls for peace—i.e., for an end to the abomination of sending Israeli children to kill and be killed—should be scorned as egocentric or self-centred. Such calls, even when lacking ideological maturity, should be welcomed, embraced and transformed, because, if nothing else, at the very base of our efforts we are all trying to save our children.

The Human-Rights Community

Human-rights NGOs need to be active participants in this struggle against the occupation. This struggle, while not a party-political one, is political all the same. It is political because it is a struggle against a regime that denies power, equality, freedom, rights and sovereignty to its subjects. The Israeli occupation and all its attendant abuses are conducted not by one political party, entity or branch of government, or even by the government alone, but by Israeli political society as a whole. Each political party that has held power in Israel—Labour, Likud, Kadima—and each branch of government, too, has played an essential role in perpetuating the occupation, to the point where conventionally held views regarding its culmination are no longer viable.

For this reason, just as the global human-rights community has built a massive base of opposition to torture and other rights abuses, it needs now to expand on this struggle and to integrate a larger civil-society perspective—one incorporating legal, social, ideological, developmental, gender and human-security considerations—into its efforts. It is clear that torture in Israel continues and that “security concerns” simply veil the ulterior motives for its use; likewise, the occupation is a veiled attempt to expand territory for the benefit of Israeli Jews at the expense of Palestinians. It is therefore apparent that the occupation will not “end” without a calculated non-violent, ideological struggle to expose its core and bring about its transformation.

Indeed, this struggle is one for the transformation of the Israeli oppressor society. To adapt the Brazilian theorist Paolo Freire, this may be understood as a “pedagogy of the oppressor” and a “conscientisation”, a type of learning which includes taking action against oppressive elements in one’s own life and in the society of which one is a part.⁹ That is, the occupation did not just occur and neither do torture or other human-rights abuses. When abuses are perpetrated by a society that defines itself as a democracy, they occur because they are allowed to and because they benefit the oppressor. The privileged essentially make those who lack privilege invisible. But those with power must come to see that their power-base is limited and founded on myths that offer no security and no democracy, not to members of the oppressor society and certainly not to the oppressed.

Conclusion

This essay should not be seen as a criticism of human-rights work but rather as a challenge. The work that we in the human-rights NGO community do is a prime example of praxis, action that is informed, and linked to certain values. We aspire to connect ideology, theory and action.

The comparison of torture and the occupation is not a one-to-one comparison. Both are of separate dimensions, yet in terms of the occupation they are indivisible. Torture is a specific human-rights violation that has its own very specific set of characteristics, legal definitions, and prohibitions under international law. This article has sought to use metaphor to contextualise both torture and the occupation. The pain that is inflicted by the occupation on innocent Palestinian civilians is certainly not torture, but is nevertheless excessive and grotesque. Both torture and the Israeli occupation are illegal and immoral. Torture is so all the time. Occupations may sometimes be “legal” under international law, but the Israeli occupation has assumed such levels of mutation that it can no longer be recognised as occupation under international human-rights law. But even if it is still recognised as occupation, the acts pursued by Israel during its course are certainly illegal to the extent that they constitute war crimes. Audrey Bomse, an American attorney who was involved in an anti-torture coalition in Palestine/Israel, has noted that whether the issue is the occupation or the package of human-rights violations that come with it, the violations “follow from the logic of occupation. It is possible to expose and combat—and even minimize—human rights violations, but you can’t end them entirely without ending the occupation”.¹⁰

Endnotes

1. For an extended examination of the similarities between torture and slavery, see Sanford Levinson, “Slavery and the Phenomenology of Torture”, Social Research 74, no. 1 (spring 2007), pp. 149−68.

2. Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (Oxford: Oxford University Press, 1985), p. 29.

3. Oren Gross, “Torture and an Ethics of Responsibility”, Law, Culture and the Humanities 3, no. 1 (February 2007), pp. 44−5.

4. Jessica Wolfendale, “Training Torturers: A Critique of the ‘Ticking Bomb’ Argument”, Social Theory and Practice 32, no. 2 (April 2006), p. 272.

5. Henry Shue, “Torture”, Philosophy and Public Affairs 7, no. 2 (winter 1978), p. 141.

6. David Luban, “Liberalism, Torture, and the Ticking Bomb”, Virginia Law Review 91, no. 6 (October 2005), p. 1427.

7. Aviel Linder, “Family Matters: Using Family Members to Pressure Detainees under GSS Interrogation”, Public Committee against Torture in Israel, Jerusalem, April 2008 [http://www.stoptorture.org.il/files/Fmily%20Matters%20full%20report%20eng.pdf].

8. See Scarry, The Body in Pain.

9. For more on this line of thinking, see Ann Curry-Stevens, “New Forms of Transformative Education: Pedagogy for the Privileged”, Journal of Transformative Education 5, no. 1 (January 2007); Steven P. Schacht, “Teaching about Being an Oppressor: Some Personal and Political Considerations”, Men and Masculinities 4, no. 2 (October 2001); and Michael Kimmel, “Toward a Pedagogy of the Oppressor”, Tikkun, November/December 2002.

10. Audrey Bomse, “Torture and the Occupation”, Guild Practitioner 63, no. 4 (fall 2006), p. 208.