Torture and the Degrading Treatement in the West Bank and GazaMonday 29/08/2016

Assessing the Implementation of UN Convention Against Torture

For the full report click, here.

Article 5 of the Universal Declaration of Human Rights, along with Article 7 of the International Covenant on Civil and Political Rights (ICCPR) declare that no person shall be subject to torture, to cruel, inhuman, or degrading treatment or punishment.  This report examines the Palestinian Authority’s (PA) adherence to the UN Convention Against Torture (UNCAT), to which it is a signatory member.  Since 1984, 155 states have ratified UNCAT.  Of 142 states investigated for their adherence to and implementation of UNCAT, at least 79 still carry out acts of torture (2014).  Even for those 40 states who have not adopted the Convention, a global ban on torture, as part of customary international law, compels all states against the use of torture and cruel, inhuman punishment.

Palestinians in the West Bank and Gaza are repeatedly subjected to severe violations of the basic rights of freedom from torture and abuse at the hands of Palestinian leadership. This report provides a better understanding of the current situation within the territories and of the UNCAT violations committed by the PA.

Many critics of the use of torture argue that it is immoral and impractical, as the information obtained through it is often false.  Human Rights Watch states that torture is “a bedrock principle of international law.  Torture, as well as cruel, inhuman or degrading treatment, shall be banned at all times, in all places, including in times of war…”  Yet, various organizations report that torture and cruel punishment occur on a regular basis in the territories, sometimes resulting in death.

ACCESSION TO UNCAT — April 2, 2014

Upon receiving ‘Observer State’ status to the UN in November 2012, Palestine was granted access to various international conventions and organizations, and the PA acceded to 15 international conventions and treaties regarding human rights, humanitarian law, and diplomatic relations.  As such, the PA has obliged itself to comply with a number of conventions and their provisions, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (1984).  In December 2014, the PA ratified yet another 20 international treaties and conventions.  As a signatory member of these international treaty and conventions, the State of Palestine is required to submit reports of the status of human rights in Palestine and the procedures adopted to improve human rights where they are lacking.  As of writing, no reports have been submitted.

An Optional Protocol to UNCAT (OPCAT) was adopted by the UN General Assembly in December 2002, which took effect June 2006, whose objective is to establish a system of regular visits to the West Bank and Gaza to prevent torture and other inhuman treatment.  However, Palestine has yet to sign OPCAT, though the Palestinian Ministry of Foreign Affairs has the protocol listed as one of the treaties “they want to sign.”  According to one UN official, reasons for not signing thus far include not wanting to allow open access to an international body to look into all places of detention that the PA would rather keep away from the public eye.

THE STATE OF PALESTINE AND OTHER HUMAN RIGHTS DECLARATIONS

The PA, as a member of the Organization of Islamic Cooperation, adopted both the Cairo Declaration on Human Rights in Islam (CDHRI) and the Arab Charter on Human Rights (ACHHR).  Article 20 of the CDHRI states that it is not tolerable to arrest an individual, restrict his freedom, or exile or punish him without legitimate reason.  As well, physical and psychological torture, as well as any form of humiliation, is not permissible.  Similarly, Article 8 of the ACHHR outline prohibitions on torture and cruel, inhuman treatment.  However, while both declarations prohibit torture, both also stipulate that all rights and freedoms are subject to Sharia Law.  Furthermore, Article 4.2 of the Amended Palestinian Basic Law states that Sharia Law serves as the main source of legislation.  Issues here arise with how Sharia Law dictates punishment for those who inflict torture on others: “the punishment of such an act [torture] is Qisas, which means that the criminal would be punished with the same act he/she did.”  Responding to torture with torture is in violation of UNCAT.

UNCAT ARTICLES

According to the definition provided by UNCAT, for an act to be considered torture it must be intentional, cause severe pain or suffering, be intended to achieve a purpose (as mentioned), and it must be done by, or with the acquiescence of, a public official.  Article 13 of Palestinian Basic Law corroborates this, stating that no duress, either slight or moderate, can be used against any person.

According to the Independent Commission for Human Rights (ICHR), 1,274 complaints of violations of the right to freedom from torture and ill-treatment were reported in 2014.  These abuses continued regularly throughout 2015, despite the ratification of UNCAT.  One common target of Palestinian officials is local and foreign journalists, who are often detained and tortured for critical remarks that refer to Fatah, Palestinian leadership, or corruption in Palestine.  The PA does not tolerate criticism, and continuously intimidates journalists to deter them from exercising their freedom of expression.  One source reports that “a journalist must be very careful.  In Gaza, there are journalists being tortured.  There is torture considered [sic] as a common procedure…”

Despite Palestinian Law ensuring freedom from torture, documented accounts of torture of Palestinians in Palestinian prisons have been collected by organizations like the Arab Organization for Human Rights in London (AOHR UK).  An article by Middle East Monitor states that the headquarters of PA intelligence services in Bethlehem is a “slaughter house” used for torturing prisoners.  

In June 2015, Awni Mazen Al-Shaksheer, a Palestinian student from Nablus, was arrested and tortured by intelligence services for his involvement in student activism.  He was beaten with sticks, cables, punched, kicked, and slapped, as well as subject to sleep deprivation, a form of psychological torture.  He was held in two different prisons, never charged, nor given the right to appear before a judge.  This case is not unique; Palestinians are routinely arrested and detained by PA forces for various reasons, including activism against the government.  According to a 2014 Annual Report by the Palestinian Center for Human Rights, security officers in the West Bank and Gaza continue to practice torture as a primary means of obtaining information when dealing with prisoners.

FATAH vs. HAMAS

Though Fatah and Hamas make up the heart of Palestinian leadership, their relations are severely strained.  In 2014, they attempted to reconcile in an agreement to create an interim government; however, they have failed to cooperate.  Fatah, as the governing faction in the West Bank, is carrying out the “worst kind of torture” against Hamas members, while Hamas is reported to carry out a “brutal campaign of abductions, torture, and unlawful killings against Palestinians accused of collaborating with Israel and others.”  In August 2014, at least 25 Palestinians were executed by armed Gazan groups.

CONTESTING TORTURE UNDER UNCAT

Despite Article 13 of the Amended Palestinian Basic Law prohibiting ‘any duress or torture’, the US Department of State Report 2014 reported on several abuse cases.  These complaints included victims being forced to stand in uncomfortable stress positions, flogging, hand binding, suspension, blindfolding, punching, and beatings with clubs, electric cables, or hoses.  There are also reports the PA security forces use these tactics on Palestinian minors.  

Torture is clearly defined as a criminal offense, and Article 32 of the Amended Palestinian Basic Law reiterates this point by stating that any violation of personal freedom, of the sanctity of the private life of human beings, or of any of the rights or liberties that have been guaranteed by law or by Basic Law, are considered to be criminal offenses.  As well, the Jordanian Penal Code No. 74 of 1960 criminalizes acts of torture conducted by an official with the goal of obtaining a confession.  The issue here: these acts are not referred to as ‘torture’ in the text; rather, they are crimes that simply meet the definition of torture.  

While it is a criminal act meant to be punished as a crime, too many cases reveal that torture is used widely within Palestine with little to no punishment enforced.  Most of these acts are committed in hidden places or prisons, and Human Rights Watch reports that no Palestinian security official has ever been convicted for abuse in custody.

The reason for lack of enforcement against the use of torture could be related to the language used in the legal code.  Not all torture is prohibited by the Penal Code, specifically those acts not used to gain information or confessions.

The PA does not admit that torture takes place within their jurisdiction, or admits only isolated incidents insisting that action be taken against those responsible.  Moreover, PA officials insist that security personnel be educated on the prohibition of torture.  “All of the personnel know that torture is forbidden.  Not all of them know that it is against [the] human rights convention.”  

There are hundreds of torture incidents reported yearly in both the West Bank and Gaza according to the ICHR.  These are often exceed or justified based on claims that PA forces lack the necessary tools to investigate crimes, like DNA testing and eavesdropped equipment, so they use torture to make up for equipment they lack.  This excuse does not account for the amount of foreign money pouring into the PA that could be used to aid security officials.

Amnesty International reports (2015) that in the West Bank, detainees alleged they were tortured or ill-treated by police and other security officials.  In Gaza, at least three men were reported to have died in custody, allegedly from torture by internal security officials.  One case, reported by The Times of Israel shares the story about Ahmad Bilal Abd al-Malak al-Deekm, who was arrested for criticizing the government on social media.  Al-Deekm reported he was subjected to various forms of abuse and torture, including sleep deprivation, beatings, verbal abuse, and was forced to perform humiliating acts (which qualify as psychological torture).  

Individuals must have a place to complain and air grievances, like security or military courts.  However, in Palestinian territories, not only does it take many years to complete a legal process relating to cases and victims of torture, but also courts are not completely independent.  If Palestinians do not have reliable, impartial, and uncorrupted authorities to whom they can report grievances, then agreement and adherence to the provisions laid out in Article 13 can never be achieved.

To reiterate, Article 13 states that duress or torture are prohibited.  Though Palestinian Basic Law ensures that violations of this will be met with compensation, there is little evidence to prove this method works in practice. A resident from Ramallah stated the lack of compensations for these violations in an interview conducted in November 2015 “…The government does not compensate those who have been tortured and does not provide them with psychological support…”  These cases are more often than not mishandled and purposely delayed, and victims cannot expect to be granted redress, compensation, or rehabilitation as long as this practice continues.  

The case of al-Deekm has met these setbacks, with the PA refusing to provide him with any redress.  One source, a representative of the Civil Commission for Independence of the Judiciary and Rule of Law, acknowledges the government may not want to pay monetary compensation, but some kind of compensation must be had for the violations that have been inflicted upon the victims.

Other acts of ill-treatment, as defined by a UN official, are acts of cruel, inhuman, or degrading treatment or punishment that are not intended to cause harm (like bad prison conditions), or where the pain and suffering caused by these acts do not meet the ‘minimum requirement’ for the definition of torture.  There are many methods of torture not included in the official definition, and therefore do not need to be ‘punished’ by law.  These include hitting a victim “softly”, as is done by Palestinian security forces.  As well, many psychological methods are not regarded as torture, including sleep deprivation, witness the torture of family members, solitary confinement, taunting, sexual and cultural humiliations, etc.

Regardless of kind of torture, whether ‘soft’ or not, victims suffer various consequences, including PTSD, or ‘continuing traumatic stress disorder.’  Other psychological illnesses include depression, anxiety, insomnia, hallucinations, and flashbacks — all chronic effects of torture.  Victims of both physical and psychological torture experience difficulty reintegrating into one’s daily life, relationships, and society, as well as being at higher risk of suicide.

As the PA ratified UNCAT in April 2014, a report should have been submitted by May 2015. As of writing, no report has been submitted.  Reasons for not submitting reports, according to an interviewee at The Civil Commission for the Independence of Judiciary and Rule of Law, include a lack of capacity in the administration, or because the report is not a priority.  The Director of the Civil Commission for the Independence of the Judiciary and the Rule of Law claims that if the PA wanted to forbid torture or show their respect for human rights, “they [would] report and publish all agreements and consider them as law.”  In summary, there seems to be no value to the PA ratification of UNCAT and other conventions; it holds no legal significance to stop human rights abuses in the territories.