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GLOBAL DIALOGUE Volume 12 Number 12 Winter/Spring 2010Working the Dark Side

Torture Writ Large: The Israeli Occupation

LOUIS FRANKENTHALER

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

he Israeli occupation of the Palestinian territoriesnow more than four decades oldrepresentsa distortion of law and morality. It can be compared to torture, not in terms of specific acts, but interms of what it means. The occupation represents a power relationship in which one side hasabsolute 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 sidehere the entirety of thePalestinian populationis fundamentally without power and thus largely denied meaningful access to

resistance in an effective way against the long-term brutality of the occupation. This understandingshould 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 isopposed absolutely.

Human-rights non-governmental organisations (NGOs) in Israel and in the global community havereported and continue to report on the systematic use of torture by nations that count themselves asdemocracies, even though the use of torture is a direct contradiction of any claim to democracy. Israel isone such country. Reports by human-rights groups chastise regimes that persist in using torture and evenoffer 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 actuallyengage 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 educationand protest indicates participation in a struggle against the anti-human-rights ideologies that continue toinvade 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 certainideological goals on the part of the abusive regime. This is true in any number of circumstances andsituations. It is clear, for example, that the opposition to health-care reform in the United States, and thatcountrys 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 countrys government may wish to deny. So, too, when discussing the Israelioccupation 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. Theydo not exist in a vacuum, but rather because Israel sees itself as having a metaphysical right tosovereignty over the territory it occupied in the war of 1967. This claim to territorial rights isaccompanied by a blatant disregard for the indigenous people of that territorythe Palestinians. Thisattitude 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 Palestinianindividual is tantamount to a master slave relationship. That is, the slave is a rightless person. He mayenjoy humane treatment by his master but such treatment is purely at the masters whim. The torture

ure Writ Large: The Israeli Occupation - Centre for World Dialogue http://www.worlddialogue.org/print.php?id=458

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victim is in a similar slave-like relationship in which no limits apply except for those observed by thesovereign (the torturer) as an act of grace. 1 This powerlessness of the Palestinians under occupationmakes 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 takeon 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 torturers mercy, loses all sense of identity. The victim is denied the bareminimum of human dignitiescontrol over ones 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 inthe destruction of the victims 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 securityforces 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 judicialcriticism (albeit far too weak and infrequent), and the absolute affront to both morality and law, torture inIsrael continues to be systematically applied during the arrest, interrogation and imprisonment of Palestinian security detainees.

Israels Embrace of Torture

Torture is a part of Israels 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, confirmedthe legality of torture (or as it is euphemistically referred to, moderate physical pressure) as far asIsraeli interrogations of security detainees were concerned. In practice, torture became official policyfollowing the publication of the commissions report and it was rampant, especially in the course of Israels suppression of the first Palestinian uprising, or intifada. Following a 1999 landmark decision byIsraels 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 violentinterrogations. 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 evenif 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 notserve as ex-ante legal authorisation for using torture, it was prepared to assume that necessity can serveas 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 afew days, or perhaps even ... a few weeks. The consequences of this are clear: PCATI has handledcases in which so-called ticking bombs were tortured after being officially determined to presentimminent 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 issupported by the ticking-bomb excuse. Calls for investigation and prosecution by the victim or by PCATIare either ignored or unceremoniously brushed aside, with a claim of necessity, while impunity becomes


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further entrenched in Israels legal and political ethos. In this way a sort of ritual has developed in whichcomplaints 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 insiststhat torture should remain absolutely prohibited but that the way to reconcile an absolute legal ban ontorture 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 asirrational or immoral he should break the law, violate the ban, torture the suspect and then face theconsequences, knowing that the act was extralegal and that he is subject to prosecution. The ensuingconsequences would be determined by society. Society may choose to punish the torturer or, byexercising 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 Grosss 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 theAttorney-General can establish guidelines regarding circumstances in which investigators shall not standtrial, if they claim to have acted from necessity. Furthermore, in most places where torture occurs it issystematic. Grosss solution seems to turn the issue of institutionalised torture into a matter of individualcompliance or non-compliance with the law. The absolute ban, in such a case, essentially evaporates intothe air, and, as discussed below, the logic of employing this methodology would require an infrastructureto 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 tortureof a far more sophisticated variety than when torture is used to terrorise individuals and populations. Thistype of torture requires finesse, skill, and discipline ... the ticking bomb torturer needs to be alreadytrained. 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 tohand 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 groupof professionals who are necessarily desensitised to the pain they inflict while skilfully dehumanising thevictim. 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 obeyuncritically an order to torture.

Unfortunately, the case of Israel is one in which Henry Shues 1978 forecast is realised: torture is seen

as the ultimate shortcut. If it were ever permitted under any conditions, the temptation to use itincreasingly would be very strong. 5 Israel, like other modern nation states, has succumbed to thistemptation, to what David Luban has referred to as


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a set of assumptions that amount to intellectual fraud ... Ticking-bomb stories depict torture as an emergencyexception, 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 humanacts that are unconscionablenot necessarily those images of medieval torture that may immediatelycome to mind, but of abuses that are equally cruel, yet possibly more insidious. Such torture occurs todayin Israels detention and interrogation centres. To put it simply, torture is the use of pain against anindividual in order to achieve a specific purposeto 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 beinflicted by a public official or agent and that the victim be in custody and thus unable to resist andcertainly unable to present a threat. The classic example of such a torture-situation is that of an individualseated 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 aswell 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 toglaring light. Threats against self and family are common; sometimes, as PCATI has described in its 2008report 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 states 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 theevidence gained in the interrogation. In fact, the Palestinian victims ordeal is one of the abject abuseof rights, the abuse of human dignity, of personal and national sovereignty, and denial of the basic humanexpectation of respect for ones 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 downand 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 movefreely, they are confined in the most painful and oppressive situations. They are turned againstthemselves, 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 Israels illegalseparation 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 cityto visit a friend or just to go out to eat; the Palestinians are restricted in space, time and life. Like asecurity prisoner who has his basic bodily functionssleep, nutrition, movementinterfered with, theordinary Palestinian, too, is restricted. The chain of the occupation may afford a little more slack but itsgoal equally is to constrict and confine.

Just as Israel spurns calls for the prosecution of those who torture Palestinian detainees, so, too, itrejects calls for an end to the occupationa real end that will lead to political parity and justice for Palestinians in the same political space as their oppressors. Israels legal and political ethos is impervious


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to critique regarding Israels treatment of the Palestinian collective; Israel resists justice and scorns someof the most essential concepts of democracy. Like its individual counterpart victimised in theinterrogation chamber, the Palestinian collective is left standing, unendingly and increasingly painfully inline 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 hasmanifested itself over more than forty years, is beneath contempt and utterly without justification. TheIsraeli conquest of the Palestinian territories has outlived even the remotest of justifications for itsexistence. Its perpetuation has opened that conquest up to the criticism of having gone beyondoccupation to annexation, expropriation, colonisation and even a form of political slavery. For thisreason, the occupation does not represent a state of war to which a peace process would be theultimate 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 peacei.e., for anend to the abomination of sending Israeli children to kill and be killedshould be scorned as egocentricor self-centred. Such calls, even when lacking ideological maturity, should be welcomed, embraced andtransformed, 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 struggleagainst a regime that denies power, equality, freedom, rights and sovereignty to its subjects. The Israelioccupation 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 IsraelLabour, Likud, Kadimaand each branch of government, too, has

played an essential role in perpetuating the occupation, to the point where conventionally held viewsregarding 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 perspectiveone incorporating legal, social, ideological, developmental, gender and human-security considerationsinto its efforts. It is clear that torture in Israel continues and that securityconcerns simply veil the ulterior motives for its use; likewise, the occupation is a veiled attempt toexpand territory for the benefit of Israeli Jews at the expense of Palestinians. It is therefore apparent thatthe 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 aconscientisation, a type of learning which includes taking action against oppressive elements in onesown 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 ademocracy, 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 seethat their power-base is limited and founded on myths that offer no security and no democracy, not tomembers 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


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that we in the human-rights NGO community do is a prime example of praxis, action that is informed, andlinked 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-rightsviolation 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 nottorture, but is nevertheless excessive and grotesque. Both torture and the Israeli occupation are illegaland 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 asoccupation 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 comewith it, the violations follow from the logic of occupation. It is possible to expose and combatandeven minimizehuman rights violations, but you cant end them entirely without ending the

occupation.10

E NDNOTES

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 theOppressor, Tikkun , November/December 2002. 10. Audrey Bomse, Torture and the Occupation, Guild Practitioner 63, no. 4 (fall 2006), p. 208.


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