Op-ed: Palestinians Will Continue to Eat the Fruit of the Poisonous Tree

By Fady Khoury and Nadeem Shehadeh

A recent amendment submitted to the Knesset by Israeli Justice Minister Ayelet Shaked ostensibly represents an important and progressive piece of legislation for human rights in Israel. The “Law of the Fruit of the Poisonous Tree” stipulates that any confessions by prisoners and detainees that were obtained during interrogation using illegal means will not be admissible as evidence in court. The bill states that “the conviction of a person through no fault of his own, and particularly one which carries a grave penalty, is one of the worst evils that a state can bring upon its citizens.” These are, indeed, important statements.

However, the proposed amendment and the principles described in its clauses do not offer any remedy to the victims of the harshest methods Israel uses to elicit confessions during interrogation: namely, Palestinian detainees who are suspected of committing security offenses (“security detainees”), and who are thus subjected to torture.

In recent years, the Knesset has created a normative framework that imposes a complete blackout over the proceedings carried out by security agencies in interrogation rooms. Under the current legal conditions, security detainees have almost no course of action or redress against confessions that are elicited using illegal interrogation methods, namely torture.

In July 2015, the Knesset extended (for the third time) the temporary order that exempts the security agencies from producing audio or visual documentation of interrogations of security detainees. This is contrary to the recommendations of the Turkel Commission, which examined Israel’s actions during the “Mavi Marmara flotilla” events of 2010, and which recommended that the interrogations carried out by the General Security Service (GSS or Shabak) be fully subject to audio-visual documentation. The order also runs contrary to the recommendations of several United Nations committees, which have repeatedly called for the order to be repealed.

In 2013, the Israeli Supreme Court dismissed a petition against the exemption, after the state committed to examine alternative arrangements before extending the temporary order once more. These alternatives were never considered seriously by the state, particularly in light of an alternative proposal considered at the time (albeit not adopted) that sought to transform the temporary order into a permanent law. Adalah, the Association for Civil Rights in Israel (ACRI), and other organizations recently submitted an additional petition against this new amendment.

The obligation to produce audio-video documentation of interrogations was established by law in 2002 for cases of grave offenses in which there is concern that the investigation authorities will be prompted to elicit confessions at any cost. However, the Knesset added an exemption to this requirement in the case of security detainees, despite the fact that they involve the gravest offenses from the state’s point of view, i.e. cases in which interrogators are highly pressed and motivated to make detainees confess.

The significance of this is that the only documentation that exists of these interrogations is written and edited by the interrogators themselves, and usually in Hebrew, even though the majority of these security detainees are primarily Palestinians. The exemption thus allows the interrogating authorities to use illegal methods, including torture, in order to extract confessions from suspects in a manner that increases the likelihood of false confessions and, consequently, of false convictions.

The exemption from documenting interrogations of security detainees is only one element in a wider, normative system that creates a fertile ground for the security agencies to employ illegal methods in the interrogation room. It joins a list of other special legal provisions that apply to security detainees, the sole purpose of which is to isolate the suspects from the outside world during their interrogation and leave them to the mercy of their interrogators.

For example, the law allows the interrogating authorities to prevent security detainees from meeting with their attorneys for 21 days, and permits holding hearings for custody extension in their absence. All this occurs, of course, while the suspects are kept in solitary confinement. Consequently, suspects do not come into contact with anyone other than their interrogators, and there are no external actors, be it an attorney or a court, which can monitor the proceedings in the interrogation rooms.

While incommunicado detention and extensions of detention are designed to isolate the suspect and ensure a blackout over the interrogation as they are happening, the audio-video exemption is intended to obstruct any possibility of retroactively proving that illegal means were used by the interrogators. This, in turn, is intended to prevent the exclusion of any evidence that was obtained using illegal methods, and to prevent the conduct of the interrogators from being brought to the attention of the court and the general public.

Israeli law thus creates an entire mechanism that makes the torture of suspects highly possible for the purpose of eliciting confessions from them. Some of its components can be found in the system of temporary orders that categorically violate the rights of suspects and stand in stark contradiction to the fundamental principles of criminal law that aim, inter alia, to realize the overarching purpose of discovering the truth.

Thus, while the state is now promoting a new law that is meant to protect suspects from the consequences of interrogations that were conducted illegally, it in fact continues to make it possible to conduct this type of interrogation against a particular group of detainees – primarily Palestinians – who are suspected of particular crimes.

The writers are attorneys working at Adalah – the Legal Center for Arab Minority Rights in Israel, which jointly submitted the petition against the audio-video exemption for security agencies. This article was originally published in Ynet News in Hebrew.