Israeli medics collude with the torture of Palestinians; indict them

Palestinian Arafat Jaradat was 30 years old when he died in his cell at Megiddo Prison on 23 February, 2013, after five days of torture by the Israeli authorities.

Raed Al-Jabari was 35 when he died in Eshel Prison in September 2014, from a severe blow to the head; Israeli officials deemed it to be “suicide”.

Jaafar Awad was 22 when he died in April 2015, two months after his release from an Israeli prison where he was administered inappropriate treatment for his diabetes. His health deteriorated rapidly yet he was refused treatment by Israeli medical authorities on numerous occasions, and finally succumbed to the cumulative medical neglect on 10 April.

These deaths are but the most public three of the 206 prisoners known to have died in Israeli custody since 1967 and the unknown number who have died soon after their release.

In response to the massive public pressure following the Israeli pathologist’s “whitewash” of Jaradat’s death in 2013, Palestinian Authority Civil Affairs Minister Hussein Al-Sheikh announced that an independent foreign doctor would investigate the circumstances of his demise. Dr Sebnem Korur Fincanci’s findings were damning. The renowned Turkish pathologist reported that Jaradat’s injuries were indicative of “blunt trauma with a long and thick object” and they were not consistent with the official Israeli line of “resuscitation efforts”.

Her report was buried, along with the hundreds of Palestinian prisoners killed before its release, and those who will continue to die in custody if the systemic issues, of which Jaradat, Al-Jabari and Awad are but the most recent manifestations, are not addressed. At the very least, the perpetrators and those colluding with them must be brought to account.

Torture not the only issue

It should need no repeating that torture is specifically prohibited in international law by means of the Convention Against Torture (CAT), as well as Article 7 of the International Covenant of Civil and Political Rights (ICCPR), and that there is no derogation possible from this prohibition; torture is never acceptable in international law, under any circumstances. The prohibition on torture is absolute, regardless of any domestic Israeli law that “permits” it through “necessity”.

As other deaths following the Jaradat experience show, a limited investigation by a foreign doctor cannot, and will not, address the larger legal and humanitarian issues facing the thousands of Palestinians who languish in Israeli jails. These issues include arbitrary detention and lack of due process; torture and other degrading and inhumane interrogation techniques; and conditions of confinement that fail to meet minimal international standards, such as dietary adequacy, quality of health care, family visits, and other humanitarian concerns. All require exposure to international scrutiny and relevant action where they fall short of international laws and conventions.

Medical aspects

The particular circumstances of Jaradat’s death provide a chilling illustration of some of the shortcomings in the medical treatment available – or more accurately, not available – to Palestinian prisoners. Israeli website Ynetnews.com reported on 24 February that according to Shin Bet, “…during interrogation, he was examined several times by a doctor who detected no health problems.”

Important questions arise in relation to the medical treatment provided in Jaradat’s last six days of life, many of which are relevant to every Palestinian prisoner:

• When and where was Jaradat seen by medical personnel during his entire time in Israeli custody?
• By whom was the treatment provided, and what were the medical qualifications of the personnel involved?
• Was the full physical and psychological examination of Jaradat as ordered by the Israeli military judge on Thursday 21 February actually carried out?
• What was the nature of all diagnostic procedures and tests performed, and their results?
• What treatment plans were prepared?
• To whom were the results of all examinations, procedures and tests, and treatment plans, communicated, and in what form?
• In particular, were any results presented to the Israeli Security Agency (ISA) and the court, as required by the judge?
• If the full physical and psychological examinations ordered by the judge were not carried out, why not?
• When, where and what medical treatment did Jaradat receive while in custody, in accordance with the outcome of examinations, diagnostic procedures and tests, and treatment plans, as identified above?
• By whom was such treatment provided, including resuscitation attempts?
• Given that Arafat Jaradat died while in Israeli custody, and according to the autopsy report following severe torture, a finding as to whether Israeli medical personnel and the Israeli prison services fulfilled their obligations to the patient Arafat Jaradat, in accordance with the professional standards reasonably expected of them by the public and their peers, is essential.
• Disciplinary action is required by the Israeli judicial authorities against anyone found to have contributed to Jaradat’s death, through medical or other negligence.
• Disciplinary action is also required by Israeli or international medical authorities against anyone found to have contributed to Jaradat’s death through medical or other negligence.
• It is vital for the identification and implementation of adequate systems to ensure that such an event does not recur in Israeli jails.
• These questions go to the very heart of professional medical practice, as well as humanitarian law, and must be answered, not only in relation to Jaradat’s death, but also that of every prisoner to die in Israeli custody or following their release.

Relation to human rights

The UN Human Rights Committee has stated specifically that the right to health of detainees comes under the right to humane treatment in the ICCPR¹, and the related provision against torture (Article 7) has also been used by the Human Rights Committee to address questions of prison medical care.²

“Appropriate and timely medical care must be available to all detainees,” it said in 2003.³

The most cursory review of applications to the United Nations Human Rights Committee (UNHRC, elevated to the stature of the United Nations Human Rights Council in 2006) shows that when medical services have been found to constitute cruel, inhuman or degrading treatment, they have generally occurred in a situation following beatings or torture. For example, in several cases against Uruguay in the 1980s, the UNHRC cited physical abuse or torture, as well as the failure of prison authorities to provide subsequent medical assistance, when making findings of violations of the ICCPR.⁴

Other jurisdictions than the UN have made similar citations: all of the African Commission cases in which denial of medical care was cited in a finding of cruel, inhuman or degrading treatment occurred in the context of physical abuse or beatings of persons in detention⁵, as did many of those of the Inter-American Court of Human Rights, where ”very deficient”⁶ or ”inadequate or unresponsive”⁷ medical attention, along with deliberate physical abuse, was cited as contributing to a finding of cruel, inhuman or degrading treatment.

In addition to the torture cases, the other category of applications that generally cite inadequate medical care are those in which health services are but one of a list of prison conditions that are assessed cumulatively to constitute inhumane or degrading treatment;⁸ that is precisely the situation of Palestinian detainees and why one doctor looking only at the circumstances of Jaradat’s death is a pitifully inadequate response.

List of prison conditions

To the 200+ deaths must be added the 750+ complaints of torture and ill-treatment made since 2001 against the Israeli Security Agency (ISA). None has resulted in a criminal investigation, according to the Palestinian Human Rights Organisations Council (PHROC), Adalah Public Committee Against Torture in Israel, and Physicians for Human Rights-Israel.⁹

Now add the thousands since 1948 who have been “administratively detained” without charge, without being presented with the evidence against them, and without ever being given the opportunity to defend themselves in a fair and impartial trial; their detention is extended time and time again, or they are released only to be re-detained immediately. And add the 10,000 women who have been detained since 1948; the 2,000+ 16-18 year olds detained in 2012 alone, and the 300+ 14-16 year olds.

Next, consider those thrown into solitary confinement for years on end – over twelve years in some cases – for no justifiable reason. Witness today Dirar Abu Sisi, Gaza’s power plant director and engineer, abducted from a train in the Ukraine, “rendered” to Israel in a coffin in contravention of international law and any minimal standard of human decency, and held for over two years in solitary confinement, such that his ability to use language all but disappeared.

Throw rotten food into the mix, no access to work, limited access to educational and recreational opportunities, exposure to extremes of temperature without appropriate clothing and bedding, little or no opportunity to access items from the canteen, and the withholding of family visits for seven years and more (and when they do occur, the subjection of family members to humiliating strip-searches and fore-shortened visits). Then top it off with regular night raids on cells accompanied by physical and verbal assaults, strip-searches, the setting of dogs onto detainees, and the arbitrary confiscation of personal belongings. It is a toxic situation.

Most of these issues formed part of the deal made between Israeli prisons authorities and the Higher Committee for Detainees to end the 2012 mass hunger strike, a deal which Israel reneged on immediately, and which it continues to breach and scorn. Many of those released are already back behind bars.

Calls for international intervention

There was a litany of calls for an independent investigation into the circumstances of Arafat Jaradat’s death, with some including the conditions of Palestinian detainees in Israeli jails, and/or the manner of their detention.

Robert Serry, UN Special Coordinator for the Middle East Peace Process, said after the release of the Jaradat autopsy results, “The United Nations expects the autopsy to be followed by an independent and transparent investigation into the circumstances of Mr Jaradat’s death, the results of which should be made public as soon as possible.”¹⁰

The same statement also addressed one of “the list” items: “… those held in administrative detention without charge should be charged and face trial with judicial guarantees in accordance with international standards, or promptly released.”

Some 14 Palestinian human rights groups demanded attention to “the list”¹¹ while the Non-Aligned Movement of the UN Security Council also called for an “independent and impartial investigation” and “full respect of international human rights and humanitarian law obligations towards all Palestinian prisoners and detainees being held by Israel.” However, its attempt to obtain a clear statement from the Security Council on the rights of Palestinian detainees was blocked by the United States.¹²

Every death since has met with similar demands and a similar result; nothing.

Israeli impunity

Whilst Israel has ratified the main human rights conventions, it is not a party to any of the Optional Protocols other than Children in Armed Conflicts. Nor has it accepted the jurisdiction of any of the treaty body committees, which means that relevant committees cannot receive or act on complaints or claims against Israel.

Even where Israel has ratified conventions, it has made important reservations, rendering itself virtually immune from almost any action against it. For example, in relation to the Geneva Convention, Israel is a party to the 1949 Geneva Conventions, but not to the first and second 1977 Additional Protocols. As the Rule of Law in Armed Conflicts (RULAC) project points out:

“Although Israel has signed the 1998 Rome Statute, on 28 August 2002 the Secretary-General received from the Government of Israel, the following communication: ‘…in connection with the Rome Statute of the International Criminal Court adopted on 17 July 1998, […] Israel does not intend to become a party to the treaty. Accordingly, Israel has no legal obligations arising from its signature on 31 December 2000. Israel requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.'”¹³

RULAC also notes that Israel has declared a domestic State of Emergency since 1948. A notification under Article 4(3) of the ICCPR (Derogations) was made on 3 October 1991, after the ratification of the Convention, in which Israel derogates from its obligations under Article 9 of the ICCPR; in other words, it removed itself from the application of Article 9.

In relation to the Convention Against Torture, Israel made two reservations: first, that it does not recognise the competence of the Committee provided for in Article 20, which would enable the UN Committee to examine “well-founded indications that torture is being systematically practised in the territory of a State Party” and to “designate one or more of its members to make a confidential inquiry and to report to the Committee urgently”. Secondly, it does not consider itself bound by paragraph 1 of Article 30, which would require it to submit to arbitration, and if agreement was not forthcoming, for the dispute to be referred to the International Criminal Court (ICC).¹⁴

This leaves only the ICCPR as an avenue of recourse within the UN system, but Israel has not signed the First Optional Protocol; thus, complaints against Israel cannot be received by the Committee. So how can Israel be permitted to continue its membership of an organisation from which it demands all the benefits of membership, while ignoring or avoiding the accompanying obligations and responsibilities towards others, particularly the Palestinians? One need not look further than the United States, and its power of veto.

Which leaves only “universal jurisdiction”, the principle in international law under which any state is allowed or required to bring criminal proceedings in respect of certain crimes, such as torture, irrespective of where the crime was committed or the nationality of the perpetrator or victim. When will European, American, Asian, African and Latin American countries start prosecuting the Israeli judicial authorities if they step foot in their country? And the Israeli prison “doctors” and other medical personnel when they attend conferences or holiday outside of Israel?

Will independent international investigations achieve anything?

We must ensure that the circumstances of these cumulative deaths of Palestinian prisoners in Israeli jails are exposed continually to the international community, and hope that one will finally serve as a catalyst. This happened with the death of Steve Biko in 1977 whilst in South African police custody, which alerted the world to the atrocities being committed by the apartheid government, leading ultimately to its downfall.

The rogue state of Israel is equally in need of the disapprobation and condemnation of the international community for its chronic and extreme abuses of Palestinians and detainees; for its daily practices of torture; its cruel, inhuman and degrading treatment of Palestinian detainees and their families; and for its blatant disregard of international laws and norms and even the minimal standards of civilised behaviour and professional medical standards.

The Israeli health professionals colluding in the torture and maltreatment of Palestinian prisoners should take their place in the dock of the ICC alongside their war-criminal brothers. At worst they should most certainly be held to account by national and international bodies charged with upholding the standards of the medical profession. When will the first Israeli health practitioner be held to account?

Notes

1. Cabal and Pasini v. Australia (7 August 2003) UN Doc CCPR/C/78/D/1020/2002) para. 7.7.
2. Womah Mukong v. Cameroon (Communication No. 458/1991) UN Doc CCPR/C/51/D/458/1991.
3. UN Doc CCPR/CO/78/PRT (5 July 2003) para 11.
4. Setelich/Sendic v. Uruguay (28 October 1981) UN Doc A/37/40 para 20. See also Vasilskis v. Uruguay (31March 1983) UN Doc A/38/40; Viana v. Uruguay (29 March 1984) UN Doc A/39/40.
5. Constitutional Rights Project and Civil Liberties Organisation v. Nigeria (1999) African Commission on Human and Peoples’ Rights Comm Nos 143/95, 150/96 para 5; Krishna Achuthan (On behalf of Aleke Banda), Amnesty International (On behalf of Orton and Vera Chirwa), Amnesty International (On behalf of Orton and Vera Chirwa v. Malawi (1994) African Commission on Human and Peoples’ Rights Comm Nos. 64/92, 68/92, 78/92 para 7.
6. Cantoral Benavides Case (Judgment) Inter-America Court of Human Rights Ser C No. 69 (18 August 2000) para 85.
7. Caesar v. Trinidad and Tobago (Judgment) Inter-American Court of Human Rights Ser. C (11 March 2005) para 50.
8. Lines, R The Right to Health of Prisoners in International Human Rights Law International Journal of Prisoner Health, March 2008; 4(1): p20
9. Al-Haq
10. UN
11. See note [9]
12. Al Ray
13. Geneva Academy
14. CAT Article 20 (1) and (2)

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.