The Israeli Supreme Court has been accused of redefining torture so as to permit it after a major new ruling was greeted with dismay by local and international human rights groups.
Last week the court – sitting as the High Court of Justice – denied a petition brought by The Public Committee Against Torture in Israel (PCATI) on behalf of Palestinian prisoner Asad Abu Ghosh.
According to the petition, Abu Ghosh was tortured with "severe mental and physical violence" during a Shin Bet interrogation in 2007, including "beatings, being thrown against a wall, stress positions including the 'banana' position, sleep deprivation, and extreme mental duress".
The High Court was presented with high-level and independent legal-medical opinions confirming the physical and mental damage caused to Abu Ghosh at the hands of his interrogators.
While allegations of torture by Shin Bet agents are commonplace, impunity is the norm; more than 1,000 complaints filed since 2001 did not produce a single criminal investigation. What made this case unusual, however, was that the state admitted "certain pressure methods" had been used.
Despite this, and the evidence presented by PCATI, the High Court still threw out the petition, accepting an earlier decision of the Attorney General not to open a criminal investigation against the interrogators, and thus granting the agents impunity for their actions.
For PCATI, how the court reached its decision is as disturbing as the verdict itself – and one paragraph in particular stands out. "The definition of certain interrogation methods as 'torture' is dependent on concrete circumstances," wrote Judge Uri Shoham, "even when these are methods recognised explicitly in international law as 'torture' [my emphasis]".
The High Court's decision is being described by some as the most important legal development for interrogations and torture in some two decades; as a report in The Jerusalem Post put it, "essentially, the court took the state's side on all of the key issues before it".
In 1999, the High Court ruled that Shin Bet agents could not use "physical means" in their interrogations. However, the justices also held that agents who used such methods could be immune from criminal responsibility in the case of a "ticking bomb" scenario.
Unsurprisingly, since then Palestinians have continued to be tortured by Shin Bet interrogators relying on the "ticking bomb" exception – but as Israeli NGO B'Tselem put it, such methods "were not limited to exceptional cases and quickly became standard interrogation policy".
This state of affairs has been widely documented, including by the UN Committee Against Torture in May 2016, by interrogators themselves, and in studies like the one published by the 'Reproductive Health Matters' medical journal in 2015, which found that "Israeli authorities are systemically involved with torture and ill-treatment of a sexual nature".
As Israeli legal affairs analyst Yonah Jeremy Bob noted recently, Israel's Supreme Court was "unique" in having established "a category of 'moderate physical pressure' that could legally be used on [prisoners]". He added: "No democratic country in the present era has defended the legality of such methods or established normative legal principles relating to them quite like Israel."
Now, this latest High Court decision leaves Palestinian prisoners even more vulnerable to abuse. According to PCATI, the ruling "permits de facto use of torture methods", including even those forbidden in the High Court's 1999 judgement, and also "blocks the way for victims who have suffered from physical and psychological trauma to seek redress".
For Amnesty International, whose 2016/17 annual report found that Israeli forces and Shin Bet agents "subjected Palestinian detainees, including children, to torture and other ill-treatment with impunity", the Supreme Court decision is troubling.
"We have serious concerns that in taking this decision the Court dismisses, yet again, credible and relevant evidence of systematic torture of Palestinian detainees", said Magdalena Mughrabi, Amnesty's Deputy Director for the Middle East and North Africa.
In doing so, she added, the court is "sending another green light" to Shin Bet interrogators "that it is acceptable to use methods of coercion, including the combined use of stress positions, beatings and sleep deprivation that amount to torture against Palestinian detainees".
For Dawoud Yusef, head of the Advocacy and Lobbying unit at Palestinian prisoners' rights group Addameer, "there is very little surprise in regard to the ruling in the case of Abu Ghosh".
"Not only did the original case in 1999 leave the definitions for 'moderate physical pressure' and a 'ticking bomb' situation open", he said, "it also gave the authorities a license to torture".
Nonetheless, Yusef continued, the new ruling "represents a key legal addition to the 1999 case", by fleshing out some of the details of what had previously only been implicit definitions.
"From the [Abu Ghosh] case, a ticking bomb situation does not have to mean that an attack is imminent or that the person in question has the direct information to prevent such a situation. Secondly, the case categorises the banana position, pressure on his fingers, and a beating as simply being 'moderate physical pressure'."
Thus, Yusef asked, "the question now is: what will the Israeli state actually consider as torture, and how low can the bar go regarding a 'ticking time bomb' situation?"
The Supreme Court's dismissal of PCATI's petition joins a long list of examples where Israeli judges have declined to strike down legislation and policies which violate international law.
Addressing the Abu Ghosh ruling, a spokesperson for B'Tselem said that "vital to Israel's ability to act with impunity is the Supreme Court routine of granting a veneer of legality to almost all violations of Palestinian human rights, and in this case, a particularly grave one".
For PCATI, at the core of this new ruling is "a refusal… to admit that certain methods, which are recognised internationally as torture, are indeed torture in Israel as well". While this may ultimately "put the court on a collision course with the International Criminal Court", in the meantime, as PCATI noted, the "torturers" of Palestinian prisoners will continue to enjoy "absolute impunity".
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.