During the question-and-answer period of his recent speech on “Antisemitic Hate Speech” at Yale University, Harvard Law professor Alan Dershowitz asserted, once again, that torture has been abolished in Israel and that, at the most, Israel engages in practices that he would label as “extreme interrogation.” Furthermore, he led the audience to believe that the Public Committee Against Torture in Israel (PCATI), “knows” that torture “connotes” the worst forms of violence that were practiced by regimes such as the Nazis, the Soviets under Stalin or Iraq under Saddam Hussein, yet PCATI uses the word only as a public relations tactic.
His statement can be heard online, but his remarks degrade the absolute prohibition against torture and cruel, inhuman and degrading treatment or punishment enshrined in the United Nations Convention Against Torture and other international human rights and humanitarian law instruments.
Furthermore, assertions such as his, serve to contaminate legal discourse with biased advocacy that attempts to draw attention away from the core issue, the charge of Israel’s continued use of torture, by discrediting the witness. Yet his polemics cannot be allowed to obfuscate the well documented truth of Israel’s use of torture. (See PCATI’s recent report, “Ticking Bombs” Testimonies of Torture Victims in Israel.)
Many people, including Professor Dershowitz, continue to misunderstand the 1999 Israeli Supreme Court Decision in Public Committee Against Torture v. Israel as having “abolished” torture in Israel. Although the judgment resulted in a significant reduction of violence against the interrogated individuals it did not categorically abolish torture. The Court ruled against several physical interrogation methods in use at that time by the security forces, which were euphemistically labeled “moderate physical pressure” by Israel. The Court allowed for the necessity defense in the case of “ticking bombs.”
The State consistently abuses the spirit if not the law of judgment, which Anthony Lewis hailed as a “light unto the nations.” Detainees continue to be illegally abused during interrogation, denied access to attorneys and proper medical care, Hundreds of complaints have been served since the Court’s judgment only to be “investigated” by an active security agent and systematically closed by the State Attorney’s office. One may choose to believe that torture has been “abolished in Israel” but it continues, with impunity.
The core problem goes beyond the use of torture. States that torture follow the Israeli and US example of using torture without using the word “torture.” They employ euphemisms or construct absurd definitions of torture that allow them to disingenuously claim that they do not torture. Anyone who constructs a linguistic fence around the violence utilized by outlaw regimes should note that the Nazis also championed euphemisms when describing their interrogations of resistance fighters. In an article for the Times UK, Andrew Sullivan recently wrote, “enhanced or intensified interrogation, was the exact term innovated by the Gestapo to describe what became known as the ‘third degree’. It left no marks. It included hypothermia, stress positions and long-time sleep deprivation.” Professor Dershowitz uses the term “extreme interrogation” as his euphemism of choice.
By employing the term, Professor Dershowitz is displaying a common misunderstanding of what constitutes torture. The U.N. Special Rapporteur on Torture, Professor Manfred Nowak has made it clear that the absolute prohibition against torture (and cruel treatment) comes into force when violence is used against a person in custody. That is, the infliction of any physical or psychological pain, as a tool, against a detainee constitutes torture or cruel treatment and is absolutely prohibited.
Professor Dershowitz and other academics have employed various exercises in legal gymnastics in order to allow torture without violating the prohibition or to use it but control it. He champions the torture warrant, paradoxically, as a method for reducing torture. His claimed opposition to torture may be genuine, although he chooses a strange way to demonstrate it. Torture is best prevented by the actions of civil society organizations, human rights education, holding torturers accountable, supporting monitoring mechanisms, such as those in the Optional Protocol to the U.N. Convention Against Torture and by working against the involvement of lawyers, physicians and psychologists in torture.
Louis Frankenthaler is the director of Development and Education for the Public Committee Against Torture in Israel.