Curtailing Human Rights on the Moon: Facility 1391

By
Nimba County Prison Inmates, Liberia
Curtailing Human Rights on the Moon: Facility 1391 - Hannes Opelz

Abstract

For several years now, Israel has been running a secret detention center, known as "Facility 1391", where a number of detainees have been held in unclear circumstances. After the NGO HaMoked filed a number of petitions regarding the enforced disappearance of Palestinians, the State Attorney's Office had to recognize the existence of the secret prison before the Supreme Court of Israel. This study presents the known facts about the covert detention site and attempts to show, in light of both international and domestic law, how the conditions of incarceration and the interrogation methods used by the General Security Service at Camp 1391 constitute grave violations of human rights.

Introduction

E vegno in parte ove non e che luca.

Inferno, IV, 151

"I kept asking them where I was," said Bashar Jadala. "The soldiers told me that I was on the moon, and that no one knew where I was ... Sometimes they would tell me I was in space". As for Raab Bader, the reply was much the same: "One interrogator said a submarine, and many times the answer was that we were in space or outside the borders of Israel". When Sameer Jadala asked where he was, someone told him: "In Honolulu". The moon, a submarine, a no-man's-land, indeed, beyond all boundaries, into space. Or perhaps even some exotic island, as exotic, one might say, as Guantanamo Bay.

These metaphors of utter isolation and seclusion all point to a special place of detention in the heart of Israel. It is called Facility 1391; much less a name than a mere number enclosed in concrete walls. In­deed, names and those to whom they belong disappear behind the ram­part of secrecy that surrounds Israel's covert detention site. Camp 1391 does not exist, or at least it has been removed from maps, from roadside signposts and from aerial photographs. Camp 1391 does not exist, or at least it did not officially before the State Attorney's Office had to recog­nize, after a number of petitions on the disappearance of Palestinians had been filed by the NGO HaMoked in Jerusalem and conferred upon Israel's Supreme Court, that "Facility 1391 is located within a secret army base that defense officials use for various classified needs"1.

In the following study, I will attempt to explain, first by looking at the known facts about Facility 1391 and then by examining the numerous violations of human rights at Israel's secret prison in light of both inter­national legal instruments, domestic laws and other relevant non-binding documents, that the prevention of human rights violations is served by the prohibition of prolonged incommunicado detention and the abolition of secret detention sites.

The Known Facts About Facility 1391

The three Palestinians mentioned above, Raab Bader and Bashar and Sameer Jadala, and a number of other Palestinians, all of whom were imprisoned at Facility 1391 in 2002, are in fact the second generation of detainees to be deprived of their liberty at Israel's secret prison. Accord­ing to the State Attorney's Office "the detention facility does not serve as a detention facility in the conventional sense, but is intended, as a rule, for special cases, and for detainees who are not residents of the [occu­pied] territories"2. In effect, the "special cases" were Iraqi defectors, Syrian intelligence officers and Lebanese who were suspected of mem­bership in Hezbollah. Some of those detained had been previously ab­ducted at Israel's initiative and directly transferred to Camp 1391, such as Sheikh Abd al-Karim Obeid (a spiritual leader to Hezbollah) and Mustafa Dirani (security chief of the Shi'ite movement Amal), seized in 1989 and 1994 respectively. The aforesaid Lebanese were held as "bargaining chips" for the missing Israeli air force navigator Ron Arad. The practice of abduction was conducted in particular during the Israel Defense Forces' 18-year presence in Lebanon, when intelligence agencies were especially active across Israel's northern border.

We now know that Camp 1391 has been operating since at least two decades and is an Israel Defense Forces (IDF) facility located in the center of a military base that belongs to one of the secret units of the Intelligence Corps (Unit 504). It was only later, after the start of the second intifada, that, "as the result of the shortage of detention sites," claimed the State Attorney's Office, "[the] facility was used, temporarily, by the General Security Service [GSS], and [that] detainees who resided in the territories were held there [and] interrogated"3• In addition, the State Attorney's Office submitted to the Supreme Court an important document, according to which then defense minister Binyamin Ben­Eliezer signed, on April 16, 2002, an order declaring facility 1391 "a military prison"4.

When asked why the prison is kept secret and for what particular purpose individuals are imprisoned there, the State Attorney's Office's response was; "reasons of state security"5. Before analyzing the conse­quences of the Israeli secret detention place on human rights and its lawfulness in both the international and domestic legal contexts, we shall briefly explore how prisoners are treated at Facility 1391, paying special attention to the conditions of their incarceration and the interrogation methods by the GSS. Due to a number of affidavits given by persons who were detained at the secret facility\ the possible details of Israel's covert detention site have gradually been exposed. As the following information springs from witness accounts, a certain amount of exaggeration or unreliability should not be discounted. However, as the testimonies of many of the detainees show a remarkable congruence, I believe it is possible to infer the details of some of the procedures in Facility 1391. My account of the facts below reflects various relevant documents filed by the Supreme Court of Israel (essentially comprising petitions by HaMoked and responses to them by Israel's State Attorney's Office representing Israel Defense Forces), as well as Aviv Lavie's study "Inside Israel's secret prison" in Haaretz Magazine (22 August 2003), Chris McGreal's account "Facility 1391: Israel's secret prison" in The Guardian (14 November 2003) and Jonathan Cook's article "Is 'Facility 1391' Israel's version of Guantanamo Bay?" in The Daily Star (15 November 2003).

At the time of arrest, the detainees' hands are bound (some testify that their legs are shackled), their heads are covered with an opaque sack, on which dark sunglasses are placed, and they are thrown onto the floor of an army vehicle, while a thick blanket is placed over their bodies. The detainees are then led into the facility blindfolded to prevent them from knowing where they are; when they ask the incarcerators about their whereabouts, they are usually told: "on the moon", "in a submarine", "in a grave", "outside of Israel'', "in space", "on another planet", etc. Al­though they are given pants and a shirt (usually of disproportionate size) upon arrival at the facility, the detainees are often naked during interro­gations.

The cells are about 2 x 2 meters in size (though some measure 1.25 x i.25) and made entirely of concrete on the inside. The walls are painted black and there are no windows or any source of external light, except for a narrow slit in the metal door of the cell. A concrete platform serves as a bed, with a damp mattress and blanket. On the wall is an orifice, a kind of pipe through which water flows, the tap of which is controlled by soldiers outside the cell. Below the water source is a hole in the floor, which the detainees use to relieve themselves. However, in some cells, especially those used for detainees under interrogation, there is no place to go to the toilet; the prisoners have to use a large plastic bucket, which is emp­tied once every few days. In addition to the general filth and stench in the cells, the majority of the detainees report much abuse relating to show­ers?.

There are ventilation openings in the upper part of the cells, but the main testimony to their existence is the noise they make when they are turned on. A lamp casts a dim light 24 hours a day; the detainees have no way to tell night from day. In addition, a number of detainees testify that they are often deprived of sleep, either because of excessively long inter­rogations or by the pounding on the cells' doors by soldiers day and night. As for food, soldiers bring a dish three times a day, often placing it on the toilet can. The procedure is that before the soldier enters, he knocks at the door, at which point the prisoner must place a black sack on his head and turn around with his hands raised. Contact with jailers is generally kept at a minimum and the prisoners, as a rule, are prohibited to communicate with others8.

As for the methods of interrogation, they vary from one detainee to another. The most shocking account is perhaps that of Mustafa Dirani. Upon arriving at the said detention site, Dirani, who had already been interrogated immediately after his abduction in the vehicle bringing him to the camp, was put into a cell, after which an interrogation followed that lasted for the next five weeks. Among the chief interrogators were the commander of Unit 504 and a major who introduced himself as George. According to Dirani, during the interrogation, the latter called in four of the soldiers who were doing guard duty in the facility and one of them allegedly raped Dirani at George's orders9. In another instance, Dirani said in an affidavit that George himself had inserted a wooden stick in his rectum. Reports by journalists who interviewed the detainees suggest that sexual abuse or threat of sexual abuse was repeatedly used at the detention site. In her investigative report "Inside Israel's secret prison'', Aviv Lavie recounts the testimony given by an interrogator at the facility (pseudonymed T.N.) which confirmed George's customary practice consisting in threatening the detainee with rape. "The inten­tion," reported T.N., "was that the stick would be inserted if the subject did not talk"10.

Affidavits put together by HaMoked also mention other methods of physical mistreatment during interrogations, such as punches to the face, violent shaking and sitting in the "shabah" position (i.e. sleep deprivation combined with position abuse, whereby the detainee is kept sitting or standing in a painful position). Furthermore, some methods used by interrogators involved threats to the relatives of the prisoners. For example, one detainee was told that his son would stay in the worst stench-filled cell if he did not confess. Another was told that his wife and mother were arrested. Still another internee of Camp 1391 testifies that they brought a picture of his father in prison clothes and threatened to imprison and torture him, while also making threats relating to his brother and uncle11.

Finally, the detention period at Facility 1391 is indefinite. Some detainees were held for days (such as Raab Bader), some for months (such as Sameer Jadala) and some for years (such as Sheikh Obeid and Mustafa Dirani).

The Rights Infringed at Facility 1391

FREEDOM FROM TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

"Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule". Thus are the words of General Comment 21(4) of the Human Rights Committee in 1992. It will generally be agreed that one of the most (if not the most) fundamental freedoms, no matter where we are, is the freedom from torture and other cruel, inhuman or degrading treatment or punishment. Indeed, this is not only made clear, as early as 1948, by article 5 of the Universal Declaration of Human Rights but also by article 7 of International Covenant on Civil and Political Rights (ICCPR) which underlines that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".

Before Israel signed and ratified this Covenant in 1992, it had also become a party, in 1991, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) adopted in 1984, which not only called for the protection against torture but also the prevention of torture, as stipulated in article 2(1) of the convention: "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction" (my italics). That is, no matter the location of Facility 1391, Israel is liable to prevent torture in all territories under its jurisdiction12• To be sure, the secrecy of the military base where the detention place is located and the so-called "classified needs" do not in any way allow for any form of torture to occur; this is implied by article 2 of CAT which states that "no exceptional circumstances whatsoever, whether a state of war or a threat, internal political instability or any other public emer­gency, may be invoked as a justification of torture".

In the case of Facility 1391, there is no doubt that, should the allega­tions be true, the sexual abuse or threat of such abuse, the brutal shaking and other forms of beatings, as well as the painful "shabah" position, are clear violations of Israel's obligations of the protection against, and the prevention of, torture under the aforesaid international treaties. More­over, the specific threats relating to the detainees' relatives made by the interrogators at Camp 1391 are clearly intended to impair the detainees' capacity of decision and to force them to confess. Such coercion is un­questionably a form of "mental" pain or suffering, as defined in article 1 of CAT. This was confirmed by the Human Rights Committee's General Comment 20(5), which stressed that "the prohibition in article 7 [of ICCPR] relates not only to acts that cause physical pain but also acts that cause mental suffering to the victim".

Surely, another form of acute mental distress is the state of total isolation, which forbids any human contact with the outside world and even within the detention facility; this is in fact a system of means used by the interrogators to break the detainees and eventually have them confess. According to psychiatrist Dr Yekuakim Stein who has thoroughly studied the effects of complete seclusion during detention (the conclu­sions of which have been submitted by HaMoked in one of its petitions to Israel's High Court), the conditions at 1391 are a form of psychological torture which the professional literature refers to as "DDD" (debility, dependency, dread). Debility is rendered by "extreme fatigue or illness"; dependency by a "situation or an atmosphere in which the detainee is completely dependent on his interrogator for everything"; dread by the "fear of death, torture, punishment, harm to relatives, never being able to return home, isolation, being forgotten"1s. All these elements, argues HaMoked, are present in the ill-treatment of the prisoners of Camp 1391. This is made particularly clear by the combination of sensory deprivation (i.e. no daylight in the cells) and sleep deprivation (i.e. during interroga­tions).

Article 16 of CAT states that "each Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1" (my italics). The conditions of incarceration at Facility 1391 do not satisfy the protection against, let alone the preven­tion of, cruel, inhuman or degrading treatment or punishment. For example, as described above in the known facts about the facility and as emphasized in descriptions set forth in the affidavits, prisoners have to undress completely in front of mocking soldiers and they often remain naked and handcuffed during interrogations. Along with sexual humilia­tion, another infringement on their physical privacy is the degrading conditions of the cells, which hardly reach the minimum standards of personal hygiene. Indeed, some detainees are forced to wallow in their own feces, causing unbearable stench because they are compelled to remain with their excrements in a small cell for days on end14. This is far from the basic requirements for personal hygiene, which were called for, as early as 1955, in the Standard Minimum Rules for the Treatment of Prisoners15.

Any analysis of the abuse of power on detainees at Facility 1391 which would not take into account the context of the Israeli-Palestinian conflict would, of course, be incomplete. This is why, before moving on to the other rights infringed at Israel's secret detention site, we shall briefly turn to international humanitarian law. The prohibition of torture and other cruel, inhuman or degrading treatment or punishment, is embod­ied in the four 1949 Geneva Conventions, which Israel has signed and ratified in 1951. Article 3, which is common to all four conventions, reads:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, includ­ing members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all cir­cumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular mur­der of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a

regularly constituted court, affording all the judicial guar­antees which are recognized as indispensable by civilized peoples...

Geneva Conventions, I, II, III, IV, article 3 (my italics)

The acts of torture and cruel, inhuman or degrading treatment or punishment, which, according to numerous affidavits, occur at Facility 1391, are thus in clear violation of international humanitarian law.

It is not the purpose of this paper to enter the long debate on the applicability of the Geneva Conventions to the occupied territories; however, it is worth noting that Israel has claimed at various occasions that the Geneva Conventions are not applicable in the context of the war on Palestinian terrorism; in other words, terrorists and potential terror­ists cannot be considered prisoners of war. Since Palestinian terrorists, the Israeli government maintains, do not belong to an internationally recognized state, they do not enjoy the status of prisoners of war once they are captured. According to the State of Israel, they are "illegal combatants'', much like the US' so-called "enemy combatants" at Guantanamo Bay. Indeed, there is no doubt that both Israel and the US have used these expressions in order to curb some of their obligations under international humanitarian law.

However, despite the Israeli government's argument for the non­applicability of the Geneva Conventions to the occupied territories16, thereby depriving some of its detainees, who are either terrorists or alleged terrorists, of the prisoner-of-war status, its authorities are by no means entitled to place their prisoners in conditions which are cruel and degrading and which, due its secret location, increases the likelihood of acts of torture, since the freedom from torture and other cruel, inhuman or degrading treatment or punishment are internationally recognized as absolute and non-derogatory rights. Besides, even if Israel does not recognize the applicability of the Geneva Conventions to the occupied territories, the rules led out in article 3 of all four of the Geneva Conven­tions, according to the International Court of Justice (ICJ), "constitute a minimum yardstick(...) and they are rules which, in the Court's opinion, reflect(...) 'elementary considerations of humanity'". The ICJ also underlined that the Geneva Conventions "are in some respects a develop­ment, and in other respects no more than the expression, of [the funda­mental general principles of humanitarian law]". In addition, the ICJ has acknowledged that, as defined in article 1 (also common to all four of the Geneva Conventions), to "respect" the Conventions and to "ensure respect" for them "in all circumstances" is "an obligation [which] does not derive only from the Conventions themselves, but from the general principles of humanitarian law"(my italics)17. Therefore, the Geneva Conventions, at least insofar as articles 1 and 3 are concerned, seemed to have attained the status of customary international law.

This is why, along with the undisputed applicability of the absolute non-derogatory nature of torture in human rights law, the acts of torture and other cruel, inhuman or degrading treatment or punishment, which, according to numerous affidavits, have occurred at Facility 1391, are blatant violations of the fundamental and general principles of interna­tional humanitarian law and thus of customary international law, which is binding upon all states.

THE RIGHT TO RECOGNITION AS A PERSON BEFORE THE LAW AND THE RIGHT TO LIBERTY AND SECURITY OF THE PERSON

If any right is as absolute as the freedom from torture, it is the right to recognition as a person before the law. The right was codified and made legally binding by article 16 of ICCPR. There is no doubt that as much as the likelihood for acts of torture to occur at a secret detention place is high, so must it be for the suppression oft he right to recognition as a person before the law. Since there is no form of international moni­toring system at places like Facility 1391, there is no incentive for the Israeli authorities responsible for the detention site to allow for appropri­ate legal procedures; quite the opposite, the incentive is to extract infor­mation from their detainees (by the means described above) as quickly as possible, in particular in situations concerning terrorist activities, such as a "ticking bomb" situation. To be sure, when interrogators oft he GSS are facing potential terrorists, they are likely to prolong interrogations and delay legal procedures, since to face the bureaucratic burden of law is a hassle they much rather avoid as it holds back the interrogation and inquiry process.

Sheikh Obeid, for example, was never tried or accused of any crime during his entire time in custody at Camp 1391. This leads us to article 9 and 14 of ICCPR. Article 14(1) states that "everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law". Needless to say, this right can hardly be exercised in the conditions implied by the said covert detention site. Article 9 discusses the right to liberty and security oft he person: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be de­tained in custody"18. The entire article is essential for two reasons; the first is that all the rights it contains are violated at Facility 1391 (in particular, the right to be informed, at the time of arrest, oft he reasons for the arrest19, the right to meet with an attorney20, the right to take proceedings before a court and the right to compensation in the case of an unlawful arrest21); the second, hardly surprising for it is directly related to the first reason, is that Israel has derogated from its obligations under article 9 oft he Covenant (I shall return to the question of deroga­tions below).

CONTACT WITH THE OUTSIDE WORLD

As I am of the belief that the Geneva Conventions are applicable to the occupied territories, these latter shall be used to show that the right of a detainee to contact the outside world, as much as the right oft he outside world (e.g. relatives, friends, NGOs) to contact the detainee are internationally protected. I have already mentioned the infringement of the right of prisoners at Facility 1391 to see a legal counsel. Yet, also of importance is the right of the prisoner to contact his relatives. This provision is led down in articles 106, 107 and 108 of the Geneva Conven­tion Relative to the Protection of Civilian Persons in Time of War (the Fourth Convention). Here is the first of the articles just mentioned:

As soon as he is interned, or at the latest not more than one week after his arrival in a place of internment, and likewise in cases of sickness or transfer to another place of internment or to a hospital, every internee shall be enabled to send direct to his family, on the one hand, and to the Central Agency provided for by Article 140, on the other, an internment card similar, if possible, to the model annexed to the present Convention, informing his relatives of his detention, address and state of health. The said cards shall be forwarded as rapidly as possible and may not be delayed in any way.

Geneva Convention IV, article 106

Israel's secret detention place clearly violates this provision, as none of the detainees are allowed to communicate with their families, just as their families are unable to contact them since they do not know their whereabouts.

The obstruction of communication with prisoners also extends to highly respected non-governmental organizations like the International Committee of the Red Cross (ICRC)22. Indeed, even after having discov­ered the existence of the secret detention place and after having re­quested to visit it, access to Camp 1391 was denied; as Aviv Lavie points out, "it is the only detention facility that the state prevents the Interna­tional Red Cross from visiting"23. Needless to say, this is a violation of the Geneva Convention Relative to the Treatment of Prisoners of War (the Third Convention), of which article 126 stipulates that

[delegates of the ICRC] shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour, and shall have access to all premises occupied by prisoners of war(... ). They shall be able to interview the prisoners, and in particular the prisoners' representatives, without witnesses, either personally or through an interpreter. [They] shall have full liberty to select the places they wish to visit. The duration and frequency of these visits shall not be restricted. Visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure.

Geneva Convention III, article 126 (my italics)

Israel could invoke "reasons of imperative military necessity", as the secret detention site is located in a military base and .as the visits may jeopardize national security. However, the text is clear: "then only as an exceptional and temporary measure". Months, if not years, cannot be considered a "temporary measure".

THE FREEDOM FROM ENFORCED DISAPPEARANCE AND THE NEGATIVE DOMINO EFFECT

With the above in mind, it should be clear by now that all the condi­tions of Facility 1391 point to a well-known situation: enforced disap­pearance. To be sure, the forced disappearance of persons like (to men­tion but a few) Sheikh Obeid, Mustafa Dirani, Hashem Fahaf, Raab Bader, Mu'ataz Shahin, Sameer .Jadala, Bashar Jadala and Mohammed Jadala, all of whom were suspected of having direct or indirect links with terrorist organizations24 and have been incarcerated at some point or another at the secret detention place, enforced disappearances such as these, I say, constitute in themselves one the gravest violations of human rights. The reasons for this is that enforced disappearance is a typical case of what one might call a negative domino effect in human rights violations, i.e. the infringement of a comprehensive right which necessar­ily brings about the violation of other rights directly or indirectly con­nected to it.

Although the freedom from enforced disappearance is not yet considered an explicit human right (indeed, it is surprising that it is not the subject of an ad hoc convention which would prohibit it in all circum­stances), the violation of this freedom at Camp 1391 automatically and negatively dominoes on the other rights discussed above, e.g. the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment, the right to liberty and the security of the person, the right to recognition as a person before the law, the right to a fair trial and a public hearing, the right of detainees to contact the outside world, etc. Should one examine in more depth the negative domino effect of the violation of the freedom from enforced disappearance, the list would no doubt be much longer than the foregoing. This bears wit­ness to the interrelation and interdependency of human rights in general, evoked in the 1993 Vienna Declaration and Program of Action on Human Rights.

The history of the freedom from enforced disappearance is in itself fascinating and would be the subject of another study; here we shall only partly retrace some of the main aspects underlying its development. In fact, one wonders why it took so long before one recognized that the absolute prohibition of prolonged incommunicado detention is funda­mental to the human rights regime. Although a great deal of binding and non-binding documents implicitly suggest that secret detention sites, and thus prolonged incommunicado detention, should be prohibited25, there is still no legally binding instrument that abolishes the practice of covert detention centers. Indeed, only lately do we find soft human rights law actually referring to the matter, as article 10 of the 1992 Declaration on the Protection of all Persons from Enforced Disappearance: "Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention. Accurate information on the detention of such persons and their place or places of detention(...) shall be made promptly available to their family members [and] their counsel" (my italics). In 1998, a Draft International Convention on the Protection of All Persons From Forced Disappearance, modeled on the above­mentioned 1992 Declaration, attempted to abolish prolonged incommu­nicado detention and secret detention sites (though it did not specifically refer to either expressions).

It was really not until the Rome Statue of the International Criminal Court (ICC), which Israel signed (but did not ratify) in 1998, that the problem of enforced disappearance had finally drawn attention and had been dealt with (albeit not in a comprehensive manner). The result, however, was a clear and unambiguous definition (which is a godsend in international law):

"Enforced disappearance of persons" means the ar­rest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowl­edge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the in­tention or removing them from the protection of law for a prolonged period of time.

International Criminal Court Statute, article 7(2)(i)

What appears to be going on at Facility 1391 perfectly embodies this definition. However, the ICC Statute clearly underlines in article 7(1) that this practice constitutes a "crime against humanity" only if it is "part of a widespread and systematic attack directed against any civilian popula­tion". Yet if Facility 1391 is only one among several of Israel's secret prisons, as has been suggested by some journalists26, then one can hardly be surprised that Israel has not ratified the Statute (though there are numerous other obvious reasons why Israel has not yet ratified the ICC Statute).

DEROGATIONS

In light of international law

The entire account above on the breach of human rights at Camp 1391 assumes, of course, that Israel has agreed to all the legally binding rules set out in the various instruments discussed. However, this is not the case, or at least only in part. When Israel signed ICCPR in January 1992, it availed itself the right of derogation from certain articles of the Covenant and has submitted a declaration regarding its derogation, as required by article 4(3). In effect, as Israel has proclaimed the state of emergency in May 1948 which "has remained in force ever since", this situation, explained the Israeli government, "constitutes a public emer­gency within the meaning of article 4(1) of the Covenant". The State of Israel averred that it has therefore "found it necessary, in accordance with the said article 4, to take measures to the extent strictly required by the exigencies of the situation, for the defense of the State and for the protection of life and property, including the exercise of powers of arrest and detention". In these circumstances, Israel concluded that "insofar as any of these measures are inconsistent with article 9 of the Covenant, Israel thereby derogates from its obligations under that provision"27.

We have already discussed the provisions found under article 9, namely the right to liberty and security, which includes the right to be informed, at the time of arrest, of the reasons for the arrest, the right to meet with an attorney, the right to take proceedings before a court and the right to compensation in the case of an unlawful arrest. All these rights, which are fundamental for minimum detention conditions, have been derogated in the name of national security.

Although there is no question that Israel faces a tremendously complex and delicate situation in its conflict with the Palestinian people and has legitimate security concerns which it must support with solid anti-terrorist measures, in no circumstances can it ignore its general obligations not only to "respect" and to "observe" (the words employed in article 55(c) of the UN Charter) human rights and fundamental freedoms, but also to ensure the protection against, and the prevention of, human rights violations. In fact, the lawfulness of Israel's response must be weighed in accordance with the principle of proportionality. In the case of Facility 1391, the secret activities of which the IDF justified by "reasons of state security"28, it is difficult to accept, especially in light of the violation of the absolute rights to freedom from torture and recogni­tion everywhere as a person before the law, that the conditions of incar­ceration and the methods used by the GSS interrogators vis-a-vis the detainees (whatever their criminal offenses may be) at the secret deten­tion site in question can be justified as a proportionate response to the violence and threats of violence to which Israel is subjected.

Indeed, article 4(2) of ICCPR clearly states that no derogations may be made from, among others, articles 7 (on the prohibition of torture and other cruel, inhuman or degrading treatment or punishment) and 16 (on the right to recognition everywhere as a person before the law). Both of these provisions are ius cogens rules and are thus non-derogatory. The excessive degree to which it has (albeit lawfully) derogated from its obligations under article 9 of ICCPR has dangerously led Israel to secretly derogate from the non-derogatory articles directly linked to a situation in which the rights provided by article 9 are denied. From the point of view of state derogations, this situation testifies yet again to the negative domino effect of human rights violations.

In terms of domestic law

It is not the place here to discuss in detail Israel's domestic law in order to decide whether or not Facility 1391 is in breach of the national legal system. In fact, on December 15, 2003 the Supreme Court of Israel (in the case of HaMoked vs. State of Israel et al.) has issued an order nisi regarding the secrecy of the physical location of the facility and required the State Attorney to explain within forty-five days the reason for the secrecy. However, there has been no ruling as to the lawfulness of the secret detention site.

At any rate, as one of HaMoked's petition clearly demonstrates, a great deal of the rights discussed in this study are protected by national law29. Whether or not they can be waived for reasons of national security and self-defense is of course another matter. In effect, I will briefly show what are the possible arguments the IDF could use for derogating from its obligations in regard to civil and political rights.

Although Israel's Basic Law of 1992 on Human Dignity and Liberty expressly states, in section 5, that "there shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise", one cannot help but highlight the fact that these rights are overridden by other sections. For instance, section 8 reads: "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required [or by regulation enacted by virtue of express authorization in such a law]" (my italics )30.

Section 12 of the Basic Law of 1992 seems to leave an even greater margin of action to state authorities with regard to derogations: "This Basic Law cannot be varied, suspended Or made subject to conditions by emergency regulations; notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Adminis­tration Ordinance(...), emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall bef or a proper purpose and for a period and extent no greater than is required" (my italics). In truth, the "proper purpose" is the state of emergency and the "period required" lasts since 1948.

Furthermore, the derogations above do not only concern the right to liberty and security of the person, since the Basic Law of 1992 also men­tions, in section 2, the right to life, body or dignity of any person as such; that is, "violation of the life, body or dignity of any person" can, in ex­treme circumstances (such a state of emergency), be derogated. In fact, after examining the 1999 Supreme Court Judgment Concerning the Legality of the GSS' Interrogation Methods, one notices that Israeli domestic law proves to have a rather significant derogation-like nature as regards also torture and cruel or inhuman degradation or treatment. Indeed, even though the judgment prohibits any acts of torture by the GSS interrogators (including methods such as hooding, the "shabah" position, the playing of loud music, etc.), the judges of the Supreme Court left some leeway for the interrogators, since they held that "a GSS interrogator may(...) potentially avail himself of the 'necessity' defense", which means in short that "the Attorney may instruct himself with respect to the circumstances under which charges will not be brought against GSS investigators, in light oft he materialization oft he conditions of'necessity'"31. In addition, the 1999 Judgment also deals with the question of a terrorist "ticking tomb", suggesting that, at least during the year before the judgment came into force, "the GSS could employ excep­tional methods in those rare cases"32.

Finally, the Judges of the Supreme Court allowed for a loophole for the legal reintroduction of torture: "The question of whether it is appro­priate for Israel - in light of its security difficulties - to sanction physical means in interrogations, and the scope of these means - which deviate from the 'ordinary' investigation rules - is an issue that must be decided by the Legislative branch, which represents the People"33.

Therefore, as the account I have given above of Israel's derogations under its own laws reveals, a rather large margin of action is given to interrogators or other intelligence and security personnel to potentially refrain, during administrative detention, from respecting and protecting some of the most fundamental human rights.

Preventing and Abolishing Prolonged Incommunicado Detention

In July 2001, the Special Rapporteur on Torture wrote in his report:

The basic paradigm, taken for granted over at least a century, is that prisons, police stations and the like are. closed and secret places, with activities inside hidden from public view. The international standards( ...) are conceived of as often unwelcome exceptions to the gen­eral norm of opacity, merely the occasional ray of light piercing darkness. What is needed is to replace the para­digm of opacity by one of transparency. The assumption should be one of open access to all places of deprivation of liberty. Of course, there will have to be regulations to safeguard the security oft he institution and individuals within it, and measures to safeguard their privacy and dignity. But those regulations and measures will be the exception, having to be justified as such; the rule will be openness.

Report of the Special Rapporteur on Torture (A/56/156), July 2001, pp.9-10

This is, of course, utopia; but it is hardly more utopian as was Jean­.Jacques Gautier's proposal to create an international body, with broader powers than those of the ICRC, that could inspect all places of detention, not only prisons and prisoner-of-war camps. Gautier's prophecy has, in part, been fulfilled. I am thinking not only of the powers conferred upon the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment established in 1987 by the Euro­pean Convention for the Prevention of Torture and Inhuman or Degrad­ing Treatment or Punishment (ECPT), but also of those given to the Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, recently set up (December 2002) by the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT OP). In fact, the monitoring mechanisms of human rights proposed by these two conventions are perhaps the first and most important step toward the prevention of torture and degrading treatment in detention places. Indeed, the 21st century, as Mary Robinson pointed out, is the century of prevention, and not merely of respect for, and protection of, human rights and fundamental freedoms.

But monitoring systems are, unfortunately, not enough. For the reasons that this paper has attempted to describe and underline, the prevention of prolonged incommunicado detention is served first and foremost by the abolition of secret facilities of detention, since enforced disappearance and prolonged incommunicado detention, argued the above-quoted Special Rapporteur on Torture, are in themselves "a form of prohibited torture or ill-treatment"34. I am not the first (nor shall be the last) to advocate this necessary prohibition. Indeed, Sir Nigel Radley stated, in 2001, that "torture is most frequently practiced during incom­municado detention. Incommunicado detention should be made illegal, and persons held incommunicado should be released without delay"35. Similarly, Manfred Nowak, in his report submitted to the Commission on Human Rights in 2002, requested "the absolute prohibition of any form of incommunicado detention [and] the absolute prohibition of secret places of detention"36• In February 2003, still another report of the Intersessional Open-ended Working Group on Civil and Political Rights underlined as its number-one rule for its program regarding the preven­tion of human rights violations: "[The] prohibition of incommunicado detention and of secret places of detention"; the report added that "the participants considered that this prohibition should be absolute"37. It is noteworthy to observe, however, that the call for the absolute prohibition of incommunicado detention seems somewhat unfeasible, for is not the first phase of any detention before contact with the family or legal coun­sel incommunicado detention? This is why I prefer to use the formulation of 'prolonged incommunicado detention'.

At any rate, another crucial method to combat torture and inhuman or degrading treatment would be to elaborate a comprehension interna­tional convention on the protection of all persons against enforced disappearance (which, in fact, is currently being discussed at the UN Commission on Human Rights), modeled on t.he 1998 Draft Interna­tional Convention on the Protection of All Persons From Forced Disap­pearance. This convention would not only declare that "State Parties guarantee that any person deprived of liberty shall be held solely in an officially recognized and controlled place of detention and be brought before a judge of other competent judicial authority without delay, who will also be informed of the place where the person is deprived of liberty", but would also directly refer to incommunicado detention and secret places of detention, thereby abolishing them. Ideally, there would be no possibility for derogations from states' obligations to protect against and prevent prolonged incommunicado detention and covert facilities of incarceration.

As a result, to prevent prolonged incommunicado detention, coun­tries like Israel (which I have used here as a case study, but which, I am aware, is only one instance among many) must not only sign CAT OP and install more rigorous domestic detention monitoring systems (as, for instance, Austria has done), but must also (in the best of worlds) become a party to a future internationally binding convention abolishing in clear terms prolonged incommunicado detention and secret incarceration facilities.

Secondly, one has to acknowledge that the existence of conditions of detention and methods of interrogation such as those found at Facility 1391 are not altogether surprising when one bears in mind the following three factors: (1) the reservation Israel has placed on article 20 of the Convention against Torture (in accordance with article 28), which al­lowed for the Committee against Torture to "make a confidential inquiry" on indications that torture is being systematically practiced in a State Party's territory, which "may include a visit to its territory"; (2) the derogations from article 9 of ICCPR and from the rights enshrined in Israel's Basic Law of Human Dignity and Liberty; and (3) Israel's position regarding the non-applicability of the Geneva Conventions on occupied territories.

Naturally, I suggest (though unrealistically, of course) that Israel abandon both its derogation from the aforesaid provisions under ICCPR and its reservations on article 20 of CAT. More importantly, it must recognize the application of the Geneva Conventions on the occupied territories. Finally, one hopes that it "\\<ill abolish all forms of torture (or, as the Supreme Court calls it, "physical pressure"), no matter the circum­stances and despite the state of emergency.

"The degree of civilization in a society can be judged by entering its prisons... " Thus we go on quoting Fyodor Dostoevski's famous adage from The House of the Dead. But in cases like Facility 1391, one cannot even judge the prison's degree of civilization, as we are not permitted to enter. Perhaps the phrase should be: the degree of civilization in a society can be judged by its openness in regard to its prisons. Indeed, to protect against, or better, to prevent, violations of human rights, one has to penetrate all places of detention set up by states. Only in uncover­ing, in Antonio Cassese's words, "their shameful parts"38 can one hope to abate the stench of feces and of state sovereignty that permeates the walls of secret prisons like Facility 1391.

Notes

Hannes Opelz is currently a graduate student at the Johns Hopkins University School of Advanced International Studies (SAIS), Bologna Center. Previously, he earned his bachelor's degree in English Literature from University College London and his master's degree in French and Comparative Literature from the Sorbonne (Universite de Paris III).