Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
Israel’s Manual on the Laws of War (1998) states: “The rationale behind the law of war is that even in the midst of the inferno, there are grave deeds that must not be committed … torture of prisoners”.
The manual specifies that a combatant hors de combat
is entitled to special rights, i.e. protection against physical and mental harm and that “torture and imprisonment under inhuman conditions are absolutely forbidden”.
Israel’s Manual on the Rules of Warfare (2006) states:
Even if it appears that in war everything is permissible and there is no differentiating between a moral and an immoral act, even in the heat of battle there are actions that are considered unacceptable (rape, the torturing of prisoners-of-war, medical experiments) and it is on these that the rules of warfare are based. Although the rules of warfare do not entirely prevent the horrors of war, they draw a line in the sand that must not be crossed, even in war.
The manual further states: “The disciplinary and punishment rules applicable in the army of the imprisoning country will also apply to the prisoners-of-war … torture and imprisonment under inhumane conditions are absolutely forbidden.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950) includes the ill-treatment of the civilian population, of prisoners of war and of persons on the seas in its definition of war crimes.
In its judgment in the Eichmann case
in 1961, Israel’s District Court of Jerusalem held that the following behaviour caused serious bodily or mental harm and, therefore, amounted to a violation of Israel’s Nazis and Nazi Collaborators (Punishment) Law: “detention [of Jews] in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings and to suppress them and cause them inhumane suffering and torture”.
In its judgment in 1962, the Supreme Court of Israel upheld the District Court’s finding and found the accused guilty of crimes against humanity in the form of torture against the civilian population.
In its landmark judgment in the General Security Service case in 1999 dealing with the interrogation methods of the General Security Service, Israel’s High Court held:
A reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever … There is a prohibition on the use of “brutal or inhuman means” in the course of an investigation … This conclusion is in perfect accord with (various) International Law treaties – to which Israel is a signatory – which prohibit the use of torture, “cruel, inhuman treatment” and “degrading treatment” … These prohibitions are “absolute”. There are no exceptions to them and there is no room for balancing.
In its decision in the State of Israel v. Mustafa Dirani case in 2005, Israel’s District Court of Tel Aviv stated:
Article 8 of the Universal Declaration of Human Rights, of 1948 … prohibits, in article 5, torture and cruel, inhuman, and degrading treatment … The Universal Declaration … is recognized in Israel as part of binding customary law (see HCJ 103/67, The American-European Beth-El Mission v. Minister of Welfare, P. D. 21 (2) 325, 333).
The prohibition on torture appears also in article 7 of the International Covenant on Civil and Political rights, of 1966, which was ratified by Israel (31 Treaty Instruments 1040, p. 169), and is also recognized in Israel as part of international customary law (see HCJ 103/67, The American-European Beth-El Mission
, supra, 325).