In quashing Duma confessions given under duress, did court prohibit torture?

The panel of Central District Court judges zigged and zagged its way through a Tuesday ruling on the admissibility of confessions made by the Jewish suspects in the 2015 Duma terror attack that killed three members of the Dawabsha family.

On the one hand, the court quashed all admissions given during questioning in which interrogators from the Shin Bet security service were authorized to use enhanced methods against the suspects — Amiram Ben-Uliel and an unnamed accomplice who was a minor at the time —  due to a “ticking time bomb” scenario where additional attacks were believed to be imminent.

“These measures severely violated the defendants’ fundamental right to maintain the integrity of body and soul. In addition, the dignity of the accused was damaged,” the court ruled.

On the other hand, the judges legitimized the use of the methods in the first place, saying the “severe” threat posed by the “rebellion infrastructure” — the terror group that the suspects are alleged to have been a part of — indicated possible additional damage to Palestinian lives and property.

Amiram Ben-Uliel, who was indicted on January 3, 2016, for murder in the killing of the Dawabsha family in Duma (courtesy).

The judges nullified confessions from the unnamed minor regarding his role in planning the attack, even though these were given outside the confines of the so-called “necessary interrogations.”

They argued that the admissions he gave during the short breaks between the enhanced interrogations were not given willingly because he was still under the impression that the “necessary interrogations” would continue if he did not talk.

The same reasoning was given to nix a confession given by the primary suspect, Ben-Uliel, shortly after one of several “necessary interrogations” Shin Bet agents conducted with him.

However, the judges upheld an additional confession he gave well after such a “necessary interrogation,” arguing that enough time had passed since the enhanced interrogation and that footage of the questioning showed Ben-Uliel to be in a healthy state of mind.

Palestinians look at the damage after a house was set on fire and a baby killed, allegedly by Jewish terrorists, in the West Bank village of Duma, on July 31, 2015. (AFP/Jaafar Ashtiyeh)

The meaning behind the zigzags

Dr. Rachel Stroumsa, who heads the Public Committee Against Torture in Israel (PCATI), explained that the “the ruling was complex on purpose.”

“The judges were very careful to cover for themselves in this ruling,” she said, pointing to the court’s fear of setting any precedents.

The judges wrote: “It should be emphasized that this is not a sweeping determination on the products of ‘necessary interrogations’ (where enhanced interrogation is authorized). This decision is relevant to our case only.”

Stroumsa acknowledged the court’s clear stance against the inadmissibility of any confessions given during “necessary interrogations,” but pointed out that the judges steered clear of ruling on the legality of the torture methods themselves that were employed during those probes. (The suspects’ attorneys have said the techniques used against their clients included stress positions, beatings, and psychological intimidation.)

Still, the PCATI head referred to Tuesday’s decision as “extremely rare and unusual” and added that “if we start seeing these kinds of decisions from now on, we will see a very significant shift” regarding the state’s view on torture.

A right-wing Jewish activist protests outside a court hearing in Petah Tikva, on the matter of the Jewish youth arrested for involvement in a July arson attack in the West Bank village of Duma, December 28, 2015. (Flash90)

“I am heartened by the extent to which this case has raised a debate in Israeli society. I think we’ve had a tendency for too long to shut our eyes and not want to look at what happens during Shin Bet interrogations,” she added.

Mordechai Kremnitzer, vice president for research at the Israel Democracy Institute, explained that prior to the Central District Court’s ruling, there had been an attempt by the state to claim that the means used in “necessary interrogations” are not severe or damaging to detainees.

“But in this decision, there’s a clear statement from the court saying that this is not the case and that there is damage done by these interrogations — so much so that confessions given throughout must be tossed,” said Kremnitzer, who served on several government-appointed committees on the issue. 

Former Shin Bet agent Gonen Ben Itzhak argued that the next step the courts could take would be to quash even those confessions given well after the completion of a “necessary interrogations.”

He argued that no amount of time that elapses after a “necessary interrogations” is enough for a suspect to confess willingly so long as the possibility of continued torture remains.

Saad and Riham Dawabsha, with baby Ali. All three died when the Dawabsha home in the West Bank village of Duma was firebombed, by suspected Jewish extremists, on July 31, 2015 (Channel 2 screenshot)

Despite his long-standing ties to the Shin Bet, Ben Itzhak said he “celebrated” Tuesday’s decision, which appeared to have been a reprimand of the agency’s conduct — at least on the issue of “necessary investigations.”

“I think this is a very positive development that the court is sharply critiquing the conduct of the Shin Bet,” he said, explaining that with the suspects’ inability to meet a lawyer during such interrogations, the only body that could defend them was the court itself.

“This is how a democracy is supposed to function,” Ben Itzhak added.

The former Shin Bet official acknowledged that “necessary interrogations” may continue to be a part of of the agency’s policy, but argued that interrogators “will have to at least think twice before they use such methods in the future.”

For his part, Kremnitzer was less optimistic regarding the implications of Tuesday’s decision.

He viewed the court’s refusal to rule on the legitimacy of “necessary interrogations” as an “incentive for interrogators to continue employing such methods.”

Right-wing activists attend a protest in Tel Aviv, staging alleged torture by the Shin Bet against Jewish terror suspects (Tomer Neuberg/Flash90)

“They are able to get the information they want (from the “necessary interrogations”) in addition to a confession later on [after some time has passed] that the court has ruled can still be used to prosecute,” said Kremnitzer.

The IDI vice president of research argued that most of the Israeli public still views torture as legitimate in extreme cases and that therefore the likelihood that the state would move to outlaw such practices altogether appears low.

Back to the real story

What was clear Tuesday was just how much the suffering of the suspects — rather than the victims — has become the story of the Duma affair.

The Dawabsha family, which lost 18-month-old Ali along with his parents Riham and Saad, was mentioned only twice in the court’s 165-page decision, both times in passing.

In a statement following the ruling, grandfather Hussein Dawabsha said he had no qualms about the court’s decision to throw out confessions given under duress.

However, he made clear that “now that this part is complete, it’s time to hold those responsible accountable.”