13 Dec. '11: Military court partially acquits Palestinian due to forced confession

Ayman Hamidah, a resident of al-‘Eizariya in al-Quds District, was charged with several offenses that were committed in 2009, according to the indictment, among them firing at a border policeman. The indictment was based in part on a confession he gave following some forty days of interrogation by the Israel Security Agency (ISA). On 30 November 2011, the military court in Ofer ruled that his confession was inadmissible since it had not been given willingly, and acquitted him of the counts that were based solely on the confession. The court's decision is unusual. Research by human rights organizations has revealed that ISA interrogators have used methods similar to those used against Hamidah, as he described them in court, against hundreds of Palestinians over the years.

Hamidah was accused of 17 offenses, among them firing at a Border Police post, dealing in weapons, car torching, and planning a shooting attack. Some of the counts – including several involving dealing in weapons – were based solely on a confession that he gave in late November 2009, after the ISA had interrogated him for about forty days. In the court hearing, Hamidah, who was represented by attorney Tareq Barghout, testified that he had confessed only due to the interrogators' pressure. The court then held a trial within a trial to investigate the claim, at which testimonies were heard from Hamidah, the ISA agents who had interrogated him, and the police officers who had taken his confession.

In his testimony, Hamidah described the harsh interrogation he had undergone. In the first interrogation, he said, the interrogators told him they were allowed to keep him in detention for more than six months, and that they were the ones who would determine if he would meet with his attorney. Hamidah also contended that the interrogators refused to give him the medication he needs for psychiatric problems. As a result, he suffered from anxiety, muscle contractions, shortness of breath, and other symptoms, and even tried to commit suicide several times during the period of interrogation.

Hamidah also claimed that an interrogator threatened to detain his mother and sister if he didn't confess, and to spread a rumor in his village that he was collaborating with the ISA. During the period of his interrogation, he was transferred to a cell of informers – Palestinian prisoners who work for the ISA and try to get a detainee to talk – for 15 days. Hamidah related how his cellmates had beaten him and whipped him with an electrical cord.

At some point during the interrogation, Hamidah’s brother was brought into his prison cell. His brother told him that their sister had been detained and pressured Hamedah to confess, so that he and his sister could be released from detention. When asked by the judges, he said that these comments by his brother led him to confess.

The president of the military court, Lt. Col. Zvi Lekach, who wrote the principal opinion of the court, held that Hamidah’s confession was not given of his free will. The judge based his decision on Hamidah’s testimony and on the memorandum of interrogation made by the interrogators. The judge stated four primary reasons for reaching his conclusion:

1. 1. The interrogation was prolonged and the interrogators made it clear to Hamidah several times that it would continue until he confessed. Lt. Col. Lekach ruled that, “this systematic line of interrogation is utterly inconsistent with the right to remain silent and effectively denied him that right entirely.”
2. 2. Lt. Col. Lekach doubted the testimony of the ISA interrogators, who described an interrogation that was “almost idyllic, in which the atmosphere was outstanding in its positivity, without exception.” The judge held that, “this almost perfect and idyllic description appears to us an exaggeration that does not correspond to reality. Also, their testimony before us revealed events that did not at all accord with this idyllic picture. During the interrogation, the defendant suffered a shaking seizure, to the extent that the interrogator decided to return him to his cell. The memorandum of interrogation indicates that, more than once, he cried, was angry and shouted, and that his interrogators also shouted at him.”
3. Lt. Col. Lekach accepted Hamidah’s claims regarding violence against him while he was in the cell with the informers, and held that his testimony was convincing, while the prosecution had not presented any evidence to contradict it.
4. 4. Lt. Col. Lekach ruled that Hamidah had decided to confess primarily due to pressure by his brother: “We are convinced that what the defendant’s brother said and the pressure regarding the family led him finally to a psychological breaking point.”

For these reasons, the judge concluded that the confession was not freely given:

The distress of a person who has been subjected to interrogation for a cumulative period of forty days, during which he was also apparently beaten, is very great. When such a person has to choose between [sic] the distress of a relative who is in detention, and moreover, hears that his sister is also being harmed due to his not cooperating with his interrogators, one can assume that the pressure he faces is unbearable. . . We were convinced that for the defendant, who is responsible for the safety of his family members according to the society in which he lives and resides, it was pressure that he could not withstand, and which added to the long period of pressure to which he had been previously subjected.

The court held that the methods used against Hamidah “certainly cumulatively, violate the defendant’s rights and his free will. We believe the chronology of this interrogation raises at least a reasonable doubt, if not more so, that the defendant's statements were not given freely and willingly.”

The court convicted Hamidah on six counts, among them shooting at a person and attempting to cause death, based on other evidence in the case. The court acquitted him on several counts of dealing in weapons, membership in an unauthorized organization, and shooting at a person, after holding that the prosecution’s evidence, considered together with Hamidah's testimony, did not prove his guilt.

The court’s decision is unusual. First, judges have almost no opportunity to examine defendants' confessions, since the vast majority of indictments filed in military courts end in a plea bargain. In 2010, for example, only 82 trials were held among the more than 9,500 files. Consequently, the prosecution almost never has to provide evidence proving guilt, and the defendants are not given the opportunity to claim their confessions were given following the use of forbidden methods. Second, where defendants did raise such a claim, the court rejected the claim and convicted them.

The prohibition on torture and ill-treatment is absolute and applies in all circumstances – even during war and in the battle against terrorism. It is one of the rare prohibitions in international law that is absolute and cannot be balanced against other interests. Despite this, over the years, the ISA has used, and continues to use, interrogation methods that constitute ill-treatment and in some cases also torture, in order to force detainees to confess to the offenses attributed to them.

In 1999, Israel's High Court of Justice held that the ISA’s routine methods when interrogating Palestinian residents of the Occupied Territories were not lawful. The High Court ruled that ISA interrogators were not authorized by statute to use these methods, though there might be cases in which such use would not be a violation of statute, where it is found retrospectively that the use was made in a “ticking-bomb” case.

Following the court’s judgment, the use of torture and ill-treatment during interrogation declined substantially. However, research by B'Tselem and HaMoked: Center for the Defence of the Individual (the reports "Absolute Prohibition", from 2007, and "Kept in the Dark "from 2010), which included testimonies and affidavits of some 200 Palestinians who had been interrogated by the ISA at various times and in various detention facilities since 2005, indicates that interrogees are still exposed to mental and physical ill-treatment during ISA interrogations. The interrogations included, inter alia, detachment from the outside world, binding in painful positions, humiliation and threats against interrogees and their families. The organizations also documented the inhuman detention conditions, which are used to pressure the interrogee. These conditions include narrow cells, sleep deprivation, inedible food, exposure to extreme temperatures, and horrible hygienic conditions, such as denying showers and the possibility to change clothes.

From the beginning of 2001 to March 2010, more than 700 complaints of ill-treatment by ISA agents were filed with the State Attorney's Office by Palestinians who had been interrogated. Not in a single case did the State Attorney's Office think the claim warranted a criminal investigation.

B'Tselem has written to the inspector of complaints by interrogees in the ISA, demanding an investigation into the suspicion that agents violated the law in the course of Hamidah's interrogation.