Using the Law to Justify the Illegal
Dec 29 1998by Eitan Felner, Executive Director of B'Tselem This article originally appeared in Le Monde on December 11, 1998. As an Israeli citizen and a human rights defender, 1998 has been a year of Jubilees. This month millions of people around the world celebrate the 50th anniversary of the Universal Declaration of Human Rights, which has become, as Kofi Annan said, the worldwide "yardstick for measuring the degree of progress of societies". Israel also marked its 50th birthday this year. This double jubilee is not coincidental. It was the atrocities of Nazism during Word War II that galvanized the international community both to establish an international system for protection of human rights and to recognize the need for a state where Jews could find refuge.

Those who hold dear Israel's place in the community of liberal democratic nations should use this opportunity to confront the bitter irony that Israel is undermining some of the most fundamental principles of human rights enshrined in the Universal Declaration. It is true that in countries around the world, including many of Israel's neighbors, the human rights record is worse than Israel's. What render Israel's abuses unique is its relentless efforts to legitimize blatantly illegal acts within a democratic legal framework - to justify what cannot be justified. "There are two ways of fighting," Machiavelli explains in The Prince, "by law or by force." Israel has often used the former in order to justify the latter.

The use of torture is the most glaring example of this pattern. Amnesty International once stated that torture is the one form of violence that a state will always deny and never justify. Israel has proven Amnesty wrong: Israel is the only country in the world that has legitimized torture, both judicially and rhetorically. Palestinians interrogated by the Shin Bet are deprived of sleep for days and even weeks, tied-up in painful positions for lengthy periods, subjected to deafening music, exposed to extremes of heat or cold and violently shaken. The UN Committee against Torture has determined that these methods of interrogation amount to torture and to cruel, inhuman and degrading treatment.

In Israel, torture is institutionalized, with its own routine and systematic bureaucracy. Torture is governed by detailed regulations and written procedures. A whole contingent of public officials participate in the practice of torture: in addition to the Shin Bet interrogators who directly perpetrate the torture, doctors determine whether a detainee is medically fit to withstand the torture, a ministerial committee headed by the Prime Minister oversees the procedures, state attorneys defend the practices in the courts and finally, the High Court of Justice has effectively legalized torture by approving its use in individual cases.

Hostage-taking is another example in which Israel provides a cloak of legality to a breach of basic standards of international law. Israel has acknowledged that Lebanese nationals are currently held in Israeli detention centers without charge or trial, or beyond the expiry of their sentences, some for periods of up to 11 years. Israel's High Court of Justice upheld the administrative detention of ten of these prisoners as "bargaining chips" to be exchanged for the return of missing Israeli soldiers, thereby legitimizing hostage-holding. The taking of hostages, under any circumstances, regardless of the identity of the perpetrator, is an illegal act under international law and can never be justified. It is disturbing that my government - usually at the forefront of the international struggle against terrorism - has adopted a practice that is one of the trademarks of terrorist groups around the world.

In his autobiography, Nelson Mandela recalls how, during his career as a lawyer and activist, he evolved "from having an idealistic view of the law as a sword of justice to a perception of the law as a tool used by the ruling class to shape society in a way favorable to itself." Israel's systematic reliance on the law to trample basic rights - from sanctioning torture to taking hostages, from establishing settlements to demolishing houses - indicates that the law, as a means to justify human rights violations, was not unique to the Apartheid regime in South Africa.

As an Israeli citizen, it is difficult to acknowledge that, in resorting to these flagrant violations of international law, Israel has become a delinquent state. Thus, the protection of human rights in the Occupied Territories is not only a Palestinian concern. The very bedrock of Israeli democracy - the rule of law - is also at stake.

B'Tselem: The Israeli Information Center for Human Rights in the Occupied Territories - is the leading Israeli organization monitoring, documenting and advocating to improve human rights in the West Bank and Gaza Strip. Founded in 1989, B'Tselem publishes reports, engages in advocacy and serves as a resource center.

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