The Committee against Torture (CAT) requires every country that has ratified the Convention against Torture to submit (so called) periodic reports at 4 yearly intervals. The 1994 periodic report from Israel (CAT/C/16/Add.4) had explained the reasoning of Judge Landau's Commission (see box 1), and based its position that these activities do not constitute torture on the European Court of Human Rights reversal of the European Commission on Human Rights finding on the 5 interrogation techniques employed by the UK on terrorist suspects, [Ireland v United Kingdom, 18 January 1978 (No.25) 2 EHHR 25]. One of the CAT’s 1994 conclusions – paragraph 168 – stated thus: ‘The Landau Commission Report, permitting as it does "moderate physical pressure" as a lawful mode of interrogation, is completely unacceptable to this Committee’.
2 years later, in 1996, Mr. Nigel Rodley, the Special Rapporteur on Torture, in his report on Israel to the Commmision on Human Rights, contradicted the Israeli position that their “physical pressure” methods are not torture. Later, in November 1996, the Israeli Supreme Court ["Hamdan v. The General Security Service" (HCJ 8049/96)] cancelled an interim injunction against physical methods of interrogation being carried out on a Palestinian detainee called Abd al-Aziz Hamdan, conferring through case law, judicial blessing on torture in Israel (see box 2). The ruling is all the more alarmng because the methods of physical interrogation sanctioned by the Landau Commission remain secret – the Court remained ignorant of what it was authorising. In a unique move, this being the first time the monitoring body has asked any country for an interim document, the CAT requested a supplementary report from Israel accounting for the Supreme Court decision. The International Federation of Health and Human Rights Organisations (IFHHRO), with which PHR(UK) is confederated, placed a submission to the May 1997 CAT session at which Israel presented and defended their report. (see box 3)
PHR(UK)’s part in the submission:
PHR(UK) was directly involved in two ways:
1. During the day-long CAT hearing a torture expert from Denmark, Professor Bent Sorenson who runs a rehabilitation center for torture victims, held up an autopsy report on a Palestinian detainee saying that it clearly indicated the man had been shaken so badly that he died of his injuries. The author of that autopsy report, performed on behalf of the Boston based Physicians for Human Rights in April 1995, is Professor Derrick Pounder – PHR(UK)’s treasurer. The autopsy showed that Mr. Abd al-Samed Harizat died of a large subdural haematoma sustained whilst being interrogated by the Israeli State Security Forces. Although well recognised in children, this is the first case of ‘shaking to death syndrome’ described in an adult.
2. An important part of an human rights organisation’s responsibiities is influencing events through the submission of reports to, and lobbying members of, institutions with power – in particular United Nations committees, including that of the CAT. The submission to CAT is the first on the part of the IFHHRO since its formation in November 1996 and came about as a result of the PHR(UK) chair attending a course on human rights advocacy in London run by Bernie Hamilton, Director of the Center for the Development of International Law. It was Professor Hamilton’s relentless encouragement (not to say cajoling) that translated (his) good idea into action.
Box 1. The Landau Commission
The legal basis for the methods of interrogation employed is the report of a commission appointed in 1987 to investigate allegations of torture by the General Security Service. That panel, the Landau Commission, came up with the revelation -- stunning at the time -- that the General Security Service had for years used violent methods in questioning Palestinians, including "criminal assault, blackmail, and threats," and then had routinely lied about it to military courts.
But instead of banning such practices outright, the commission proposed legalising "a moderate measure of physical pressure" in interrogations, and spelled out permissible techniques. The details have remained classified -- on the ground that detainees should not know what they face -- although it has to be said that pamphlets describing the methods are readily available from human rights organisations.
Box 2 – Amplification of details surrounding the case in November 1996 where the interim injunction against torture of Abd al-Aziz Hamdan by the General Security Service was lifted. - written by Serge Schmemann
In a case that gained considerable notoriety at home and abroad, the High Court issued an injunction one day against violent interrogation of a prisoner and lifted it the next at the request of the Shin Bet (General Security Forces). During the hearing, the justices pressed the detainee's lawyer, Andre Rosenthal, to declare whether he would permit a prisoner to be tortured if the prisoner knew how to stop a bomb that was about to explode. When Rosenthal demurred, Justice Mishael Cheshin exploded at him: "That's the most immoral and extreme position I've ever heard in my life."
"We are in a terror situation, bombs explode around us, we have to use force, and for this decision we pay a big price," Shai Nitzan, an assistant attorney general who represents the Shin Bet, said in an interview. "Look, I see myself as a liberal, as a defender of human rights. But there is the question of the right of people in Israel, Jews and Arabs, to life. That is more important than other rights. We cannot do without moderate physical pressure. I think it's very courageous of the court to act as supervisor on this, and not to just say, 'It's out of our jurisdiction.' "
Dr Ruchama Marton, an Israeli psychiatrist and head of Physicians for Human Rights-Israel, an organization that has long battled against torture, rejects such arguments. "I can't stand it when the victimizers start acting victimized," she said. "When they tell me, 'It's you we're protecting,' I answer, 'Please don't.' I say time and time again, there's no way to maintain human rights if you allow any possibility to violate them. After all, all these conventions against torture were intended precisely to protect people from torture when there's danger from bombs and terrorists."
Fax to: Secretary to the United Nations Committee Against Torture,
Palais des Nations Room D 216, United Nations, 8-14 Avenue de la Paix, 1211 Geneva 10, Switzerland. 5 May 1997
Dear Mr. Bruni,
With respect to your Committee’s reviewing of its report on the State of Israel, the affiliated organisations of the International Federation of Health and Human Rights Organisations would like to bring to your attention their profound concerns about the present situation in Israel. As human rights concerned health professionals, we are concerned about the continuing lack of legal human rights protection for individuals in Israel who are suspected of so-called terrorist actions. We are as well deeply concerned about the continuation of interrogation techniques by the General Security Service which include the application of a moderate measure of physical pressure (as sanctioned by the government-approved 1987 Landau Commission Report). In our opinion this should be regarded as a legalised form of torture with severe physical and mental sequelae.
We, the undersigned organisations concur with the Special Rapporteur Mr. Nigel Rodley’s determination that Israel’s methods of interrogation constitute torture as defined under relevant international law. With respect to the health sequelae we refer to the listed cases in the report of the Special Rapporteur on Torture, Mr. Nigel S. Rodley, to the Commission, and to the report of Physicians for Human Rights (Boston, USA), one of our affiliated organisations, on the death of a detainee, Mr. Abd al-Samed Harizat who was shaken to death during interrogation in April 1995. This report has separately been dispatched to you by Physicians for Human Rights (Boston). We are also concerned about the continuing practice of prolonged and extended administrative detention and its damaging health sequelae to the individual detainees.
We strongly support the recommendations mentioned in Mr. Rodley s report, and we urgently request the Committee to include the devastating health sequelae in its reviewing the report on Israel.
Charles Clement, MD, President Physicians for Human Rights, United States Peter Hall, MD, President Physicians for Human Rights, United Kingdom Olav Vedel, President Physicians for Human Rights, Denmark Ruchama Marton, MD, President Physicians for Human Rights, Israel Adriaan van Es, MD, President Johannes Wier Foundation for Health and Human Rights, the Netherlands Thabo Ranghaka, MD, President Physicians for Human Rights, South-Africa Amar Jesani, MD, President CEHAT, India
2. The search for justice in Rwanda, as of August 1997
There are two criminal justice systems trying those accused of genocide – the national courts of Rwanda and the International Criminal Tribunal of Rwanda which is located in Arusha, a country town in western Tanzania. Many of those found guilty in Rwanda will be executed while their counterparts in Arusha will be awarded prison sentences, despite many of them being the more serious culpable.
National courts in Rwanda:
The genocide of 800,000 or more Tutsis and moderate Hutus that took place in Rwanda over 100 days in 1994 was perpetrated by a large proportion of the Hutu ethnic group, who make up about 85% of the total population. No one knows how many were complicit in some way, but it is not unreasonable to suggest that about half of all adult males ie 875,000 were - and that does not take account of the women and children who took part. The minister of justice reckons it took a million perpetrators.
At present there are only (!) about 110,000 (ie one eighth of those I suggest were complicit) in prison or places of detention in Rwanda (in what were and maybe still are appalling conditions).
Since 27 December 1996, (national) court proceedings against persons accused of genocide have been taking place in Rwanda pursuant to Organic Law no. 08/96 of 30 August 1996 on the Organisation of prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity Committed since October 1990 (Genocide Law). Between 3 January and 30 June, the Specialised Chambers of Courts of First Instance handed down judgments in respect of 142 defendants in Butare, Byumba, Cyangugu, Gikongoro, Gisenyi, Gitarama, Kibungo, Kibuye, Kigali Ville, Kigali Rural (Nyamata and Rushashi), and Ruhengeri Prefectures. An additional 84 defendants have appeared before specialised chambers; as of 30 June, all 84 were waiting either for the resumption of their trial, the transfer of the trial to a different court, or a decision on the merits of the case. By the end of June, a total of 142 judgments had been handed down which included 61 death sentences and eight acquittals.
International Criminal Tribunal of Rwanda (ICTR).
The U.N. Tribunal was set up in November 1994 to bring to justice leaders of the genocide of an estimated 800,000 Tutsis and some moderate Hutus in Rwanda in 1994. Its maximum penalty is life imprisonment. It runs in parallel with the Hague-based criminal tribunal for the former Yugoslavia, set up by the U.N. in 1993 as the first international body prosecuting war crimes since the Nuremberg and Tokyo trials after World War II.
The ICTR was established by the 15 member United Nations council with a vote of 13 to 1 with one abstention. Rwanda, by a quirk of fate at the time a member of the council, voted against the resolution, objecting because, among other things, the statute does not provide for the death penalty (a position with which the USA was in some sympathy). China, one of five members with power to veto resolutions, abstained in opposition to the principle of creating any international war crimes tribunal.
Up until recently, a total of 21 people had been indicted by the Tribunal, which had 12 suspects in detention in Arusha. 2 weeks ago the former premier, Jean Kambanda, former senior military commander, Gratien Kabiligi, a Belgian called Georges Ruggiu who is a former journalist with Radio-Television Mille Collines which incited the public to take part in the genocide, along with five others have been arrested in Kenya.
Whom should the ICTR try? Here is the opinion of Rakiya Omaar who had written the so far definitive record of the genocide - ‘Death Despair and Defiance’
Bourgmestres (mayors) in charge of communes played a crucial role in the success of the genocide. In Rwanda’s rigid and hierarchical administrative structure, they wielded enormous power. During the genocide, they possessed the power of life and death over tens of thousands of people. Few showed the humanity or the courage to resist the order to massacre Tutsis en masse.
Instead, the overwhelming majority of bourgmestres chose to use their immense authority in their communes, as well as the human and financial resources at their disposal, to promote the genocide. Massacres in which huge numbers of people died were carried out in their own offices or in churches, schools and hospitals under their jurisdiction, usually in their presence. Sometimes, their participation was brutally direct; they shot directly into the victims, or macheted them to death. On other occasions they used the policemen under their control to prepare these pogroms and to shoot anyone who attempted to escape certain death. Arms were stocked in their offices and they coordinated their distribution to civilians. They gave speeches with explosive messages, expressly intended to trigger the genocide. They supervised roadblocks and provided encouragement, transport and alcohol to the militia, whose raison d’etre was the mass murder of Tutsis. They prepared lists of those condemned to die and pointed out the homes of targets to the militia. Bourgmestres often worked together to prevent the escape of survivors or to "repatriate" each other’s residents so they could be killed "at home."
Jean Paul Akayesu was the first individual to be tried by the International Tribunal but he is not the only bourgmestre so far indicted: Joseph Kanyabashi and Elie Ndajambeje of Butare, who were both arrested in Belgium, were among the first to be indicted by the Tribunal. It seems that the International Tribunal hopes to concentrate future efforts on catching what are commonly described as the "big fish" the men and women who played a national role in planning and executing the genocide of 1994. The fact that these architects of the genocide bear the ultimate responsibility for the horrors unleashed in 1994 is beyond dispute. It is appropriate, and only fair, that they should be held accountable for the crimes they unleashed. However, beyond the president, prime minister and ministers of the interim government, it is not clear who else is, prime facie, included in this category. Even senior politicians and military officers cannot be assumed to have played a national role by virtue of their positions alone.
The strategy risks excluding most of the important local government officials, prefets (governors), deputy-prefets, bourgmestres, deputy-bourgmestres and councillors. The prefets of Cyangugu, Gikongoro and Kigali, for example are directly responsible for the deaths of hundreds of thousands of people. A number of councillors, including Rose Karushara of Kimisagara in Kigali and Mika Muhimana of Kibuye are among the greatest killers of 1994, despite their junior positions. The vast majority of these local government officials are in exile in Zaire, Burundi and Tanzania, the home of the International Tribunal.
The evidence against them is far more substantial and stark than is the case for a number of people who held ministerial positions in the interim government. With one exception, all the prefets have escaped the country. If the Tribunal ignores their cases, who will judge their crimes? Moreover, local officials were key elements in the pyramid structure of authority which made the genocide possible. Without a full understanding of how the genocide unfolded in the regions, the Tribunal will have difficulties in amassing the quantity and quality of evidence necessary to indict individuals who had responsibilities at a national level, particularly if recent practices are allowed to persist.
The International Tribunal has a responsibility to ensure that they do not escape justice, on the basis that they do not constitute "bigfish" according to some arbitrary criteria. To the survivors of the genocide, these are the men - and some women - who turned Rwanda from a country of a thousand hills into a country of a thousand cemeteries.”
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