Ari Z. Zivotofsky
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Coerced confessions: The long-awaited decision and the need to investigate who authorized them

Even when a crime is as vile as the Dawabshehs' burning deaths, laws against torturing criminals must prevail
Illustrative: A right-wing Jewish activist holds a sign reading, "Do not torture me" outside the Duma terror attack trial in Petah Tikva on December 28, 2015. (Tomer Neuberg/Flash90)
Illustrative: A right-wing Jewish activist holds a sign reading, "Do not torture me" outside the Duma terror attack trial in Petah Tikva on December 28, 2015. (Tomer Neuberg/Flash90)

This coming Tuesday, June 19, 2018, a three judge panel in the Ramle court is expected to hand down one of the most important decisions in recent Israeli history. And it is not even deciding a case, but rather a pre-trial motion (mishpat zuta). They will essentially be deciding to what degree the civil rights of Israel citizens are truly protected. It also has implications for how much political considerations should weigh into security related investigations.

Last December, a Beersheva court freed an Arab suspected of involvement with terrorism because the only evidence against him was his confession, which the court determined was not freely given but had been beaten out of him by an overzealous Shabak. (see here  about the Shabak’s use of force). This time, it is Jewish youth who have had confessions beaten out of them by an overzealous Shabak, and the court is set to determine if any of those confessions are admissible in a court of law.

This case involves the burning death of three members of the Dawabsheh family in Duma in the summer of 2015, about which there should be no misunderstanding: all citizens of the State of Israel, Jew and Arab, should categorically condemn it. Furthermore, all citizens of the State of Israel, Arab and Jew, should support the never-ending work of the Shabak in preventing terror attacks against Israel.

However, those statements do not make the actions of the Shabak, as they have been revealed during the pre-trial phase, any less troubling. The two accused young men, one of whom was a minor at the time, were brutally interrogated for nearly a month, a good deal of the time with no access to a lawyer, and subjected to extreme measures in order to extract confessions. The prosecution has now all but admitted that there were periods of unprecedented torture to Israeli citizens in the course of a crime investigation that would by law invalidate any confessions given during that period. Reading the descriptions of what took place is hair-raising. The abuse was such that the minor said he was willing to confess to anything and indeed, during a period of torture, he confessed to the actual firebombing. That “confession” was so factually problematic that even his interrogators admitted it was given only as a result of the extreme measures utilized. They took him back to the “interrogation room” until he gave a confession that seemed more “appropriate”.

It seems blatant that there was inadequate judicial and governmental oversight during the process. Judges routinely rubber-stamped extensions of detention for detainees who were subsequently released with no charges. Political leaders routinely gave impassioned speeches defending the interrogation methods, while simultaneously denying it was out of the ordinary. Yet now, the prosecution has finally conceded that the detainees were tortured (although they refuse to use that word) and that the confessions given during the worst abuse are indeed inadmissible as evidence. If confessions given during those types of interrogation are legally inadmissible, and thus worthless in a court of law, it makes one wonder why they abused the youth for naught. The prosecution has nonetheless asked the court to find admissible the confessions given between the most severe periods of torture. It is on this pre-trial issue that the court will be deciding this week. One can only hope that the court in Ramle finds that, just as confessions given during the actual sessions are inadmissible as evidence in a civilized society, so too should the confessions given between those periods, but under threat of resuming those tortures that the accused had already experienced. Under such circumstances, the accused is obviously willing to admit to anything to avoid a resumption of the torture.

This process has now dragged on for over 2.5 years, with the accused held in conditions worse than those of most terrorists. (See here, about his conditions) This is having its obvious effects on his psychological well-being.

Once the court makes clear that this “crime investigation” (on the lack of a true investigation, see here) was conducted inappropriately and these young men are released, an independent inquiry should immediately be launched to understand how such a travesty could take place within the democratic State of Israel, a state that ostensibly values human rights. Who gave the orders to abuse these young men, including minors, in manners never before used on Israeli citizens in the process of solving a crime?

There are methods of crime solving that should be used instead of forcing confessions. This case may involve a supposed “nationalistic” crime, but the tools available to law enforcement should have been used. It is unfortunate that Israel confessions are not only admissible as evidence in criminal proceeding, but they are considered the highest form of proof. Of note, Jewish law long ago realized the risk of using confessions and they are never admissible as evidence in a criminal proceeding. Even voluntary confessions are considered inherently untrustworthy (Maimonides, Hilchot Sanhedrin 18:6).

The injustice is so great and the violation of the rule of law so large that there should be an independent, high level investigation that examines the role of everyone in the chain of command. Who approved applying the “ticking bomb” legal loophole that permitted the torture and that was clearly fictional in this case? The prime minister was clearly aware of what was happening, then-defense minister Ya’alon announced early on that Jewish youth were responsible and encouraged the security service to use all means possible, then-Shabak head Yoram Cohen was in charge of the investigation, the justice minister claimed to be overseeing, and then-attorney general Weinstein signed off on the approval. All of them should be investigated. The role that they and others played should be examined and those who were derelict in their duties or misused their power for political or other motives should be held responsible.

A large group of rabbis has recently issued such a call, as have academics. Human rights, civil rights, and child rights organizations should be independently calling for such an investigation. When the basic human rights of any citizen is denied, we all suffer and we are all in potential danger, as individuals and as a country.

About the Author
Ari Zivotofsky is a professor of neuroscience at Bar Ilan University. Also trained as a rabbi and shochet, he has a masters degree in Jewish history. He has written extensively on topics of Jewish history, culture, and traditions, in particular in Mishpacha magazine and in his regular column (now running 20+ years) in the OU magazine Jewish Action.
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