Torture Writ Large: The Israeli Occupation - Centre for World Dialogue http://www.worlddialogue.org/print.php?

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GLOBAL DIALOGUE Volume 12 ● Number 1–2 ● Winter/Spring 2010—Working the Dark Side

Torture Writ Large: The Israeli Occupation

LOUIS FRANKENTHALER

Louis Frankenthaler is Director of International Outreach at the Public Committee against Torture in
Israel (PCATI). The views in this article are the author’s alone.

he Israeli occupation of the Palestinian territories—now more than four decades old—represents
a distortion of law and morality. It can be compared to torture, not in terms of specific acts, but in
terms of what it means. The occupation represents a power relationship in which one side has
absolute power over the other. The weaker side is characterised primarily as a receptacle for pain:
although not completely powerless (as a torture victim is), the weaker side—here the entirety of the
Palestinian population—is fundamentally without power and thus largely denied meaningful access to
resistance in an effective way against the long-term brutality of the occupation. This understanding
should inform any discussion of the occupation and, correspondingly, it should guide people in forming,
towards the occupation, an ideological and political opposition that is absolute, much as torture is
opposed absolutely.

Human-rights non-governmental organisations (NGOs) in Israel and in the global community have
reported and continue to report on the systematic use of torture by nations that count themselves as
democracies, even though the use of torture is a direct contradiction of any claim to democracy. Israel is
one such country. Reports by human-rights groups chastise regimes that persist in using torture and even
offer strong critiques of the nature of any regime that would resort to torture, especially on a systematic
basis. Even so, we need to ask ourselves to what extent we as human-rights activists and workers actually
engage in a struggle against the ideologies that promote and permit the use of torture and the abuse of
human rights. I think that the very fact that human-rights NGOs engage in advocacy, public education
and protest indicates participation in a struggle against the anti-human-rights ideologies that continue to
invade and infect even the most democratic of societies.

Furthermore, it is necessary to understand the human-rights struggle as an ideological one that indeed
goes beyond merely pointing out the existence of abuses, but rather that links rights abuses with certain
ideological goals on the part of the abusive regime. This is true in any number of circumstances and
situations. It is clear, for example, that the opposition to health-care reform in the United States, and that
country’s implementation of the death penalty, are abuses based on ideological assumptions. In fact, the
use of capital punishment reveals ideological similarities between polities such as Iran, the United States,
China and others that each country’s government may wish to deny. So, too, when discussing the Israeli
occupation we need to think in terms of ideological context.

Torture and the Occupation

The occupation, as a human-rights abuse in and of itself, and its associated abuses, have context. They
do not exist in a vacuum, but rather because Israel sees itself as having a metaphysical right to
sovereignty over the territory it occupied in the war of 1967. This claim to territorial rights is
accompanied by a blatant disregard for the indigenous people of that territory—the Palestinians. This
attitude should bring to mind two historical parallels. One is the conquest of the Native American
population and the expropriation of their land in what is now the United States. The other is that of
slavery, both in the ancient world and the modern. The relationship between Israel and the Palestinian
individual is tantamount to a master−slave relationship. That is, the slave is a rightless person. He may
enjoy humane treatment by his master but such treatment is purely at the master’s whim. The torture

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victim is in a similar slave-like relationship in which no limits apply except for those observed by the
“sovereign” (the torturer) as an “act of grace”.1 This powerlessness of the Palestinians under occupation
makes the struggle undertaken by human-rights organisations difficult but all the more necessary; after
more than forty years in which there has been no improvement in the situation, the struggle needs to take
on a new and more comprehensive dimension.

Torture is an absolute manifestation of absolute power and has been described as “world destroying”.2
The torture victim, being at the torturer’s mercy, loses all sense of identity. The victim is denied the bare
minimum of human dignities—control over one’s own body. The victim is forced to act and to think
according to the dictates of his or her tormentor. Pain is capital, an asset for the torturer that is invested in
the destruction of the victim’s personhood. The Israeli occupation does much the same on a wider scale.
It is Palestinian society that is subjected to the torment of the master, in this case Israel. And Palestinians,
like many torture victims, have no means of redress against their tormentors. There is a high level of
impunity in Israel, where complaints of torture are “investigated” by the General Security Service (GSS),
the agency accused of the torture, or where Palestinian civilians are all too often killed by the security
forces without any subsequent investigation and no fear of prosecution for the perpetrators. On the other
hand, every time a Palestinian injures an Israeli, Palestinians feel the consequences or threat of
impending consequences almost immediately on an individual and collective basis.

Recent reports by Israeli human-rights bodies, especially those by the Public Committee against
Torture in Israel (PCATI), demonstrate that even in the face of international criticism, Israeli judicial
criticism (albeit far too weak and infrequent), and the absolute affront to both morality and law, torture in
Israel continues to be systematically applied during the arrest, interrogation and imprisonment of
Palestinian security detainees.

Israel’s Embrace of Torture

Torture is a part of Israel’s history and it seems to be an integral part of its security strategy. In 1987,
an official commission headed by a former chief justice of the Supreme Court, Moshe Landau, confirmed
the legality of torture (or as it is euphemistically referred to, “moderate physical pressure”) as far as
Israeli interrogations of security detainees were concerned. In practice, torture became official policy
following the publication of the commission’s report and it was rampant, especially in the course of
Israel’s suppression of the first Palestinian uprising, or intifada. Following a 1999 landmark decision by
Israel’s High Court of Justice, the level of torture was significantly reduced. This is an important point
because prior to the decision the GSS neither required nor sought any pretext to engage in violent
interrogations. However, the High Court confirmed in its decision that

the “necessity” exception is likely to arise in instances of “ticking time bombs”, and that the immediate need ...
refers to the imminent nature of the act rather than that of the danger. Hence, the imminence criteria is satisfied even
if the bomb is set to explode in a few days, or perhaps even after a few weeks.

With this, the High Court essentially enshrined the ticking-bomb scenario in Israeli law and
jurisprudence and institutionalised torture in Israel. Although the court clarified that necessity should not
serve as ex-ante legal authorisation for using torture, it was prepared to assume that necessity can serve
as a defence if a torturer is criminally charged. Further, the court expanded the time frame of the ticking
bomb. Instead of ticking for an hour or so as in many classic bomb scenarios, the detainee can tick for a
“few days, or perhaps even ... a few weeks”. The consequences of this are clear: PCATI has handled
cases in which so-called ticking bombs were tortured after being officially determined to present
imminent threats and also cases in which those not deemed to be ticking bombs have been abused.
PCATI is convinced, and motioned the High Court on this matter in 2008, that interrogators receive prior
approval to use “special interrogation methods” in certain circumstances and that this prior approval is
supported by the ticking-bomb excuse. Calls for investigation and prosecution by the victim or by PCATI
are either ignored or unceremoniously brushed aside, with a claim of necessity, while impunity becomes

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further entrenched in Israel’s legal and political ethos. In this way a sort of ritual has developed in which
complaints are made and the GSS investigates itself and finds neither fault nor culpability in its actions.

Exonerating Torture

The fact that there is no sufficient investigatory process or criminal and judicial review of instances of
torture runs counter even to the methodology discussed by a legal scholar like Oren Gross, who insists
that torture should remain absolutely prohibited but that “the way to reconcile an absolute legal ban on
torture with the necessities of catastrophic cases is through official disobedience”. Gross recognises the
problem of a priori authorisation for torture, but if the official sees adhering to the ban on torture as
“irrational or immoral” he should break the law, violate the ban, torture the suspect and then face the
consequences, knowing that the act was “extralegal” and that he is subject to prosecution. The ensuing
consequences would be determined by society. Society may choose to punish the torturer or, by
exercising “prosecutorial discretion not to bring criminal charges”, accept the act.3

There are several problems with this approach. As regards the Israeli situation, it is clear that Israel
claims to uphold the ban on torture and has set up a (fatally flawed) mechanism to check complaints. This
mechanism, though, is a classic manifestation of a primary problem with Gross’s reasoning: very often the
prosecutors and the investigators cannot be relied upon to uphold the integrity of the investigative process
because in effect they are in collusion with the torturers. In Israel, the High Court even declared that “the
Attorney-General can establish guidelines regarding circumstances in which investigators shall not stand
trial, if they claim to have acted from ‘necessity’.’’ Furthermore, in most places where torture occurs it is
systematic. Gross’s solution seems to turn the issue of institutionalised torture into a matter of individual
compliance or non-compliance with the law. The absolute ban, in such a case, essentially evaporates into
the air, and, as discussed below, the logic of employing this methodology would require an infrastructure
to facilitate torture on those “rare”, “catastrophic” occasions when torture would be “needed”. After all,
if we need to torture than we better send someone who knows how to do it ...

Training Torturers

With the institutionalisation of torture comes the need to employ a force of well-trained and efficient
torturers, as Jessica Wolfendale has observed. Drawing on the work of Ronald D. Crelinsten, Herbert C.
Kelman and Jean Maria Arrigo, she makes it clear that extracting “usable” information demands torture
of a far more sophisticated variety than when torture is used to terrorise individuals and populations. This
type of torture “requires finesse, skill, and discipline ... the ticking bomb torturer needs to be already
trained”.4

As noted above, Israel has accepted the ticking-bomb scenario as a real-world possibility that may
necessitate and legitimise torture. This entails that the state, to deal with such scenarios, must have to
hand a corps of professional torturers, their skills maintained over time. They need to learn and they need
practice. Our question must be: what does this mean for us? It means that in Israel there is an elite group
of professionals who are necessarily desensitised to the pain they inflict while skilfully dehumanising the
victim. But even more troubling is the fact that in order to train/educate the torturer, a pedagogy of
torture must be developed. Further, Wolfendale argues that the training involved in preparing the torturer
for the ticking-bomb scenario precludes confining torture to the parameters of the scenario precisely
because being prepared for the scenario means being prepared to torture, at all times, and to obey
uncritically an order to torture.

Unfortunately, the case of Israel is one in which Henry Shue’s 1978 forecast is realised: torture is seen
as “the ultimate shortcut. If it were ever permitted under any conditions, the temptation to use it
increasingly would be very strong”.5 Israel, like other modern nation states, has succumbed to this
temptation, to what David Luban has referred to as

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a set of assumptions that amount to intellectual fraud ... Ticking-bomb stories depict torture as an emergency
exception, but use intuitions based on the exceptional case to justify institutionalized practices and procedures of
torture. In short, the ticking bomb begins by denying that torture belongs to liberal culture, and ends by constructing
a torture culture.6

The Reality of Torture

“Torture”, even on the most basic understanding of the word, should conjure in us images of human
acts that are unconscionable—not necessarily those images of medieval torture that may immediately
come to mind, but of abuses that are equally cruel, yet possibly more insidious. Such torture occurs today
in Israel’s detention and interrogation centres. To put it simply, torture is the use of pain against an
individual in order to achieve a specific purpose—to elicit information, punish, coerce, or intimidate.
Furthermore, torture does not require that the pain inflicted be life-threatening, permanently damaging, or
only physical. The key element in determining whether torture has been committed is that the pain be
inflicted by a public official or agent and that the victim be in custody and thus unable to resist and
certainly unable to present a threat. The classic example of such a torture-situation is that of an individual
seated across from his or her interrogator, feet and hands bound while absorbing the blows of the sadistic
police or security agent.

Pain is inflicted in many situations that do not fit this archetypal picture of torture. Yet the methods
used fall equally within the definition of torture. In the case of Israel, Palestinian victims are denied sleep
between interrogation sessions, they are abused after being arrested by soldiers, kicked, beaten, and
blindfolded. Palestinians are forced to sit in painful positions and endure intentionally painful shackling as
well as standard beatings; they have even been sexually abused. They are subjected to sensory abuse—
extremes of heat and cold, and prolonged confinement in absolute darkness alternating with exposure to
glaring light. Threats against self and family are common; sometimes, as PCATI has described in its 2008
report “Family Matters”, a theatre of the macabre is staged in which the detainee is shown a family
member in the custody of an interrogator and told that the father, mother, wife or child will suffer too.7

Torture, then, can be seen as the state’s way of using the victim against himself and of causing
self-betrayal.8 Of course, after the torture ends, the victim may well be tried and convicted based on the
“evidence” gained in the interrogation. In fact, the Palestinian victim’s ordeal is one of the abject abuse
of rights, the abuse of human dignity, of personal and national sovereignty, and denial of the basic human
expectation of respect for one’s physical, psychological and political integrity.

Like the Palestinian security detainee, so, too, the entire Palestinian polity, under the occupation, is
subject to a tortured existence. The security suspect is both physically and psychologically broken down
and then expected to stand before his judges and accept the mockery of justice meted out to him.
Similarly, the Palestinian people are denied the basic rights of human dignity. Denied the right to move
freely, they are confined in the most painful and oppressive situations. They are turned against
themselves, some being coerced into collaboration. Many are forced from their homes, denied schooling,
access to hospitals, and contact with family and friends from whom they are divided by Israel’s illegal
separation wall in the West Bank. On the wrong side of the wall, lacking the magical magnetic pass card,
they are denied the right, taken for granted by those of us in the occupier society, to drive to another city
to visit a friend or just to go out to eat; the Palestinians are restricted in space, time and life. Like a
security prisoner who has his basic bodily functions—sleep, nutrition, movement—interfered with, the
ordinary Palestinian, too, is restricted. The chain of the occupation may afford a little more slack but its
goal equally is to constrict and confine.

Just as Israel spurns calls for the prosecution of those who torture Palestinian detainees, so, too, it
rejects calls for an end to the occupation—a real end that will lead to political parity and justice for
Palestinians in the same political space as their oppressors. Israel’s legal and political ethos is impervious

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to critique regarding Israel’s treatment of the Palestinian collective; Israel resists justice and scorns some
of the most essential concepts of democracy. Like its individual counterpart victimised in the
interrogation chamber, the Palestinian collective is left standing, unendingly and increasingly painfully in
line and in limbo as it waits in vain for the occupation to end.

It should be clear that I am using the torture that individual Palestinian security suspects suffer as a
metaphor for the overall abuse that takes place under the occupation. First of all, on the larger ideological
scale, torture is an affront to democracy and so is the occupation. Torture has no justification and cannot
be excused even in the direst of circumstances. Similarly, the occupation, especially in the way it has
manifested itself over more than forty years, is beneath contempt and utterly without justification. The
Israeli conquest of the Palestinian territories has outlived even the remotest of justifications for its
existence. Its perpetuation has opened that conquest up to the criticism of having gone beyond
occupation to annexation, expropriation, colonisation and even a form of political slavery. For this
reason, the occupation does not represent a state of war to which a “peace process” would be the
ultimate remedy. Rather, peace needs to be part of an ideological transformation of the situation and of
how the Israeli oppressor society views this situation. That is not to say that calls for peace—i.e., for an
end to the abomination of sending Israeli children to kill and be killed—should be scorned as egocentric
or self-centred. Such calls, even when lacking ideological maturity, should be welcomed, embraced and
transformed, because, if nothing else, at the very base of our efforts we are all trying to save our children.

The Human-Rights Community

Human-rights NGOs need to be active participants in this struggle against the occupation. This
struggle, while not a party-political one, is political all the same. It is political because it is a struggle
against a regime that denies power, equality, freedom, rights and sovereignty to its subjects. The Israeli
occupation and all its attendant abuses are conducted not by one political party, entity or branch of
government, or even by the government alone, but by Israeli political society as a whole. Each political
party that has held power in Israel—Labour, Likud, Kadima—and each branch of government, too, has
played an essential role in perpetuating the occupation, to the point where conventionally held views
regarding its culmination are no longer viable.

For this reason, just as the global human-rights community has built a massive base of opposition to
torture and other rights abuses, it needs now to expand on this struggle and to integrate a larger civil-
society perspective—one incorporating legal, social, ideological, developmental, gender and human-
security considerations—into its efforts. It is clear that torture in Israel continues and that “security
concerns” simply veil the ulterior motives for its use; likewise, the occupation is a veiled attempt to
expand territory for the benefit of Israeli Jews at the expense of Palestinians. It is therefore apparent that
the occupation will not “end” without a calculated non-violent, ideological struggle to expose its core and
bring about its transformation.

Indeed, this struggle is one for the transformation of the Israeli oppressor society. To adapt the
Brazilian theorist Paolo Freire, this may be understood as a “pedagogy of the oppressor” and a
“conscientisation”, a type of learning which includes taking action against oppressive elements in one’s
own life and in the society of which one is a part.9 That is, the occupation did not just occur and neither
do torture or other human-rights abuses. When abuses are perpetrated by a society that defines itself as a
democracy, they occur because they are allowed to and because they benefit the oppressor. The
privileged essentially make those who lack privilege invisible. But those with power must come to see
that their power-base is limited and founded on myths that offer no security and no democracy, not to
members of the oppressor society and certainly not to the oppressed.

Conclusion

This essay should not be seen as a criticism of human-rights work but rather as a challenge. The work

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that we in the human-rights NGO community do is a prime example of praxis, action that is informed, and
linked to certain values. We aspire to connect ideology, theory and action.

The comparison of torture and the occupation is not a one-to-one comparison. Both are of separate
dimensions, yet in terms of the occupation they are indivisible. Torture is a specific human-rights
violation that has its own very specific set of characteristics, legal definitions, and prohibitions under
international law. This article has sought to use metaphor to contextualise both torture and the
occupation. The pain that is inflicted by the occupation on innocent Palestinian civilians is certainly not
torture, but is nevertheless excessive and grotesque. Both torture and the Israeli occupation are illegal
and immoral. Torture is so all the time. Occupations may sometimes be “legal” under international law,
but the Israeli occupation has assumed such levels of mutation that it can no longer be recognised as
occupation under international human-rights law. But even if it is still recognised as occupation, the acts
pursued by Israel during its course are certainly illegal to the extent that they constitute war crimes.
Audrey Bomse, an American attorney who was involved in an anti-torture coalition in Palestine/Israel,
has noted that whether the issue is the occupation or the package of human-rights violations that come
with it, the violations “follow from the logic of occupation. It is possible to expose and combat—and
even minimize—human rights violations, but you can’t end them entirely without ending the
occupation”.10

ENDNOTES

1. For an extended examination of the similarities between torture and slavery, see Sanford Levinson,
“Slavery and the Phenomenology of Torture”, Social Research 74, no. 1 (spring 2007), pp. 149−68.

2. Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (Oxford: Oxford
University Press, 1985), p. 29.

3. Oren Gross, “Torture and an Ethics of Responsibility”, Law, Culture and the Humanities 3, no. 1
(February 2007), pp. 44−5.

4. Jessica Wolfendale, “Training Torturers: A Critique of the ‘Ticking Bomb’ Argument”, Social
Theory and Practice 32, no. 2 (April 2006), p. 272.

5. Henry Shue, “Torture”, Philosophy and Public Affairs 7, no. 2 (winter 1978), p. 141.

6. David Luban, “Liberalism, Torture, and the Ticking Bomb”, Virginia Law Review 91, no. 6
(October 2005), p. 1427.

7. Aviel Linder, “Family Matters: Using Family Members to Pressure Detainees under GSS
Interrogation”, Public Committee against Torture in Israel, Jerusalem, April 2008
[http://www.stoptorture.org.il/files/Fmily%20Matters%20full%20report%20eng.pdf].

8. See Scarry, The Body in Pain.

9. For more on this line of thinking, see Ann Curry-Stevens, “New Forms of Transformative
Education: Pedagogy for the Privileged”, Journal of Transformative Education 5, no. 1 (January 2007);
Steven P. Schacht, “Teaching about Being an Oppressor: Some Personal and Political Considerations”,
Men and Masculinities 4, no. 2 (October 2001); and Michael Kimmel, “Toward a Pedagogy of the
Oppressor”, Tikkun, November/December 2002.

10. Audrey Bomse, “Torture and the Occupation”, Guild Practitioner 63, no. 4 (fall 2006), p. 208.

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