CAT/C/ISR/CO/4
page 3
comment No 2 (2007) that State parties’ obligation to prevent acts of torture or ill-treatment in
any territory under its jurisdiction must be interpreted and applied to protect any person, citizen
or non-citizen, without discrimination subject to the de jure or de facto control of a State party.
The Committee further notes (a) that the State party and its personnel have repeatedly entered
and established control over the West Bank and Gaza; (b) that, as acknowledged by the State
party’s representatives during the dialogue with the Committee, security detainees from the area
are, in substantial numbers, detained in prisons within the boundaries of the State of Israel; and
(c) that Israel admittedly maintains “full jurisdiction” over cases of violence in the territories by
Israeli settlers against Palestinians. Thus, the State party maintains control and jurisdiction in
many aspects on the occupied Palestinian territories. Furthermore, the Committee notes with
appreciation the State party’s affirmation that “an Israeli official is liable to Israel’s criminal
jurisdiction for any unlawful conduct committed inside or outside the territory of Israel, provided
that the official operates within his official capacity.” As to the lex specialis argument, the
Committee recalls that it considers that the application of the Convention’s provisions are
without prejudice to the provisions of any other international instrument, pursuant to paragraph 2
of its articles 1 and 16. Additionally, the Committee considers that, as stated by the International
Court of Justice in its Advisory Opinion, international human rights treaties ratified by the State
party, including the Convention, are applicable in the occupied Palestinian territories.1
12.
In any event, the Committee notes that the State party has acknowledged that its actions
in the West Bank and Gaza warrant scrutiny. It also notes that the State party has responded to
and elaborated on many questions regarding the West Bank and Gaza posed by the Committee in
the written list of issues and the oral discussion.
D.
Principal subjects of concern and recommendations
Definition of torture
13.
The Committee notes the State party’s explanation that all acts of torture are criminal acts
under Israeli law. Nevertheless, the Committee reiterates its concern expressed in its previous
concluding observations that a crime of torture as defined in article 1 of the Convention has not
been incorporated into Israeli domestic legislation.
The Committee reiterates its previous recommendation that a crime of torture as
defined in article 1 of the Convention be incorporated into the domestic law of
Israel.
Defense of ‘Necessity’
14.
Notwithstanding the State party’s assurances that following the Supreme Court’s decision
in H.C.J. 5100/94, Public Committee against Torture in Israel v. The State of Israel determined
that the prohibition on the use of ‘brutal or inhuman means’ is absolute, and its affirmation that
‘necessity defense’ is not a source of authority for an interrogator’s use of physical means, the
Committee remains concerned that the ‘necessity defense’ exception may still arise in cases of
‘ticking bombs,’ i.e., interrogation of terrorist suspects or persons otherwise holding information
about potential terrorist attacks. The Committee further notes with concern that, under Section 18
1
International Court of Justice, Legal consequences of the construction of a wall in the Occupied
Palestinian Territories, Advisory opinion of 9 July 2004.