Public Committee Against Torture v Israel

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel, Supreme Court.2

(Barak, President; Levin, Deputy President; Or, Mazza, Cheshin, Kedmi, Zamir, Strassberg-Cohen and Dorner JJ)

Public Committee Against Torture in Israel and Others
and
State of Israel, General Security Service and Others

Human rights — Torture — Prohibition of torture and cruel, inhuman and degrading treatment and punishment — Absolute character of prohibition — Interrogation techniques — Counter-terrorism — Use of physical force in interrogation prohibited in the absence of clear statutory authorization — The law of Israel

Summary: The facts:—The General Security Service (‘GSS’) was the main Israeli body responsible for conducting interrogations of persons detained on security-related charges, designed to foil and prevent terrorist attacks. In response to a series of scandals associated with allegations of torture of Palestinian suspects in Israeli detention, the government-appointed Commission of Inquiry Regarding the Interrogation Practices of the GSS with Respect to Hostile Terrorist Activities (‘Landau Commission’) issued a report in 1987, concluding that the GSS investigators were specifically authorized by the Minister of Justice to interrogate terrorist suspects on the basis of the Criminal Procedure Statute. The Landau Commission also endorsed the use of ‘a moderate degree of physical pressure’ in extreme cases of ‘necessity’, where saving of human lives and property required obtaining necessary information in order to thwart planned terrorist attacks. The basic interrogation guidelines were set forth in an annex to the Commission's report, which remained secret, and were approved by the government.

The GSS arrested and interrogated the six individual petitioners, who were suspected of ‘hostile terrorist activities’. The petitioners challenged the legality of certain physical interrogation methods used against the suspects—specifically shaking, tying up in the ‘Shabach’ position, the ‘Frog Crouch’, excessive tightening of handcuffs, exposure to noisy music, hooding and sleep

deprivation—on the ground that those methods were incompatible with international law, in particular the absolute prohibition of torture or cruel, inhuman, or degrading treatment or punishment. They also questioned the general authority of the GSS to investigate hostile terrorist activities and the specific authority to use physical means of interrogation in the absence of an unequivocal authorization from the legislature in conformity with the constitutional requirements.

The respondents asserted that the government had the power to issue directives authorizing the use of liberty-infringing physical means in interrogation of suspected terrorists and that the GSS investigators were duly authorized to use these methods. They also claimed that such methods were legal under Israel's domestic criminal law on the basis of the ‘necessity’ defence and were compatible with international legal standards as they did not cause excessive pain or suffering and thus did not amount to torture or ill-treatment prohibited in international law.

Held (unanimously):—The interrogation guidelines previously used by the GSS investigators were voided.

(1) The GSS investigators had a general authority to interrogate persons suspected of hostile terrorist activity. They derived their interrogation powers from Article 2(1) of the Criminal Procedure Statute, which had entitled police officers to hold enquiries into the commission of offences. On the other hand, the general administrative authority of the GSS to investigate did not include powers to apply physical means during the interrogation of terrorist suspects unless they were inherent in the very essence of interrogation. These means inevitably infringed a person's liberty and dignity and would therefore require a clear and explicit statutory authorization in conformity with constitutional requirements. Such authorization by law did not exist for the specific interrogation methods used by the GSS at issue in this case; they were thus ultra vires and illegal (paras. 18–20).

(2) Only fair and reasonable interrogation methods would be allowed, depending on the circumstances of each case. A fair and reasonable interrogation would never involve the use of torture or other cruel, inhuman or degrading treatment, prohibited absolutely by international treaties to which Israel was a party. The interrogation methods examined in this case, namely violent shaking, holding and tying up in painful positions, sleep deprivation for lengthy periods, and sensory deprivation by hooding and playing of loud music, caused pain and suffering and were thus prohibited (paras. 21–32).

(3) While the ‘necessity’ defence provided for in Israel's Penal Law could be available ex post factum to the GSS investigators in case of a criminal prosecution, it could not ex ante justify the application of physical force during interrogation (paras. 33–8).

Per Justice Kedmi: The majority decision was correct in principle, but its implementation should be suspended for one year in order to allow the GSS to adapt its practices (pp. 312–13).

The following is the text of the judgment of the Court, delivered by President Barak:

The General Security Service [hereinafter the ‘GSS’] investigates individuals suspected of committing crimes against Israel's security. Authorization for these interrogations is granted by directives that regulate interrogation methods. These directives authorize investigators to apply physical means against those undergoing interrogation, including shaking the suspect and placing him in the ‘Shabach’ position. These methods are permitted since they are seen as immediately necessary to save human lives. Are these interrogation practices legal? These are the issues before us.

Background

1. Ever since it was established, the State of Israel has been engaged in an unceasing struggle for its security—indeed, its very existence. Terrorist organizations have set Israel's annihilation as their goal. Terrorist acts and the general disruption of order are their means of choice. In employing such methods, these groups do not distinguish between civilian and military targets. They carry out terrorist attacks in which scores are murdered in public areas—in areas of public transportation, city squares and centers, theaters and coffee shops. They do not distinguish between men, women and children. They act out of cruelty and without mercy. (For an in depth description of this phenomenon see the Report of the Commission of Inquiry Regarding the Interrogation Practices of the GSS with Respect to Hostile Terrorist Activities headed by Justice (ret.) M. Landau, 1987 [hereinafter the Report of the Commission of Inquiry]. See 1 The Landau Book 269, 276 (1995).)

The facts before this Court reveal that 121 people died in terrorist attacks between January 1, 1996 and May 14, 1998. Seven hundred and seven people were injured. A large number of those killed and injured were victims of harrowing suicide bombings in the heart of Israel's cities. Many attacks—including suicide bombings, attempts to detonate car bombs, kidnappings of citizens and soldiers, attempts to highjack buses, murders, and the placing of explosives—were prevented due to daily measures taken by authorities responsible for fighting terrorist activities. The GSS is the main body responsible for fighting terrorism.

In order to fulfill this function, the GSS also investigates those suspected of hostile terrorist activities. The purpose of these interrogations includes the gathering of information regarding terrorists in order to prevent them from carrying out terrorist attacks. In the context of these interrogations, GSS investigators also make use of physical means.

The Petitions

2. These petitions are concerned with the interrogation methods of the GSS. They outline several of these methods in detail. Two of the petitions are of a public nature. One of these (HCJ 5100/94) is brought by the Public Committee against Torture in Israel. It submits that GSS investigators are not authorized to investigate those suspected of hostile terrorist activities. Moreover, they claim that the GSS is not entitled to employ those methods approved by the Report of the Commission of Inquiry, such as ‘the application of non-violent psychological pressure’ and of ‘a moderate degree of physical pressure’. The second petition (4054/95) is brought by the Association for Civil Rights in Israel. It argues that the GSS should be ordered to cease shaking suspects during interrogations.

The five remaining petitions involve individual petitioners. They each petitioned the Court to hold that the methods used against them by the GSS are illegal.

3. Petitioners in HCJ 5188/96 (Wa'al Al Kaaqua and Ibrahim Abd'alla Ganimat) were arrested at the beginning of June 1996. They were interrogated by GSS investigators. They appealed to this Court on July 21, 1996 through the Center for the Defense of the Individual, founded by Dr Lota Saltzberger. They petitioned the Court for an order nisi prohibiting the use of physical force against them during their interrogation. The Court granted the order. The two petitioners were released from custody prior to the hearing. As per their request, we have elected to continue hearing their case, in light of the importance of the issues they raise.

4. Petitioner in HCJ 6536/96 (Hat'm Abu Zayda) was arrested on September 21, 1995 and interrogated by GSS investigators. He turned to this Court on October 22, 1995 via the Center for the Defense of the Individual, founded by Dr Lota Saltzberger. He complained of the interrogation methods allegedly used against him, including sleep deprivation, shaking, beatings, and use of the ‘Shabach’ position. We immediately ordered the petition be heard. The Court was then informed that petitioner's interrogation had ended. Petitioner was subsequently convicted of activities in the military branch of the Hamas...

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