Background of the High Court of Justice's Decision

1 Jan 2012

In 1987, an official governmental commission, headed by former Supreme Court President Moshe Landau, was appointed to examine GSS interrogation methods. Four months later, the commission submitted a two-part report. Only the first part, which reviewed the nature of GSS activities, was made public. The second part - which remained secret - contained, among other things, guidelines for permissible interrogation methods.

The commission dealt with two subjects. The first was perjury in court testimony by GSS interrogators. Beginning in 1971, many hearings were held to examine the admissibility of confessions given in GSS interrogations (called a trial-within-a-trial). The commission determined that the GSS regularly lied to the court in these hearings, denying that it used physical force to obtain confessions. Perjury during the trial-within-a-trial continued at least until 1986, although the practice clearly violated section 237(A) of the Penal Law. The commission also cited a 1982 internal memo of the GSS expressly directing interrogators to lie in court regarding the use of physical force, and instructing them about the kind of lies that they were to tell. Despite its condemnation of the perjury, the commission recommended that no criminal action be taken against the GSS officials who committed perjury.

The second subject discussed by the commission was the interrogation methods used against persons suspected of "hostile terrorist activity." According to the commission, "the exertion of a moderate degree of physical pressure cannot be avoided." The commission's total condemnation of past practices of the GSS related only to perjury and not to the interrogation methods themselves. In other words, according to the commission, physical force may be used, but it is prohibited to lie about it. The commission agreed with the GSS that, without some kind of physical force, "an effective interrogation is impossible." However, it justifies this "necessity" in more explicit legal and moral terms.

The lawful solution was to adopt the "necessity" defense found in the Penal Law. This defense frees a person from criminal responsibility when acting to prevent grievous harm to him or herself or to others whom the individual was obligated to protect. The defense is available when certain criteria are met; the harm must be immediate, and the harm caused by the individual must be unavoidable and not disproportionate. The commission argued that the state can raise the identical defense, through its representatives, GSS interrogators. The well-known example is called the "ticking bomb," whereby a captured terrorist knows where a bomb has been planted and is about to blow up in a crowded area. In this case, physical force is justified to learn where the bomb had been planted. The legal basis for the necessity defense is founded on a moral basis: the duty to protect life prevails over the values safeguarded in the prohibitions set forth in the criminal law.

What amount of force is allowed? According to the commission, "The means of pressure should principally take the form of non-violent psychological pressure through a vigorous and extensive interrogation, with the use of stratagems, including acts of deception. However, when these do not attain their purpose, the exertion of a moderate measure of physical pressure cannot be avoided." In the second, secret part of the report, the commission sets forth instructions and restrictions that prohibit "excessive" physical force and require that the means used be commesurate with the anticipated danger.

Since the commission submitted its recommendations, in 1987, GSS interrogators have tortured thousands of detainees, intentionally inflicting severe pain and suffering. The torture was neither extraordinary nor limited to "ticking bombs." Quite the opposite; torture was a bureaucratic routine: there was standard equipment for inflicting torture, and careful recording of the times the pain and suffering were inflicted. Even the state's response in petitions against torture repeated, paragraph after paragraph, the routine justification for what were supposedly extraordinary acts. Supervision of the GSS did not succeed in preventing torture in Israel from becoming routine, systematic, and institutionalized.

B'Tselem estimates that the GSS annually interrogated between 1,000 and 1,500 Palestinians. It used methods constituting torture against some 85 percent of them, that, is, at least 850 persons a year.

B'Tselem does not have precise details on the degree of force that GSS interrogators were allowed to use, because neither the secret part of the Landau Commission report nor the special permissions granted by the Ministerial Committee for GSS Matters - which allowed more severe interrogation methods than those allowed by the Landau Commission - have been made public. However, the hundreds of testimonies given by Palestinian detainees to Israeli, Palestinian, and international human rights organizations, the affidavits submitted by detainees to the High Court of Justice, and the state's responses to petitions against torture, clearly illustrate the interrogation methods that were customarily used by the GSS. Representatives of the GSS and the State Attorney's Office confirmed the use of most of the methods, and the factual description appearing in the recent decision of the High Court further confirmed their use.

The methods of interrogation included several techniques: depriving the interrogee of sleep for a number of days by binding him or her in painful positions; playing loud music; covering their head with a filthy sack; exposing the interrogee to extreme heat and cold; tying them to a low chair, tilting forward; tightly cuffing the interrogee's hands; having the interrogee stand, hands tied and drawn upwards; having the interrogee lie on his back on a high stool with his body arched backwards; forcing the interrogee to crouch on his toes with his hands tied behind him; violent shaking of the detainee, the interrogator grasping and shaking him; using threats and curses, and feeding him poor-quality and insufficient amounts of food.

These methods were usually used in combination to increase the pressure used on the interrogee. Thus, a detainee was deprived sleep by means of loud music, the slanted chair, the tying-up, and at times by being forced to remain in positions such as standing or stretching his arms behind him. At the same time, the interrogators used methods of sensory deprivation by isolating him from the external world, playing loud music, and covering his head with a sack. To increase the physical pain, the interrogators tightened the hand cuffs as much as possible, compelled the interrogee to crouch on his toes, and shook him violently.

Many of those interrogated were subsequently released without being charged with an offense or were administratively detained, indicating their innocence. Many interrogees, whom the GSS defined as "ticking bombs," were tortured during interrogations on weekdays, while on weekends, when the interrogators did not work, the "bombs" stopped "ticking" until Sunday, when the process started over again.

The GSS also regularly interrogated, including torture, individuals who were not suspected of having committed a crime. These persons included political activists of Islamic movements, students suspected of being pro-Islamic, religious sages, sheiks and religious leaders, and persons active in Islamic charitable organizations, brothers and other relatives of persons listed as "wanted" (in an attempt to obtain information about them), and Palestinians in professions liable to be involved in preparing explosives - an almost infinite list. In a number of cases, wives of detainees were arrested during their husbands' detention, and they too were mistreated to further pressure their husbands. Also, GSS agents tortured Palestinians to recruit them as collaborators.

Since 1987, when the Landau Commission recommended that the GSS use psychological pressure and a "moderate degree of physical force," the Supreme Court heard hundreds of petitions of detained Palestinians who complained that physical force and psychological pressure had been used against them during GSS interrogations. Until the decision of September 1999, the High Court rejected a large percentage of the petitions, and effectively allowed the GSS to continue to use torture during interrogations. In isolated cases, the High Court issued orders to show cause and interim orders temporarily prohibiting the GSS from using all or some of the methods. The High Court regularly refused to rule on questions of principle, such as whether the GSS interrogation methods constituted torture and whether they are legal under Israeli and international law.