Torture and ill-treatment as perceived by Israel’s High Court of Justice

Published: 
1 Jan 2011

On 6 September 1999, the High Court of Justice gave its decision in a number of petitions against the State of Israel and the ISA, in which the petitioners requested the High Court to prohibit the use of certain interrogation methods that constitute ill-treatment and even torture.  At the time, the government permitted the ISA to use these methods, in reliance on the recommendations of the commission of inquiry headed by the retired Supreme Court Justice Moshe Landau. The Commission held that ISA interrogators were allowed, based on the necessity exception in Penal Law, to use "psychological pressure" and a "moderate degree of physical pressure" in cases of hostile terrorist activity.

The court's judgment changed the understanding of the law. In repudiation of the Landau Commission's position, the High Court ruled that the ISA does not have legal authority to use physical means of interrogation that are not "reasonable and fair" and that cause the detainee to suffer. "Human dignity," then-Supreme Court President Aharon Barak stated for the court, "also includes the dignity of the suspect being interrogated." However, a reasonable interrogation is likely to cause discomfort and put pressure on the detainee. Such discomfort, or unpleasantness, will be deemed lawful only if "it is a 'side effect' inherent to the interrogation," and not an end in itself, aimed at tiring out or "breaking" the detainee.

In the absence of express statutory provisions permitting the use of physical pressure, the court held, "the power to interrogate given to the ISA investigator by law is the same interrogation power the law bestows upon the ordinary police investigator." Accordingly, the use of "physical means" by the ISA is illegal, inasmuch as they are not part of a reasonable interrogation, violate the detainee's human dignity, which is enshrined in the Basic Law: Human Dignity and Liberty, and is a criminal offense under the Penal Law.

With these principles as a guide, the High Court examined four specific investigation methods used by the ISA: shaking; forcing the detainee into the “frog” crouch; the "shabah" position; and sleep deprivation. Regarding the first three methods, the court held that they deviate from a reasonable interrogation and do not serve legitimate purposes, such as preventing communication between interrogees, and they are, therefore, prohibited interrogation methods and the ISA is not empowered to use them, whatever the circumstances. Regarding sleep deprivation, the court held that the ISA may use the method if it is a "side effect" of the interrogation, but not if it is used as a means of pressure.

The High Court's holding on the ISA's powers and the legality of its interrogation methods is generally proper and comports with international law. However, the High Court erred in holding that ISA interrogators who exceeded their authority and used forbidden "physical pressure" can avoid criminal responsibility if it is subsequently found that they acted "in the proper circumstances." The court relied on the necessity defense set forth in the Penal Law.

The state based its position on the Landau Commission's conclusions, which included, inter alia, the opinion that the necessity defense grants ISA agents automatic, prior authority to use physical pressure on detainees in certain circumstances. The High Court rejected this position, stating that the necessity defense "deals with deciding those cases involving an individual reacting to a given set of facts," so it cannot serve as the source of a general administrative power. It is “only” a defense to criminal responsibility, claimed after the fact.

The justices avoided ruling expressly that the four methods the court had examined were torture, or even ill-treatment, although such a determination appears obvious in light of the description of the methods accepted by the court and the precedents established by relevant official international bodies. Presumably, the court avoided declaring the methods torture or ill-treatment because such a finding would have rendered its judgment incompatible with international law, which requires states to prosecute and punish perpetrators of torture and ill-treatment and forbids them to cite "exceptional circumstances" as a justification for such actions. 

Also, the norm inherent in allowing the necessity defense in certain cases of torture or ill-treatment has an extra-judicial significance: it sanctions torture or ill-treatment on the grounds that the act was, under the circumstances, correct given that it was intended to prevent the occurrence of a much worse danger. It is not surprising, therefore, that the justices avoided expressly stating that the methods described in its decision constitute torture or ill-treatment. However, this avoidance cannot blur the regrettable fact that the highest court in the land legitimated, if only by implication, the use of torture and ill-treatment.

The High Court aggravated matters by failing to carefully delineate those "proper circumstances" in which the necessity defense is available, leaving an opening for broad interpretation by the ISA and its legal advisors, and for the slippery slope leading to an increase in torture and ill-treatment.