The Court has held this day that the General Security Service (“GSS”) is not authorized, according to the present state of the law, to employ certain investigation methods that involve the use of physical pressure against a suspect.
Several applications were brought before the Supreme Court (sitting as the High Court of Justice), in which it was argued that certain methods used by the GSS (for instance, the shaking of a suspect, holding him in particular positions for a lengthy period and sleep deprivation) are not legal. This, among other reasons, is due to the lack of authority permitting the use of these interrogation methods.
The Court, in an extended panel of nine judges, unanimously accepted the applications before it. Speaking for the Court, Supreme Court President, Aharon Barak, held that GSS investigators are endowed with the same interrogation powers given to police investigators. The authority which allows the investigator to conduct a fair investigation does not allow him to torture a person, or to treat him in a cruel, inhuman or degrading manner. The Court recognized that, inherently, even a fair interrogation is likely to cause the suspect discomfort. The law does not, however, sanction the use of interrogation methods which infringe upon the suspect’s dignity, for an inappropriate purpose, or beyond the necessary means. On this basis the Court held that:
"[t]he GSS does not have the authority to “shake” a man, hold him in the “Shabach” position [...], force him into a “frog crouch” position and deprive him of sleep in a manner other than that which is inherently required by the interrogation.”
Additionally, the Court held that the “necessity” defence, as it appears in article 34(11) of the Penal Law [which negates criminal liability in certain circumstances], cannot constitute a basis for allowing GSS investigators to employ interrogation methods involving the use of physical pressure against the suspect. A GSS investigator may, however, potentially avail himself of the “necessity” defence, under the circumstances provided by the law, if facing criminal charges for the use of prohibited interrogation methods. The Attorney General may instruct himself with respect to the circumstances under which charges will not be brought against GSS investigators, in light of the materialization of the conditions of “necessity.” At the same time, the “necessity” defence does not constitute a basis for authorizing the infringement of human rights. The mere fact that a certain action does not constitute a criminal offence, under a given set of circumstances, does not in itself authorize the GSS to employ this method in the course of its interrogations.
The judgment relates to the unique security problems faced by the State of Israel since its founding and to the requirements for fighting terrorism. In light of the above, the Court highlights the difficulty associated with deciding this matter. This having been said, the Court must rule according to the law, and the law does not endow GSS investigators with the authority to apply physical force. If the law, as it stands today, requires amending, this issue is for the Knesset (Legislature) to decide, according to democratic principles and jurisprudence. So held the Court:
"The power to enact rules and to act according to them requires legislative authorization, by legislation whose object is the power to conduct interrogations. Within the boundaries of this legislation, the Legislator, if he so desires, may express his views on the social, ethical and political problems, connected to authorizing the use of physical means in an interrogation....Endowing GSS investigators with the authority to apply physical force during the interrogation of suspects, suspected of involvement in hostile terrorist activities, thereby harming the latters’ dignity and liberty, raises basic questions of law and society, of ethics and policy, and of the Rule of Law and security. (...)The question of whether it is appropriate for Israel- in light of its security difficulties- to sanction physical means in interrogations, and the scope of these means- which deviate from the “ordinary” investigation rules- is an issue that must be decided by the Legislative branch, which represents the People. It is there that various considerations must be weighed. The pointed debate must occur there. It is there that the required legislation may be passed, provided, of course, that a law infringing upon the suspect’s liberty is “befitting the values of the state of Israel”, enacted for a proper purpose, and to an extent no greater than is required." (Article 8 to the Basic Law: Human Dignity and Liberty).
Justice Y. Kedmi, joined in the opinion of President Barak. However, as to the order to be issued by the Court, he expressed from reasoning given in the judgment, his opinion as follows:
"[D]eriving from the will to prevent a situation where the "time bomb will tick" before our eyes and the State's hand will be shortened to help, I suggest that the judgment be suspended from coming into force for a period of one year. During that year, the GSS could employ exceptional methods in those rare cases of "ticking time bombs", on the condition that explicit authorization is given by the Attorney General."