THE HIGH COURT OF JUSTICE DID NOT SANCTION TORTURE
(Article by Haim J. Zadok, "Yediot Ahronot", 3.12.96)
The decision by the High Court of Justice regarding administrative
detainee Mohammed Hamdan has been interpreted, in Israel and abroad, as
one which sanctions the General Security Service's use of torture and
other improper methods during interrogations. A close examination of the
court's decision shows that this interpretation is without basis.
In his petition to the court, the detainee stated that the GSS employed
improper methods while interrogating him: he was, he claimed, shaken, and
made to sit on a low stool; his hands were tied behind his back, a bag was
pulled over his head, he was deprived of sleep and so on. He asked that
the High Court of Justice ban such methods as forbidden by an section of
the criminal law (277), which disallows the use of force against an
individual for the purpose of making him confess a to an offense or
divulge information pertaining to a crime. At the detainee's request, to
which the GSS gave its consent, the court issued an interim order
forbidding the use of force against him until his petition could be heard.
The following day, at the request of the GSS, the interim order was
revoked.
The Hamdan case once again raises the following question: is the use of
force permitted in GSS interrogations, and if so - within what limits?
For many years, the GSS operated in a "twilight zone" outside the
boundaries of the law. Forbidden methods were employed in interrogations,
and the interrogators would systematically perjure themselves in the
courtroom when testifying about these methods. Credit is due to the the
Landau Commission for ending this situation, and defining the principle of
legality for GSS actions: the GSS is not above, outside or alongside the
law. It must function within the bounds of the law.
The legal basis for the use of force by a GSS interrogators is the
"necessity" section of the criminal law (34.11). This section relieves of
criminal liability a person (any person, not only a GSS interrogator)
whose actions constitute a offense - such as use of force for the purpose
of obtaining information - if these actions are immediately imperative in
order to save his own life or the lives of others, who are in imminent
danger of serious harm as the result of a given situation at the time when
this action is committed, and provided that there is no other possible
course of action. In other words: the use of force in an interrogation is
a criminal act, but a GSS interrogator will not be held criminally
responsible for it if, under the circumstances, his use of force was
immediately necessary so that lives may be saved. This is the "ticking
bomb" concept.
The "necessity" defense is not an Israeli invention; its origins are in
English and American law. The essential justification behind this defense
is that one may break the law in order to prevent a greater evil, injury
or disaster.
In the case of Mohammed Hamdan, the court was satisfied there was a
well-founded suspicion that the detainee possessed essential information,
which, if obtained immediately, could stop a terrible disaster from
occurring, save lives and prevent large-scale terrorist attacks. Under
these circumstances, the court no longer saw justification for the interim
order which completely forbade the GSS from using force of any kind. The
court, however, did not give the GSS carte blanche approval for the use of
force in interrogations in general, nor in Hamdan's interrogation in
particular. Its decision meant only that the interim order was revoked.
The court emphasized that it had not been given any information regarding
the interrogation methods the GSS wished to employ, was not expressing an
opinion regarding these methods and was not taking a stand regarding the
extent and applicability of the "necessity" defense. The GSS is solely
responsible for ensuring - and justifying - that Hamdan's interrogation be
conducted within the boundaries of the law.
On this essential question - what a GSS interrogator is and is not
permitted to do within the "necessity" defense - the courts have not yet
issued a ruling. The Landau Commission's recommendations and the "permits"
which the Ministerial Committee grants from time to time or extends can at
most be considered guidelines and suggestions, and do not serve as a
ruling which determines what is allowed and what is forbidden.
One of these days, the Supreme Court will be required to confront this
issue. One can imagine two possible scenarios in which the issue could
come before the court. In the first, a detainee complains to the
Attorney-General that force was used against him; the Attorney-General
decides that the interrogator's actions exceeded what is covered by the
necessity defense and decides that the interrogator should be prosecuted.
In the subsequent trial, the applicability of the necessity defense would
be examined. Another possibility is that the Attorney-General decides not
to prosecute the interrogator, since he believes him to be covered by the
necessity defense; the detainee petitions the High Court of Justice and
requests that the Attorney-General be instructed to prosecute the
interrogator. The issue of the necessity defense's extent and
applicability would then be subject to an authoritative judicial
resolution.