Summary of an Israeli Supreme Court ruling (downloaded from www.court.gov.il) by Supreme Court President Aharon Barak, holding that the General Security Service (GSS) is not authorized to employ certain investigative methods that involve the use of physical pressure against a suspect. Methods disavowed include: the shaking of a suspect; holding him in particular positions for a lengthy period; and sleep deprivation. GSS investigators could, however, potentially avail themselves of a "necessity" defense if facing criminal charges for the use of prohibited interrogation methods. Still, "the necessity defense does not constitute a basis for authorizing the infringement of human rights." Justice Y. Kedmi wrote separately to suggest that the Court's order be suspended for one year, during which time GSS members "could employ exceptional methods in those rare cases of 'ticking time bombs,' on the condition that explicit authorization is given by the Attorney General."
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summary. of the Judgment Concerning the Legality of the
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. . The Co.urt. has held this day·.that the GerieralSe~rity. Service rGSS") is not· .
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..,." . . -. ~';';"'" ~;.authotized,· BCC(Sroing "to:'. the 'present state....of the..:·taw;. ·:to-.\employ~itain: ;;.:-1-" investigation metho~s that inyol~e the use. of physical pressure. against a . suspect. ..
. Several applications'were brought before the Sup~eme Court (sitting as' the' . 'High Court of Justic~), in 'which it was argued that certain methO'ds used by the GSS· '(for ··instance,. the shaking of a suspect,· holding him in particular .
. positions ·for.-a· lengthy ..period and sleep. deprivation) ar.e not legal.. This, . among other reas~f.ls.. is .due to the .Iack ~f authOrity. permitting .the use of · these inte:rrogatio.n 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 tnat GSS investigators ar.e endowed with the same . in~rr09ati.ori wwers:giveo to poli~ ·.investigatoJ:S:~The allthorlty ~challo.Ws the investigator to conduct a fair inv~tigation.does not·allow him to tortu're a person,or to treafhim 'in a cruel, inhuman or degrading marmer. The Court recognized that, inherently; 'even ~ fair interrogation is . likely to cause the
. suspect·. disc:orn.f9~..,11l.~: law•.dC?e~ not. .. ~owe~~~,;. ~an9~pn ~e y's:e. ~f.. ...._
.. int~rroga~on methods which' Infringe upon the' suspect's dignity, for an . inappropriate purpos.~,. or·beyond.·lt:\e n~~ss~ry m~ans. On ·thi~ b~si~ the Court he.ld 'that '. . . . . . '. . . .
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sleep. in a manner other than that which' is ·inherently. required' by the . . '. . '. interrogation:".' . .'.' . . .
I~....!d;:il:;,nll:., :~-e Court held thG~ ihe ",ecessity" defence. as it i3ppears in · article .34(1.1) of ·the Penal Law !wh;ch-negates' c~fI1inal Uabi~ty in certain.
circumstanc;;es],' . cannot con~titu1e a basis .for allowing GSSinvestigators to ',' .
emplOy interrogati.on ~~thod~ involving the .. use of physi.cal·pressure against·
tlie suspect. A GSS investigator may, however. potentially 'avail ~imself.of the
.~necessitf defence, under the. circumstances pr.ovid.ed by the law, if facing
~.. · crlminal charges 'for the 'use of prohibited interrogation methods. The' Attorney . . General may. instruct.himse.lf· with r:espect to ~e circumstances un~er which:
:': .' charges will.' not.be brol,Jght .agalnSt GSS investigators, .in' I.ight of the .: . ". ~
) .. . materialization of the conditions of "necessity.w" At the same time. :the . ·~·ec*-$sity· defenc;e. '''d~es not. C?~m'sti:tute ~. basis' .for: 'authorizing the' infringement' of. human rights: The mere' fact that a certain action does not
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constitute a criminal offence. under agiver'! sef of circumstances; does ,not ih , itself authorize the GSS to employ this method in, the course of its interrogations, ' ' '
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. ':," 'The j'udgnle~t'relatesto the unique'secUrity ',problem$ faCed by' the State' of
Israel since its founding and to the' requirements fer fighting terrorism. In light
, of the, above. the 'Court 'highlights the ,difficulty associated with deciding this,
in~tter. This hayil)g been said. the Court· must rule according, to the Jaw,and
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the'law"do'ei'fiof ~naoytGSS'investiQatotswiththe-a~~rity to apply-physlcal
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force. If the law, as it stands ,tOday, requires: amending.. this issue is for the Knesset (Legislature) -to, decide. _aC9Qrding to democratic', principles and , juri~priJderice. So held the. Cou~',., -, ,
...... "The power to enact ruies' and to act according to them r~uires legis[ative authonzation, by -legislation whose' object. is the power to, conduct interrogations.w:lthin _ttle boundaries of this, legislation', the Legis,lator, if he so desires, ,may express-his,views'on the sOciai,' ethical and pOlitical' problems. connected,' to--authorizing' the' use of' physical means" in an 'inteaogatiOn:..:eli~ng GSS' .investigators with ,the authority, to apply physical f~ce during'the interrogation of suspects, suspected of involvement in 'hostile terrorist activities. thereby harming 'th~ 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'
,:' iriterrogationS. and,' the scope , of, ~.mean&::,wbich' deviate from the, -:·ordinary" il1Yestigation rules·, is an' issue tha~ must be deCided 'by the ' , lBgislative branch. which represents' the People. It Is there that 'various
cplisiderations must .be weighed. The pOinted debate must occur there. It is . . there that the reqUired legislation mOlY te passed" provided. of course. that a
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': ,~\ ,:'law1rifringlr'ii4"'\ipon' the suspect's libertY Is "befitting the values of the state 'of. " , Israer; enacted for a, proper purpose, and to an eldent' no greater than is :' reqi..tired.",'M~e.8 to the Basic Law:. tiuman'Oignityand liberty).
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J~stice v: Kedmi, joined in the~.opinion of President,Barak. However. as to the
order to 'be issued by t~e Court, he e~pressed fror:n reasoning given in th~"
judgment, hi~ o~inion as fol1o~s: '. . ' '. -'. ,,' , ", , .'
-[D)eriving from the-will to, prevents, situation where·the "time,bc;mb will tick", 'before C?ur eyes_ and the, ~lale's hand will be shortened to help. I. suggest th~t :. ,th~-judgment be suspended "from coming into force for a period of one year. . OUring tli,at year. the GSS could employ except,i9nal inet~ods' in those rare , cases of 'i~ing time, bombs·. on 'the condition that explicit authorization is givenby~h~ Attomey GeneraL"
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