Judgment Concerning the Legality of the GSS' Interrogation Methods

Court	Supreme Court of Israel, Israel
Case number	H.C. 5100/94; H.C. 4054/95; H.C. 6536/95; H.C. 5188/96; H.C. 7563/97; H.C. 7628/97; H.C. 1043/99
Decision title	Judgment
Decision date	6 September 1999
Parties	Public Committee Against Torture in Israel Association for Citizen’s Rights in Israel Wa’al Al Kaaqua, via the Center for the Defense of the Individual Ibrahim Abd’alla Ganimat, via the Center for the Defense of the Individual Hat’m Abu Zayda, via the Center for the Defense of the Individual Abd al Rahman Ismail Ganimat, via the Public Committee Against Torture in Israel Fouad Awad Quran, via the Public Committee Against Torture in Israel Issa Ali Batat, via the Public Committee Against Torture in Israel The State of Israel
Categories	Torture
Keywords	interrogation, necessity defense, torture
Links	Judgment

Summary

During the 1990s, several complaints of unlawful physical interrogation methods by the General Security Service reached the Israeli Supreme Court. In 1999, it assessed the essential question posed in most of these complaints: was the GSS even allowed to conduct interrogations and if so, did their interrogation methods fall within the scope of torture as prohibited by Israeli and international law. The Court answered the first question in the affirmative and deduced from a general provision in Israeli law the GSS’ authority to interrogate. However, the Court also stated that the GSS was not authorised to use most of the interrogation methods presented to the Court. These included long sleep deprivation, shaking suspects, covering suspects’ heads, and having them crouch on their toes for five minutes intervals. The GSS had argued that the ‘necessity’ defense provided sufficient authorisation to use these interrogations, as information obtained from interrogation might prevent terrorist attacks. The Court did not agree, stating that while the necessity defense might be used by an individual investigator during criminal proceedings, it cannot provide authorisation prior to using the prohibited interrogation methods.

Procedural history

The case involves several complaints from both human rights organisations and individuals who were interrogated by the General Security Service (GSS). The applications were submitted between 1994 and 1999. The applicants protested against the physical means of interrogation employed by the GSS investigators. The applicants were also disputing that GSS was allowed to conduct interrogations under Israeli law.

Related developments

The Public Committee Against Torture in Israel reports on (legal) developments since the 1999 Supreme Court ruling. Recently, the Supreme Court rejected a petition, submitted by several human rights organisations, to cancel the exemption in law that allows the police and the GSS not to record their interrogations.

Legally relevant facts

The General Security Service (GSS) investigates individuals suspected of committing crimes against Israel’s security. Interrogations were conducted on the basis of directives regulating interrogation methods. These directives authorised investigators to apply physical means of interrogation, including, "forceful and repeated shaking of the suspect's upper torso, in a manner which causes the neck and head to swing rapidly, manacling of the suspect in a painful "Shabach position" for a long period of time, the "frog crouch" consisting of "consecutive, periodical crouches on the tips of one's toes," and other methods. GSS held that these methods were necessary for saving human lives, but human rights organisations and individuals allegedly subjected to these physical interrogation methods filed complaints against these practices (p. 1).

Core legal questions

Different arguments were raised by various applicants. In principle, however, all the applications raised two essential arguments: firstly, they held that there is no legal basis for GSS to conduct interrogations. Second, they held that the physical means employed by GSS investigators constituted torture, which is expressly prohibited under international law. The applicants rejected the GSS defense that physical means of interrogation are necessary, arguing that the doctrine of ‘necessity’ can only be invoked after a criminal offence has taken place. It cannot provide GSS investigators with authorisation before torture takes place, according to the applicants. The State countered that the government’s general and residual powers, as well as Criminal Procedural Law were sufficient basis for the authority of GSS investigators to interrogate those suspected of committing crimes against Israel’s security. It disputed that physical means employed by the GSS could be qualified as torture. It repeated that the means employed by GSS were legal due to the necessity defense. ‘Hence, in the specific cases bearing the relevant conditions inherent to the "necessity" defence, GSS investigators are entitled to use "moderate physical pressure" as a last resort in order to prevent real injury to human life and wellbeing.’

Specific legal rules and provisions

Art. of Basic Law: the Government.
Art. 2(1) of the Criminal Procedure Statute (Testimony).
Art. 34(k) of the Penal Law (1977).
Art. 8 of Basic Law: Human Dignity and Liberty.

Court's holding and analysis

The Supreme Court starts by stating that in a state adhering to the Rule of Law, interrogations are not permitted in absence of clear statutory authorisation (para. 18). It considered that the general provision in Article 2(1) of the Criminal Procedure Statute [Testimony], which authorises police officers to conduct interrogations, provided sufficient authorisation also for GSS investigations to conduct interrogations (para. 20).

The Court then considered the scope of this authorisation and the question whether the use of physical means in the course of the interrogation fell within this scope (para. 21). It outlined two values which can clash when crystallising ‘interrogation rules’. On the one hand lies the desire to uncover the truth, on the other hand is the wish to protect the individual’s dignity (para. 22). This led the Court to conclude that most of the physical means of interrogation mentioned in this case, such as prolonged sleep deprivation and covering a suspect’s head do not fall within the scope of the GSS interrogation authorisation (paras. 24-32). Neither can the authority to employ these interrogation methods be deduced from the ‘necessity defence’ (para. 36), although in the appropriate circumstances, individual GSS investigators may avail themselves of the necessity defence if criminally indicted (para. 35).