Supreme Court Judgment Concerning the Legality of the GSS' Interrogation Methods
(September 6, 1999)
Nine Supreme Court justices unanimously ruled September 6, 1999, that the interrogation methods of the General Security Service which involve the use of physical force are not legal. The GSS does not have the authority, for example, to shake a suspect, to hold him in painful positions for a lengthy period, or to deprive him of sleep. Supreme Court President Barak noted that this decision does not ease the task of coping with the difficult security reality prevailing in Israel. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. It is up to the Knesset to decide whether special legislation is required with regard to the interrogation methods of the GSS, subject to the provisions of the Basic Law: Human Dignity and Liberty.
The Court ruling came in the wake of applications from seven human rights organizations calling for an end to the practice of "shaking."
Summary of the Judgment
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:
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:
Source: Israeli Foreign Ministry