A Veil over Torture: Israel’s “Necessity Defense”
Israel’s appearance before the Committee against Torture (CAT) in May 2016 was marked by several dramatic moments. One of them was a pointed question by the chairperson during the last session. He wondered how Israel’s use of the so called "necessity defense" could be consistent with the absolute prohibition against torture - “is it, in fact, a relative prohibition?” he wondered. The question hung in the air, unanswered. This tension between Israel’s superficial adherence to the prohibition and its use of the necessity defense is at the root of the current legal anomaly in Israel; and the way forward begins with an unveiling of the reality behind the use of the necessity defense.
The road was paved in 1999. In the milestone decision by the Israeli Supreme Court HCJ 5100/94, The Public Committee against Torture in Israel v. the State of Israel. The court stated that torture and cruel, inhuman and degrading treatment (hereafter: CITD) are prohibited. It also banned explicitly certain interrogation methods and determined that the state has no authority to establish ahead of time directives governing the use of physical measures in interrogations. Yet the court also determined that the necessity defense clause in the penal law, which grants protection to a defendant in a criminal trial, could apply retrospectively to Israel Security Agency (ISA) interrogators who applied physical interrogation methods in a “ticking bomb” situation.
This ruling created a new legal situation which led the Ministry of Justice to issue guidelines regarding the application of the necessity defense in a particular case, and the circumstances in which ISA Interrogators would not be indicted. These two developments - the HCJ ruling permitting the use of the necessity defense in interrogation situations, and the guidelines directing its application in practice, created a certain reality on the ground.
What does this reality look like? During the interrogation a detainee may find can be classified as an “interrogee under the necessity defense”. In practice the records of the Public Committee against Torture in Israel (PCATI) indicate that the use of this category is determined not just by the level of threat; interrogees who do not cooperate with the interrogation are more likely to be placed in this category. If he or she is seen as an “interrogee under necessity defense”, a specific kind of interrogation - i.e., “necessity interrogation” - will be employed. These interrogations include the use of physical torture, or as the state calls them “special measures”. Although the interrogation methods are classified, from testimonies received in PCATI during the last decades we can say that they include a combination of sleep deprivation, threats, incommunicado detention and holding the interrogee in different stress positions (such as the “banana position” and the “frog position”) repetitively. ISA interrogators know that they can resort to these accepted methods, and rely on the necessity defense to protect them from criminal indictments.
Moreover, the legal regulation of the necessity defense leads to frequent use of this kind of interrogation. Although the state refused to provide the CAT with information regarding the number of detainees interrogated under the “ticking bomb” scenario, PCATI alone documented a significant buy cipro online number of cases every year. Interestingly, the legal guidelines provided to ISA interrogators explicitly state that they do not apply to interrogation means which constitute ‘torture’ as defined in the Convention against Torture. In other words, the Ministry of Justice determined that the necessity defense could be applicable only if the means employed did not amount to torture, implying that it would be applicable to other means such as CIDT.
A recent example of the application of the necessity defense to justify the use of torture can be seen in a response given by the State regarding a complaint of torture. Two months ago, the State decided to close with no criminal investigation the complaint of a necessity defense interrogee, alleging that there was indeed a necessity in this case. Furthermore, the State elaborated that in light of the threat presented by the interrogee, the interrogation methods were proportional and appropriate to the importance of the information sought. This statement is astonishing, not to say unacceptable, to any legal professional addressing these questions. By its nature, the concept of proportionality cannot coexist with the absolute prohibition. Indeed, the State accepts this implicitly; hence its argument that the techniques employed do not amount to torture.
The application of the principle of proportionality to interrogation means in detention demonstrates the State’s view of the prohibition against torture and CIDT. The only way that the State can have its cake and eat it - that it can carry on using these interrogation techniques while declaring its allegiance to the Convention Against Torture - is by ignoring the severity of these interrogations, and declaring that they fall short of torture, while ignoring the absolute nature of the prohibition also on CIDT.
Therefore the first question we need to consider as legal professionals can be boiled down to this: if we accept that certain techniques are employed, do they or do they not amount to torture? The State has spent significant energy on avoiding this question - an avoidance enabled by the excuse that the methods are classified. Yet in spite of this lack of open discussion, can any reasonable jurist conclude that the use of threats, sleep deprivation, stress positions and incommunicado detention does not constitute torture?
For fourteen years, the CAT has called in its concluding recommendations for the abolition of the necessity defense. The frustration in its continued and ineffective repetitions was apparent more than ever in Israel’s last appearance. The great sophistication of Israel’s legal system and the Jesuitical subtleties of its legal arguments have resulted in an impossible legal construction, whereby the absolute prohibition is assumed not to apply to CIDT, and torture methods are not defined as such. And yet this issue is ultimately irreconcilable: the necessity defense as it has been used in Israel for over two decades simply cannot coexist with the absolute prohibition of torture. The successive members of the CAT have been emphasizing this point for years. It is time for the State of Israel to hear - and act upon - their call.
Efrat Bergman-Sapir
Legal Director of the Public Committee Against Torture in Israel (PCATI)