Revise Your Syllabi: Israeli Supreme Court Upholds Authorization for Torture and Ill-Treatment

In: Journal of International Humanitarian Legal Studies
Smadar Ben-Natan PhD Candidate, Buchmann Faculty of Law, Tel-Aviv University; Visiting Scholar, Center for Middle Eastern Studies, UC Berkeley

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This paper reviews the recent decision of the Israeli Supreme Court in the case of Tbeish v Attorney General, in light of the 1999 landmark Public Committee against Torture in Israel (pcati) case, which prohibited torture and ill-treatment of detainees, but acknowledged necessity as a possible criminal defence for interrogators. Tbeish is not framed as a break from the past, or even as a change in the law, but I argue that it provides a new authorization for torture and ill-treatment. The Court upheld internal guidelines of the Israeli Security Agency (isa) that establish a ‘necessity procedure’ for the application of ‘special interrogation means’. The Court’s specific construction of the guidelines circumvents the unambiguous prohibition in pcati on general rules setting criteria for using special interrogation means, by turning the process into a supposedly ad hoc decision on each individual case without preexisting rules. Nevertheless, this paper argues, the decision approves a system of prior authorization for the use of violent means of interrogations. Creating a framework for an organizational decision, the guidelines relieve interrogators of personal responsibility for potentially unlawful acts by shifting the meaning and function of necessity from a criminal defence to a principle of governmental action. As such, they provide bureaucratic authorization and justification for acts which violate the prohibition against torture.

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