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Human rights organizations, including HaMoked, submit a motion under the Contempt of Court Ordinance regarding the breach of the Order Absolute given in their 1994 petition to prohibit the use of torture and abuse in ISA (GSS) interrogations: Testimonies gathered since the judgment was issued indicate that the use of violence in interrogations has never stopped and that ISA investigators continue to use illegal interrogation methods under the "necessity defense"

On 6 September 1999, the High Court of Justice (HCJ) published its judgment in a number of petitions, including one filed by HaMoked – Center for the Defence of the Individual against the State of Israel and the Israel Security Agency (ISA, formerly known as GSS). The petitions sought to prohibit the use of interrogation methods which constitute prohibited abuse and torture. The judgment changed the legal situation which had existed up to that point on the issue of ISA powers of investigations in cases of terrorism suspects. 

The HCJ's main conclusion was that the ISA had no legal power to use "physical means of interrogation" which exceed the rules of a "reasonable and fair" investigation and which cause suffering to the interrogated person. The judgment established that "the power to interrogate given to the GSS investigator by law is the same interrogation power the law bestows upon the ordinary police force investigator," meaning that the use of "physical means" by the ISA is illegal as it exceeds the principles of a reasonable investigation, infringes on the victim's right to dignity which is enshrined in Basic Law: Human Dignity and Liberty and constitutes a criminal offence under the Penal Law. 

Despite all this, the HCJ ruled that ISA investigators who exceed their authority and use physical pressure would not be held responsible if it is revealed, in retrospect, that such use was carried out in "appropriate circumstances." Such an exemption is based on the necessity defense recognized in the Penal Law.  The meaning of this ruling is that the decision to use physical force during an interrogation would be entirely at the discretion of the individual ISA investigator when he feels he must break the law in extreme circumstances. It would be carried out without any legal backing, based on the faith that the necessity defense would exempt him from liability when the matter is brought to review in a criminal proceeding. 

The HCJ's assumption that an investigator might come under the necessity defense (in a criminal framework, when brought to trial) in certain cases stands in contrast to international law which establishes that no circumstances justify torture. In any case, even under the HCJ's ruling, it is an extremely limited defense: it does not allow torture, but rather may offer the investigator protection from criminal punishment for actions carried out as improvisations rather than systematically.  

Over nine years have passed since judgment was rendered and instead of ceasing the illegal practice of torture, the ISA has adopted a "necessity investigation" procedure: a procedure which is put into practice ahead of time and serves as a priori authorization for investigators to use exceptional, illegal physical means of investigation which had been struck down in the judgment. In their motion, the Petitioners stress that even according to the judgment itself, the necessity defense would always be presented after the fact. The provision of a guarantee of protection from liability in advance, on the part of the persons in charge, is tantamount to giving prior approval to illegal activity. 

The Petitioners note that disobeying the judgment has repercussions reaching beyond the ISA's activity. The legal system often relies on statements which were extracted through the use of unacceptable means. In so doing, as the motion states, the Courts "add insult to injury by essentially allowing torture, which is in and of itself a crime against humanity under international law, in order to establish grounds for indictments on grave charges which carry heavy punishments. Due process is not possible where the cries of the tortured reverberate from the cellars. One cannot extract evidence fit for conviction from the nefarious act of torture. The Courts allow the crime of torture to invade the criminal procedure, contaminate it and turn it into an empty procedure, a ritual, and, at the end of the day, lead to miscarriages of justice and false confessions." 

To view the motion under the Contempt of Court Ordinance (Hebrew) 

To view the judgment dated 6 September 1999 

To view the report published by B'Tselem and HaMoked dated May 2007 

To view the report published by the Public Committee against Torture in Israel dated February 2008 (Hebrew) (02) 627 1698   (02) 627 6317

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