Public Committee Against Torture v. State of Israel
H.C. 5100/94 (1999)

  • Under Israeli law, the General Security Service (GSS) had authorization to apply physical force (aka torture), suspects during investigations.
    • The authorization only permitted the torture if it was deemed “immediately necessary for saving human lives.”
      • The directives instructed the officer in charge to weigh the severity and urgency of the attack that interrogation was intended to prevent before authorizing the torture, and to seek alternatives if possible.
  • A number of suspects sued in Israeli court seeking an injunction against the practice.
    • The GSS argued that the criminal defense of necessity (aka choice of evils) allowed them to authorize the practice.
      • Israeli law (Penal Code Article 34(a)) says, “A person will not bear criminal liability for committing any act immediately necessary for the purpose of saving the life, liberty, body, or property of either himself or his fellow person from substantial danger of serious harm…”
  • The Israeli Supreme Court granted the injunction.
    • The Israeli Supreme Court found that ‘ordinary’ cases of interrogation “free of torture, free of cruel and inhumane treatment of the subject, and free of any degrading handling whatsoever.”
    • The Court found that GSS investigators would be allowed to argue a necessity defense if criminally indicted. However, necessity did not allow for the authorization in advance or permanent directives setting out physical interrogation methods that may be used under conditions of necessity.
      • Basically, just because you can use necessity as a defense after the deed is done, doesn’t mean that you can use it as a pretext in advance.