One of the perennial problems facing liberal democracies with a domestic security threat is how to meet that threat without sacrificing some of the very values that make the society liberal and democratic. The Israeli Supreme Court was recently confronted with precisely this issue, and the judgment it reachednot surprisinglyaroused both strong approval and strong condemnation across Israeli society.
The specific matter under consideration by the court was the General Security Service’s use of so-called moderate physical pressure in interrogating suspected Palestinian terrorists. This included the violent shaking of the prisoner, tying him in painful positions, covering his head with a filthy hood, sleep deprivation and the constant blaring of loud music. The employment of such tactics by Israeli security forces had been sanctioned by a state commission some 12 years earlier, chaired by the Supreme Court president at the time, Moshe Landau.
Israeli human rights groups and lawyers representing detainees recently estimated that some 1,000 to 1,500 Palestinians were interrogated annually by the General Security Service (also known as Shin Bet), and that of this number around 85 percent were subjected to moderate physical pressure. In the years since the Landau commission edict, the further estimate was that approximately 10,000 Palestinian prisoners had been subjected to the same treatment, and that at least 10 had died as a result. In 1998 Amnesty International specifically condemned moderate physical pressure as a form of torture, even though the organization also heavily criticized tough interrogation tactics employed by the Palestinian Authority. Amnesty’s position was unequivocal: "Israelis and Palestinians must not accept human rights violations in the name of achieving peace’ or fighting terrorism."
On Sept. 7, 1999, the Israeli Supreme Court unanimously held that the use of moderate physical pressure was a violation of Israeli law and was henceforth to be banned totally as a method of interrogation. Among the many important aspects of this decision, one of the most striking was the way in which individuals from essentially the same political camp reacted in quite different ways to the court’s judgment. The new justice minister in the Ehud Barak government, Yossi Beilin, announced that he was "very proud" of the decision, while the prime minister himself said that the decision was problematic and that "a way must be found to allow for interrogation when bombs may be detonated, in order to save lives." Barak also said that he was inclined to support legislation introduced by an opposition lawmaker, Reuvin Rivlin, that would allow moderate physical pressure in "emergency" cases.
Not unexpectedly, a number of voices from the Israeli right condemned the court’s action. A former Shin Bet chief, Yaakov Perry, commented caustically: "I have no doubt that persons suspected of terror activity...will feel safer, stronger, and more deterûined now." His stance reflected the view offered even earlier by David Bar-Illani, a spokesman for the former prime minister Benjamin Netanyahu, in reacting to Amnesty International’s criticism of Israeli interrogation tactics: "To refer to Israel’s use of moderate physical pressure as excessive in relation to the interrogation methods in other countries is the height of hypocrisy." At the same time, however, Dan Meridor, a former justice minister in a Likud government, said that the Sept. 7 decision "constituted a certificate of honor for the state of Israel," and he recalled that Menachem Begin had told security personnel in 1977 to use "wisdom rather than violence" in interrogations.
Even members of the court displayed mixed emotions about their verdict. The wording of their decision acknowledged that "deciding these applications weighed heavy on the court. Our apprehension is that this decision will hamper the ability to properly deal with terrorists and terrorism, which disturbs us. We are, however, judges. Our brethren require us to act according to the law." The court even allowed as how the Knesset should consider drafting relevant legislation if it wanted to override the ruling and allow moderate physical pressure.
This last comment was especially significant in that the Israeli Supreme Court had hesitated for a long time to rule on the issue of moderate physical pressure, feeling that this was an issue that should best be dealt with through the Israeli legislative process. Given the inability or the unwillingness of the Knesset to confront such a sensitive issue, the court evidently felt that it had no option but to issue a decision based on a reading of the Israeli legal code. Nevertheless, the breadth of the judgment surprised even many Israeli human rights activists, especially since the court categorically rejected any of the standard rationales for applying moderate physical pressure. This involved in particular the "ticking bomb" defense, that is, interrogations designed to prevent an imminent terrorist act. The most that the court would accept was that a "ticking bomb" defense could be used as a mitigating factor in cases brought against security personnel for violating its ruling.
The Israeli Supreme Court’s decision concerning the use of moderate physical pressure clearly stands out as a watershed case in Israel’s ongoing dilemma over how to deal with undeniable security threats without at the same time violating standard human rights provisions. The issue is particularly sensitive for Israel, given the fact that the state itself was born out of the unimaginable cruelties of the Holocaust. As a general matter, Israeli public opinion has in the past been inclined to grant the security forces considerable latitude in the measures they take to combat the terrorist threat. The occasional use of assassination to eliminate the leadership of radical Palestinian groups has, for example, generated relatively little comment.
Yet surely Eitan Felner, the executive director of B’tselem, the human rights organization that first focused attention on the interrogation methods used by Shin Bet, was on target when he summarized the importance of the Israeli Supreme Court’s decision. "What was at stake here was nothing less than Israel’s moral integrity and foundation as a democratic state, subject to the rule of law." The English writer Thomas Hardy once offered this simple admonition concerning the virtuous life: "Do not do an immoral thing for moral reasons." If this applies to the life of individuals, it applies to the life of nations as well, and the decision by the Israeli Supreme Court on Sept. 7 does honor to the Israeli commitment to this ideal.