Israeli High Court of Justice Rejects Contempt of Court Motion on the use of Torture

In a recent decision, the Israeli High Court of Justice (hereinafter: "HCJ"), rejected a contempt of court motion brought against the Government of Israel and the Israeli Security Agency (hereinafter "ISA") for the alleged continued use of systematic methods of torture despite the precedent setting decision of the HCJ, which banned the use of such methods.

The motion was rejected on procedural grounds: the HCJ held that it is not possible to use contempt proceedings with regard to declarative judgment (such as the aforementioned precedent). Arguably, the case illustrates the difficulties of enforcing judgments that restrict counter-terrorist governmental measures.

On September 6, 1999, the HCJ decided in a landmark judgment[1] that ISA investigators have no legal authority to use coercive methods of investigation.[2] Moreover, it declared that the principle of necessity cannot be employed as the legal basis for the use of such methods, or as the legal basis for guidelines for the ISA investigators on when and how such methods may be used.

The Torture Case has been widely viewed as an important decision prohibiting the systematic and institutionalized use of torture and cruel and inhuman treatment as methods of investigations in Israel. Nevertheless, in its decision, the HCJ acknowledged the possibility of a "Ticking Bomb" scenario, and held that in such situations, should a certain investigator decide to employ coercive measures, the principle of necessity could be applied, but only as ex post facto criminal defense. In such a case, the Attorney General would decide whether or not to prosecute the investigator and courts whether or not to convict him or her.

Still, according to the Public Committee against Torture in Israel, the Association for Civil Rights in Israel, and Hamoked – Center for the Defence of the Individual (hereinafter: "the Petitioners"), the ISA has adopted formal procedures – under the direct authorization of the ISA Director and the Israeli government – that explain when and how to use prohibited methods, which involve physical and physiological forms of pressure, while remaining under the protection of the principle of necessity. According to these procedures, investigators must apply for ex ante permission from their supervisors and, in certain cases, from the ISA Director himself. The Petitioners claimed that the existence of such regulations and ex ante permission under the necessity principle contradict the position adopted by the HCJ in the Torture Case.[3] As a result, the Petitioners have filed a motion alleging that the ISA and the Government of Israel are in contempt of the HCJ decision in the Torture Case, and have sought an arrest warrant against the former Israeli Prime Minister, Ehud Olmert, and the ISA Director, Yuval Diskin; they also asked the Court to fine the Israeli Government and the ISA for their unlawful conduct.

In her decision,[4] the President of the HCJ, Justice Beinisch, rejected the motion on procedural grounds, holding that it is impossible to determine contempt of court when dealing with a declarative ruling such as the one adopted in the Torture Case.

Justice Beinisch also wrote that the factual basis presented in the Petitioners' motion was incomplete. If the claims that the Petitioners brought are accurate, then the situation must be further examined; but this can only be done through a direct legal petition and not through the contempt of court procedure.

The Petitioners' motion suggests that even when the HCJ declares certain norms as absolute and bans their violation, the appropriate authorities will not necessarily follow such proscriptions scrupulously. . Although the factual basis presented by the applicant NGOs may indeed be incomplete, it at the very least raises concerns about the degree of compliance of the Israeli authorities with the 1999 HCJ judgment.

This issue demonstrates one of the conflicts that democracy encounters in its struggle against terrorism. The State's security services are expected to do everything within their power to prevent future terrorist attacks, while the legal system is expected to restrain them. However, when there is strong social pressure to bend the law in order to improve security, the restraining system may be reluctant to intervene. Hence, a gap is created between the formulation of the law in the books and the actual application of the law.

[1] HCJ 5100/94 Public Committee Against Torture v. State of Israel (hereinafter: "the Torture Case")

[2] In the decision, the HCJ acknowledged that ISA investigators hold the same investigative powers and authority as police investigators.

[3] It is important to emphasize that the motion was not directed against the interrogation techniques themselves (since the Torture Case already declared these actions to be illegal), but rather against the existence of a procedure facilitating the grant of permission to apply such measures. The Petitioners stressed that in the Torture Case, the HCJ appeared willing to tolerate only ad hoc usage of such methods by individual investigator during "ticking bomb" situations and not as part of official ISA policy.

[4] HCJ 5100/94 Public Committee Against Torture v. State of Israel, 6.7.09 (In hebrew)