Omphalos

Back to the ‘Ticking Bomb’ Doctrine

By Yuval Shany
Wednesday, December 27, 2017, 9:00 AM

The Israeli High Court of Justice’s Dec. 12 in Abu Ghosh v. Attorney-General (which Elena Chachko for Lawfare last week) provides a good opportunity to reexamine the implementation of the prohibition against torture in Israeli law almost twenty years after the court’s landmark 1999 judgment in Public Committee Against Torture in Israel, which outlawed torture.

This post will provide background on the Public Committee decision and explain its contrast with Abu Ghosh before assessing the compatibility of the court’s ruling with Israel’s international legal obligations.

In the 1999 case, the state took the view that the necessity defense may grant the Israel Security Agency (ISA) legal authority to exercise “moderate physical pressure.” The court rejected that position and ruled that four methods of interrogation used by the ISA—violent shaking, Shabach's position (painful shackling to a low chair), prolonged “frog crouching” on the toes and sleep deprivation (in a manner exceeding the actual interrogation needs)—were all unlawful. Still, the court opined that a necessity defense (i.e., reasonable emergency measures needed to avert greater harm) might remain available to ISA interrogators in certain circumstances, and that the attorney general was authorized to instruct himself regarding the circumstances in which the state prosecutor should not prosecute an ISA interrogator.

Later that year, then-Attorney General Elyakim Rubinstein issued guidelines on deciding whether or not to prosecute ISA interrogators who used illegal interrogation methods. Among other things, the guidelines stipulate that the attorney general will consider information about the administrative levels that authorized the act, their involvement in the decision, and their discretion during its execution, as well as the conditions for taking the act, the methods of supervision over it and its documentation. The guidelines also state that the necessity defense shall not apply to interrogation methods that fall under the category of “torture” as defined in the .

At the center of the Dec. 12 decision are the allegations of As'ad Abu Ghosh, who was suspected of being part of Hamas's terrorist infrastructure in the Nablus area. Abu Ghosh alleges that ISA interrogators tortured him during an ISA interrogation in 2007: He was beaten (including by being slammed against the wall), held in painful body positions (his body was tied in a “banana” position, he was made to stand on tiptoes and he underwent a painful bending of the fingers), deprived of sleep, and subjected to severe psychological pressure (including threats to blow up his home and harm his family if he did not cooperate in the interrogation). On these facts, Abu Ghosh claimed that the state should initiate criminal proceedings against the interrogators who tortured him.

For its part, the state claimed that Abu Gosh's interrogation was held under conditions of necessity because he was suspected of possessing information about an impending terrorist attack. (Abu Gosh's interrogation did lead to the discovery of a “bomb laboratory” on the roof of his house in Nablus, the arrests of other suspects who provided information resulting two weeks later in the discovery of another “bomb laboratory” in the West Bank, and the finding of an explosive vest hidden in the heart Tel Aviv.) Moreover, the state denied the use of some of the interrogation methods claimed by Abu Ghosh and argued that the methods of interrogation that were actually used against him did not amount to torture under international law. According to the state, the question of whether or not certain interrogation methods constitute torture is subject to the attorney general’s interpretation.

The court's judgment confirms Attorney General Rubinstein's statement that the necessity defense cannot apply to methods of interrogation that amount to actual torture. However, an analysis of Justice Uri Shoham's opinion (which was the leading opinion in the judgment, the other two judges wrote short concurring opinions) shows that the court placed a very high threshold for challenging the legality of interrogation methods and adopted a broad understanding of the necessity defense.

First, the court attributed little weight to the medical opinion submitted by the petitioner, which was prepared five years after his ISA interrogation. (The opinion was prepared shortly after Abu Ghosh was released from Israeli prison after serving a criminal sentence for membership in a hostile organization, manufacturing explosives, and possessing firearms without a permit.) The medical opinion—signed by two physicians and a clinical psychologist—confirmed that Abu Ghosh still suffers from pain and neurological injury and that his medical condition largely support his allegations. Still, the court noted significant gaps between the initial complaint that Abu Ghosh submitted to the Israeli authorities through the International Committee of the Red Cross (ICRC) about the torture he underwent during the interrogation, and the content of his subsequent complaint that the medical opinion purported to support. In other words, the court held that since some of Abu Ghosh's complaints about the conduct of the interrogation were unreliable, the medical findings about harm caused by methods of interrogation that were contested were also unreliable. The court was also not persuaded that that Abu Ghosh's current health problems stem directly from the interrogation (and not from a pre-existing condition or subsequent illness or accident). The court further noted that only a small part of the medical findings in the opinion were documented in the prison's infirmary log and that the medical opinion did not indicate that the pain and suffering that Abu Ghosh experienced during the interrogation was serious enough to be considered prohibited torture as defined in the Convention against Torture.

The court also rejected a legal opinion submitted by a group of prominent international lawyers who testified that the methods of interrogation that Abu Ghosh claims to have undergone constitute torture under international law, since the legal proposition found in the opinion was premised on unreliable facts. The court also noted that the precedents set out in the legal opinion referred to cases that were much more severe than the case of the Abu Ghosh and could not establish that his interrogation amounted to torture. Moreover, the court took the view that methods of interrogation cannot be qualified as torture in the abstract; rather, such a determination can only be made in view of the individual circumstances of the case. In these circumstances, the court held that the state's decision not to open a criminal investigation—pursuant to the recommendation of the Ministry of Justice inspector charged with examining interrogees' complaints—was a reasonable decision.

Finally, the court held that the necessity defense applies in cases where there is a real danger of serious injury to a legally protected interest, even if the anticipated date of realization of the threat is not immediate, provided that the measure taken is proportionate (which includes a requirement for lack of alternative preventive measure). In Abu Ghosh, the court was of the view that the conditions for the necessity defense were met. The fact that the interrogators consulted their superiors during the interrogation (in accordance with the attorney general guidelines, which encourage the authorization of special interrogation methods by more senior officials) did not negate, in the eyes of the court, the ad hoc and urgent nature of the situation.

Arguably, the combined effect of following four factors reaffirmed or established by the Abu Ghosh judgment result in a significant dilution of the prohibition against torture or cruel, inhuman or degrading treatment in Israeli law:

  1. the existence of necessity as a defense against unlawful methods of interrogations not amounting to torture;
  2. the availability of an ex ante process of authorization, allowing interrogators to request and receive permission to employ exceptional interrogation methods;
  3. the imposition of a high evidentiary burden on interrogees who claim to have been tortured; and
  4. the introduction of a light burden of proof on the State when claiming that the necessity defense should be exercised.

This legal situation is, in my opinion, incompatible with Israel’s obligations under international law, and inconsistent with the need to effectively protect the fundamental rights of interrogees.

First, it is well-established under international human rights law that both the prohibition against torture (involving intentional infliction of pain and severe suffering) and the prohibition against cruel, inhuman and degrading treatment are absolute in nature; they cannot be derogated from under any circumstances. Thus, even if the interrogation methods used against Abu Ghosh “only” amount" to cruel, inhuman and degrading treatment (as the state claims by implication) then the starting point for the court should have been that the state unjustifiably violated his rights and must provide him with an effective remedy.

Second, even if it is possible to read Article 2 of the Torture Convention—which prohibits the justification of torture in all circumstance—as not precluding criminal law defenses in cases involving improper interrogation methods that do not amount to torture, such a legal construction must be construed in a very limited manner. The need to exercise extra care in exempting perpetrators of ill treatment from criminal sanction derives not only from the extraordinary importance of the right not to be subject to ill-treatment, but also from the unclear dividing line between torture and other forms of ill treatment. It is highly questionable whether the court's position on the conditions for application of the necessity defense meets this standard of care. According to the court, information about explosive devices that were produced and which could be used in imminent attacks is tantamount to a “ticking bomb” scenario—that is, a situation where there is a high degree of probability that (a) the most serious risk exists; and (b) that the risk is likely be realized immediately (or, at least, that there is a very limited temporal “window of opportunity” to avert the risk). In the present case, 16 days passed between the time in which aggressive interrogation methods were used against Abu Ghosh and the date on which the second interrogee, whose name Abu Ghosh gave, provided information that eventually led to the seizure of the explosive vest in Tel Aviv (the judgment does not disclose whether the interrogators had any information about the anticipated date of detonation of the vest). While that the interrogation of Abu Ghosh undoubtedly served very important national security interests, and that locating the explosive vest and the “bomb laboratories” were a great operational success that probably saved the lives of many Israelis, it is not at all clear that an imminent attack was highly probable and that there was no time to obtain from Abu Ghosh actionable information without the use of illegal interrogation methods. Hence, it is unclear whether reliance on the necessity defense was strictly proportional.

Third, the judgment implies that only extreme interrogation methods will be considered prohibited under international law and that a petitioner bears the burden of proving that extreme measures were used against him or her. This position is contrary to the prevailing view in international law, according to which recognition of the unique normative status of the prohibition against torture justifies a gradual lowering of the threshold of severity for what is considered prohibited torture over time. It is also contrary to the position that due to the inequality between the state and detainees held in its custody in access to evidence, the burden on a detainee who claims to have been ill-treated while in detention should be alleviated. These considerations are reinforced in the Israeli case, where there is no audio-visual documentation of ISA interrogations and where there exists a large gap between the hundreds of complaints that have accumulated over the years alleging that the ISA resorted ISA to illegal interrogation methods and the lack of any criminal proceedings against ISA interrogators. (There have been, however, a handful of disciplinary proceedings against interrogators.)

Although the court reviewed confidential materials submitted to it by the state authorities about the interrogation ex parte in the course of the Abu Ghosh proceedings, such a review does not remove concerns about the fairness of the way evidentiary burdens were allocated between the parties. It also does not remove concerns about the limited weight granted to the information connecting between Abu Ghosh's long-term medical problems and the special interrogation methods that were applied against him. (The state did not dispute that some special methods were in fact used in his interrogation.) Furthermore, the court's position that it should not criticize interrogation methods in the abstract, but rather their implementation in practice, places a particularly high evidentiary burden on petitioners in the absence of full audio-visual documentation of the interrogation.

Finally, the court’s is unpersuasive in holding that the authorization procedures to which special interrogation methods are subject do not negate their ad hoc and urgent character. At the heart of the Public Committee Against Torture in Israel judgment was the legal conclusion that it is impermissible to establish ex ante authority to employ special means of interrogation pursuant to the defense of necessity. Yet, in a situation where there is an administrative procedure that defines in advance the circumstances for the use of special interrogation methods, where the attorney general defines in advance the conditions for non-prosecution, and where no interrogator has ever been prosecuted, the effect of the ban on ex ante authorization appears almost meaningless. To be sure, while consultation of interrogators with senior officials is not unlawful—it is even desirable—the creation of a legal and bureaucratic pre-approval process runs contrary to the spirit of the 1999 judgment and to the principle of legality. This is another aspect of the Abu Gosh judgment which exacerbates a grim reality, in which a violation of the prohibition on torture or ill treatment by the ISA is not likely to lead to real legal consequences.