About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

10 J. Int'l Human. Legal Stud. 41 (2019)
Revise Your Syllabi: Israeli Supreme Court Upholds Authorization for Torture and Ill-Treatment

handle is hein.journals/jihuleg10 and id is 41 raw text is: JOURNAL OF INTERNATIONAL HUMANITARIAN LEGAL lU MANTIARrAN BRILL STUDIES 10 (2019) 41-57 LEGAL STUDIES NIJHOFF brilicom/ihis Revise Your Syllabi: Israeli Supreme Court Upholds Authorization for Torture and Ill-Treatment Smadar Ben-Natan PhD Candidate, Buchmann Faculty of Law, Tel-Aviv University; Visiting Scholar, Center for Middle Eastern Studies, UC Berkeley smadarbn@berkeley.edu Abstract This paper reviews the recent decision of the Israeli Supreme Court in the case of Theish v Attorney General, in light of the 1999 landmark Public Committee against Tor- ture in Israel (PCATI) case, which prohibited torture and ill-treatment of detainees, but acknowledged necessity as a possible criminal defence for interrogators. Theish is not framed as a break from the past, or even as a change in the law, but I argue that it provides a new authorization for torture and ill-treatment. The Court upheld internal guidelines of the Israeli Security Agency (ISA) that establish a 'necessity procedure' for the application of 'special interrogation means'. The Court's specific construction of the guidelines circumvents the unambiguous prohibition in PCATI on general rules setting criteria for using special interrogation means, by turning the process into a sup- posedly ad hoc decision on each individual case without preexisting rules. Neverthe- less, this paper argues, the decision approves a system of prior authorization for the use of violent means of interrogations. Creating a framework for an organizational decision, the guidelines relieve interrogators of personal responsibility for potentially unlawful acts by shifting the meaning and function of necessity from a criminal de- fence to a principle of governmental action. As such, they provide bureaucratic autho- rization and justification for acts which violate the prohibition against torture. Keywords torture, ill-treatment - necessity - ticking bomb - bureaucratization - occupation - interrogations - Israeli Supreme Court @ KONINKLIJKE BRILL NV, LEIDEN, 2019 DOI:10.1163/18781527-01001008

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most