JURIST Guest Columnist Ron Dudai of the SOAS School of Law at the University of London (UK) says that a recent ruling by Israel's Supreme Court constitutes an important judicial recognition that giving discretion to state security services in fighting terrorism – in Israel, the US, or elsewhere – invites overreaching, abuse, and violations of human rights…
"Exceptional times call for exceptional measures” has been a common refrain in discussions about restrictions on civil liberties in the name of curtailing security threats. Torture, prolonged detention without trial or wiretapping without warrant are “normally” illegal, the argument goes, but when fighting terrorism, and when other alternatives are inefficient, they should be allowed in very narrow circumstances. A common counter-argument is that torture or prolonged detention is always illegal; this usually leads to discussions of the ticking bomb scenario and to the debating rhetorical question: “but aren’t there ANY circumstances under which torture or wiretapping should be allowed?”. The ensuing debate is rarely fruitful.
Yet another counter-argument is that of the “slippery-slope”. Leaving to one side the question of whether we can theoretically envisage a single case where torture would be legitimate, the slippery-slope proponents rely on a “policy argument”: once you allow torture (or detention without trial, or wiretapping without warrant) in one case, the rigid normative prohibition will inevitably be eroded, and you will end up using these methods all across the board. The drizzle of a few isolated cases will become a deluge.
Support for just such a policy argument has recently come from the Israeli Supreme Court. Given this Court’s rich — and controversial — jurisprudence on human rights and terrorism, it calls for attention.
The practice before the Court in this case was the Israeli Security Services’ “Neighbor Procedure”, colloquially known as the “Human Shields” case. According to this procedure, soldiers or police officers surrounding a house where a fugitive terrorist is hiding, in hostile Palestinian villages or towns, may ask a local Palestinian to enter the house, inform the fugitive he is surrounded and ask him to surrender. According to the official procedure, soldiers are allowed to ask a local person to do this only if all other possibilities short of an armed attack have been exhausted, and only if his agreement is “genuine” and not based on a perception of threat from the soldiers. According to the security services the procedure can save lives of Israeli soldiers, and also minimize risk to the fugitive himself and to other Palestinians who may be in the house. However, Israeli and Palestinian human rights organizations argued that the practice is illegal under international law and challenged it in the Supreme Court.
In the Court’s main opinion (of October 2005), Chief Justice Barak found the procedure illegal under international law, on the grounds that, inter alia, it violates the principle of distinction between combatants and civilians, and as under the circumstances a genuine agreement of the local civilians to assist the army would be impossible to distinguish from actions under threat. Yet the main interest comes from separate opinions written by the Court’s two other most senior Judges, who found that even if under narrow circumstances the act itself could be legitimate, the procedure should not be approved by the Court because this formal approval would be the beginning of a slippery slope.
Justice Beinish, who in May will replace Barak and become Israel’s first female Chief Justice, endorsed Barak’s finding that the procedure is illegal, but added, crucially, that “Even if the procedure is legal, the danger of slipping into the prohibited practice is inherent in the means it allows”. “The conditions articulated in the procedure”, she wrote, “in addition to being flawed by themselves, would enable slipping down a slippery slope that will cause a blatant violation of international law principles [â€¦] loopholes would be created that will deteriorate the activity on the ground toward situations of illegality.”
Justice Heshin, the Deputy Chief Justice, wrote that “as clear and clean as the written instruction may be, its execution would be in the field [â€¦] in conditions of stress and threat [â€¦] a slight deviation from the instruction, a misunderstanding, a wrong reading of the situation on the ground, and we will be slipping into the prohibited margins, a slipping from the allowed to the prohibited. The temptation is high, and the justification would be easily found”. In other words, Heshin doesn’t trust the security services to use an exceptional measure only when all other options are exhausted; give them the official possibility and they will be tempted to use it all the time, instead of developing other options which would be clearly lawful yet more difficult to execute. He goes on to make a decisive argument: “the routine, inevitably, erodes the sensitivity and care required in implementing the procedure, and there is a grave concern that the special and the exceptional would become the normal and the routine, an act of bureaucracy.” To support his argument he points out that “This was the difficulty we encountered with [â€¦] the ‘ticking bomb’ scenario”.
A bit of background is needed here. In 1987 an Israeli official Commission of Inquiry found that in exceptional cases of “ticking bombs” the Security Services may use “moderate physical pressure” in interrogations. In various decisions throughout the mid 1990s, the Supreme Court endorsed the policy. Heshin himself was very vocal in these endorsements. In 1996, when a human rights lawyer said in court that even when a bomb is ticking it would be illegal to torture, Heshin famously exploded and shouted at him “this is the most immoral statement I’ve ever heard”. Yet gradually it became clear that torture was being used, routinely, in almost all interrogations of Palestinians, “ticking bombs” or not. Thousands were tortured, several died in interrogations, and the majority was never even convicted in any offence. In a dramatic decision in 1999 the Court, with Heshin on the bench, moved to outlaw “moderate physical pressure” altogether. Heshin now seems to admit learning a lesson: security services cannot be trusted with exceptional means, and thus the court needs to raise the legality bar even higher.
The State went back to Court, and armed with an affidavit from the Army’s Chief of Staff, argued that it can’t be the case that the “neighbor procedure” would never be legitimate, and asked for a second hearing. The Court denied a second hearing; Justice Rivlin wrote in the February 2006 decision that “there is no doubt that the procedure was not meant only for those exceptional cases upon which the State is relying [â€¦] the procedure grants the commander of a force the discretion and authority [â€¦] in the circumstances, we cannot guarantee that the agreement [of the local Palestinian] would be genuine and that [his] life would not be put in danger”.
At first sight, the “neighbor procedure” case may look obscure and remote to American audience, yet the Israeli Court’s refusal to give discretion to the security services sends an important and highly relevant message: discretion given to Security Services is a beginning of a slippery slope; attempts to regulate and control will fail. Any leeway would result in a wholesale violation of a principle. Fr
om categorizing the first Afghan detainees as “illegal combatants” to the approval of limited warrentless eavesdropping in September 2001, we have seen some mighty slopes in the American war on terror; the experience of the Israeli Supreme court can provide a lesson.
This is at best a partial and fragmented process, yet the remarks made in the Neighbor Procedure case seem to be an indication of a painful realization the Israeli Court is going through. Justice Rivlin was correct to write that in the complex reality of the struggle against terror, “the colors of black and white often do not illustrate the dilemmas”; but the conclusion is not to be more flexible regarding human rights, but rather more rigid. “Complex times call for clear rules” should perhaps be our new refrain, one that can perhaps save many Americans from experiencing their own future troubling realizations.
Ron Dudai is a research fellow in the School of Law, School of African and Oriental Studies, University of London
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.