Citation. H.C. 5100/94 (Israel 1999).
Brief Fact Summary. The Supreme Court of Israel reviewed the lawfulness of utilizing physical means to interrogate prisoners.
Synopsis of Rule of Law. Israeli interrogators may not use physical means to gain information from criminal suspects; however, in criminal cases, under certain circumstances, interrogators are not prohibited from asserting the defense of necessity.
May interrogators facing criminal charges assert the defense of necessity for using physical means?
No. Even though a “reasonable investigation” is bound to lead to some discomfort, a suspect must be free of torture and cruel and inhuman treatment. Shaking the suspect and forcing him into uncomfortable positions impinge upon the suspect’s dignity and basic rights. Hence, physical means cannot be used to interrogate a criminal suspect.
Yes. Under the doctrine of necessity, a person is not criminally liable for undertaking conduct necessary to save a life from substantial danger of serious harm and absent alternative means for neutralizing the harm. Israel recognizes this defense, and it is therefore available to an investigator facing criminal charges for his interrogation techniques.
Concurrence. The majority decision should be suspended for one year to give the legislature time to deal with the issue of how to cope with emergency situations.
Discussion. Utilizing torture during interrogations is not permitted. However, if an interrogator faces criminal charges regarding torture, he may assert the defense of necessity in those circumstances where gaining information quickly during interrogation is necessary to save lives.