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The Protection of Human Dignity in Interrogations: May Interrogative Torture Ever Be Tolerated? Reflections in Light of Recent German and Israeli Experiences

Published online by Cambridge University Press:  30 January 2013

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Abstract

The issue of whether interrogative torture may ever be tolerated has been discussed explicitly by both the Israeli High Court of Justice and the Frankfurt Regional Court in Germany. The Israeli court ruling related to the use of interrogative torture in the war on terror; the case brought before the German court was one of routine police work. This paper analyzes the two rulings in depth and offers a comparative reading of the rulings. The comparative analysis reveals that, despite some fundamental differences, the Israeli and German rulings should both be seen as an attempt to uphold the ban on torture, on the one hand, and yet to grant fair treatment to an individual interrogator who used, or threatened to use, force in order to save innocent lives, on the other. While determining the lessons to be learned from the German and Israeli experiences, this paper raises doubts as to whether it is possible to keep the ban on torture intact while either excusing the individual interrogator (Israel) or significantly mitigating his punishment (Germany). The paper further suggests that, in order to provide a real barrier against the practice of interrogative torture, the evidence resulting from such interrogations should be inadmissible in any criminal proceedings.

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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2011

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References

1 Gäfgen v. Germany, App. No. 22978/05, Grand Chamber judgment of June 1, 2010, § 107, available at HUDOC (http://www.echr.coe.int) [hereinafter Gäfgen case (GC)].

2 HCJ 5100/94 Public Committee against Torture in Israel and Others v. The State of Israel 53(4) PD 817, § 38 [1999] [hereinafter Torture case]. For an official English translation, see http://elyonl.court.gov.il/files_eng/94/000/051/a09/94051000.a09.htm.

3 Landgericht Frankfurt am Main [LG Frankfurt a.M.] [Frankfurt Regional Court], Dec. 20, 2004, Neue Juristische Wochenschrift [NJW] 692, 2005Google Scholar [hereinafter Daschner case]. For an English translation, see Cassese, Antonio, Respect for Human Dignity in Today's Germany: Regional Court (Landgericht) of Frankfurt am Main, Decision of 20 December 2004, Daschner Wolfgang and E. Case, 4 J. Int'l Crim. Just. 862 (2006)Google Scholar.

4 See, e.g., Levinson, S., Torture: A Collection (2004)Google Scholar; Brecher, B., Torture and the Ticking Bomb (2007)CrossRefGoogle Scholar; Gaeta, P., May Necessity Be Available as a Defense for Torture in the Interrogation of Suspected Terrorists, 2 J. Int'l Crim. Just. 785 (2004)CrossRefGoogle Scholar; Gross, O., Are Torture Warrants Warranted, 88 Minn. L. Rev. 1481 (2004)Google Scholar; Parry, J.T. & White, W.S., Interrogating Suspected Terrorists: Should Torture Be an Option?, 63 U. Pitt. L. Rev. 743 (2002)Google Scholar; Heyman, Philip B., Civil Liberties and Human Rights in the Aftermath of September 11, 25 Harv. J.L. & Pub. Pol'y 453 (2002)Google Scholar.

5 See, e.g., Human Rights Watch, The Road to Abu Ghraib (2004)Google Scholar.

6 For a compilation of official documents, see Greenberg, K.J. & Dratel, J.L., The Torture Papers (2005)CrossRefGoogle Scholar.

7 See Dershowitz, A.M., Is There a Torturous Road to Justice?, Los Angeles Times, Nov. 8, 2001, at B19Google Scholar; Dershowitz, A.M., Why Terrorism Works—Understanding the Threat, Responding to the Challenge (2002)Google Scholar. However, the US stance has shifted with the election of President Barack Obama, who, in an Executive Order of 22 January 2009, made clear that proscriptions from common article 3 form the baseline of interrogations and revoked interpretation guidelines issued between September 11, 2001 and January 20, 2009. See Exec. Order No. 13, 491, Jan. 22, 2009, section 3(c). Still, President Obama also announced in April 2009 that CIA executives who used torture in the past would not be prosecuted. See Statement of President Barack Obama on Release of OLC Memos, Apr. 16, 2009: “[I]t is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. … This is a time for reflection, not retribution.”

8 Gäfgen case (GC), supra note 1.

9 For this definition and additional forms of torture, see article 1 of the UN Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, which reads as follows:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

International courts defining torture have also referred to this definition. See, e.g., Prosecutor v. Delalic et al., Case No. IT-96-21, Trial Chamber Judgment, ¶ 452 et seq. (Int'l Crim. Trib. for the Former Yugoslavia Nov. 16, 1998); Prosecutor v. Furundzija, Case No. IT-95-17/1, Trial Chamber Judgment, ¶ 147 et seq. (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).

10 On the notion of human dignity, see the relevant contributions to this volume.

11 Gäfgen case (GC), supra note 1, § 108. In this case, the Grand Chamber arrived at the conclusion that “the method of interrogation to which he was subjected in the circumstances of this case was sufficiently serious to amount to inhuman treatment prohibited by Article 3, but that it did not reach the level of cruelty required to attain the threshold of torture.” Id.

12 In Germany, however, there are two notable exceptions to this observation. Since 2002, the Code of Crimes Against International Law (Völkerstrafgesetzbuch—VStGB) defines crimes against humanity and war crimes, which both include acts of torture if committed under the special circumstances described in the definitions. Furthermore, section 60(2) of the German Residence Act (Aufenthaltsgesetz—AufenthG) prohibits the expulsion of asylum seekers to a state where they would be in danger of being tortured.

13 For an official translation of the Israeli Basic Law: Human Dignity and Liberty, see http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm. Before the enactment of the Basic Law: Human Dignity and Liberty in 1992, human dignity had been protected by the Israeli Supreme Court. See, e.g., HCJ 355/79 Katalan v. The Prison Services 34(3) PD 294 [1980].

14 Basic Law: Human Dignity and Liberty, 5752-1992, SH No. 1454 p. 90, § 8.

15 An exception can be found in sections 7 & 8 of the German Code of Crimes Against International Law, where acts of torture are explicitly included as crimes against humanity and war crimes.

16 Torture case, supra note 2.

17 See Excerpts of the Report of The Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, 23 Isr. L. Rev. 146, 149–54 (1989)Google Scholar.

18 Id. at 167-76.

19 Id. at 157.

20 Id. at 184.

21 Id. at 174.

22 Id. at 157.

23 Id.

24 Id. at 185.

25 Torture case, supra note 2, §§ 9-13.

26 The Israel Law Review devoted an entire issue to the Landau Commission's report: 23 Isr. L. Rev. (1989)Google Scholar. See also Shleleff, Leon, On the Lesser Evil—On the Landau Committee Report, 1 Plilim [Isr. J. Crim. Just.] 185 (1999)Google Scholar (in Hebrew); Statman, Daniel, The Question of Absolute Morality Regarding the Prohibition on Torture, 4 Mishpat U-Mimshal [L. & Gov't Isr.] 161 (1997) (in Hebrew)Google Scholar; Kremnitzer, Mordechai & Segev, Re'em, Using Force During Investigations by the General Security Service—The Lesser Evil?, 4 Mishpat U-Mimshal [L. & Gov't Isr.] 667 (1998) (in Hebrew)Google Scholar; Evans, Malcolm & Morgan, Rod, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 4152 (1998)Google Scholar; Gross, Emanuel, Legal Aspects of Tackling Terrorism: The Balance Between the Right of a Democracy to Defend Itself and the Protection of Human Rights, 6 UCLA J. Int'l L. & Foreign Aff. 89, 9497 (2001)Google Scholar; Ginbar, Yuval, Why not Torture Terrorists? 171–82(2008)CrossRefGoogle Scholar.

27 Kremnitzer, Mordechai, The Landau Commission Report—Was the Security Service Subordinated to the Law, or the Law to the “Needs“ of the Security Service?, 23 Isr. L. Rev. 216, 229 (1989)Google Scholar.

28 Id. at 248.

29 Robinson, Paul H., Letter to the Editor, 23 Isr. L. Rev. 189 (1989)CrossRefGoogle Scholar; Kremnitzer, supra note 27, at 261.

30 Zuckerman, Adrian A.S., Coercion and the Judicial Ascertainment of Truth, 23 Isr. L. Rev. 357, 363–69 (1989)Google Scholar.

31 Dershowitz, A.M., Is It Necessary to Apply “Physical Pressure” to Terrorists—and to Lie About It?, 23 Isr. L. Rev. 192, 198 (1989)Google Scholar; Feller, S.Z., Not Actual “Necessity” but Possible “Justification”; Not “Moderate” Pressure, but either “Unlimited” or “None At All,” 23 Isr. L. Rev. 201, 205 (1989)Google Scholar; Kremnitzer, supra note 27, at 243-47.

32 See references supra at note 26.

33 Dershowitz, supra note 31, at 198.

34 Robinson, supra note 29, at 190; Kremnitzer, supra note 27, at 171.

35 Kadish, Sanford H., Torture, the State and the Individual, 23 Israel L. Rev. 345, 351–55 (1989)Google Scholar; Statman, supra note 26, at 195.

36 For a detailed analysis of the judgment, see Kremnitzer, Mordechai & Segev, Re'em, The Legality of Interrogational Torture: A Question of Proper Authorization or a Substantive Moral Issue?, 34 Isr. L. Rev. 509, 516–27 (2000)Google Scholar; Gur-Arye, Miriam, Can the War Against Terror Justify the Use of Force in Interrogation? Reflections in Light of the Israeli Experience, in Torture: A Collection 183 (Levinson, S. ed., 2004)Google Scholar; Ginbar, supra note 26, at 200-22. For alternative possible readings of the judgment, see Reichman, Amnon & Kahana, Tsvi, Israel and the Recognition of Torture: Domestic and International Aspects, in Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation 631 (Scott, C. ed., 2001)Google Scholar.

37 Torture case, supra note 2, § 32.

38 Id. § 31.

39 See supra text between notes 22-23.

40 Torture case, supra note 2, § 27 (emphasis added). Similarly, “if the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or ‘breaking’ him—it shall not fall within the scope of a fair and reasonable investigation. Such means harm the rights and dignity of the suspect.” Id. § 31 (emphasis added).

41 Id. § 37.

42 Id. § 39.

43 Id. § 36.

44 Id. § 38.

45 Id.

46 Izenberg, Dan & Lynfield, Ben, Human-Rights Groups Applaud GSS Ruling, Jerusalem Post, Sept. 7, 1999, at 2Google Scholar. See also Parry, Johan T., Judicial Restraints on Illegal State Violence: Israel and the United States, 35 Vand. J. Transnat'l L. 74 (2002)Google Scholar, stating:

Recognizing its responsibility for past failure to stop torture, the Supreme Court of Israel used administrative law to stop GSS's pervasive violations of human rights. From this decision, U.S. Courts can draw a lesson in doctrine but also, and more importantly, a recognition of their inevitable responsibility for protecting individuals from illegal state violence. Id. at 148.

47 See Ginbar, supra note 26, at 206-207, arguing that:

one significant omission in the [HCJ] ruling is worth mentioning. The Court describes the international legal prohibition of torture and other ill treatment accurately and succinctly.

These prohibitions are ‘absolute.’ There are no exceptions to them and there is no room for balancing, (para. 23)

However, when discussing the TBS [Ticking Bomb Scenario], international law simply vanishes: the Court does not refer to it at all, and most significantly fails to address, let alone attempt to reconcile, the apparent contradiction between the absolute prohibition and its own facilitation of violent interrogation.

See also references in the note below.

48 Kremnitzer & Segev, supra note 26, at 528-58; Reichman & Kahana, supra note 36, at 638-43; Mandel, Michael, Democracy and the New Constitutionalism in Israel, 33 Isr. L. Rev. 259 n. 168 (1999)CrossRefGoogle Scholar; Cohen, Barak, Democracy and the Mis-Rule of Law: The Israeli Legal System's Failure to Prevent Torture in the Occupied Territories, 12 Ind. Int'l & Comp. L. Rev. 75 (2001)Google Scholar; Ginbar, supra note 26, at 207-22; B'Tselem, , Legislation Allowing the Use of Physical Force and Mental Coercion in Interrogations by the General Security Service (2000)Google Scholar. An English version can be found at http://www.btselem.org.

49 Daschner case, supra note 3.

50 The facts of the case presented in this paragraph are taken from the findings of the court. For an English summary, see Gäfgen v. Germany, App. No. 22978/05, Chamber judgment of June 30, 2008, § 8 et seq., available at HUDOC (http://www.echr.coe.int) [hereinafter Gäfgen case (Chamber)].

51 Consequently, the scope of this paper excludes situations where the infliction of mental or physical pain or suffering occurs for non-preventive ends (such as the production of a confession or punishment) or is caused by a person acting in a private capacity (such as the parents of a hostage). Also beyond the scope of this paper is the question whether criminal responsibility for the use of physical or mental violence in the interrogation of detainees can be excluded for other reasons than a perpetrator's life-saving motives, such as diminished capacity.

52 Daschner case, supra note 3.

53 Section 343 of the German Criminal Code (Strqfgesetzbuch—StGB), which makes coercion to give evidence (Aussageerpressung) a crime punishable with imprisonment of one to ten years, was not to be applied, because in the opinion of the court the defendants were acting solely in order to save the life of the child and not to produce evidence against the suspect.

54 See section 12(4) of the Hessian Security and Order Law (Hessisches Gesetz über die öffentliche Sicherheit und Ordnung – HSOG) in connection with section 136a of the German Code of Criminal Procedure (Strafprozessordnung—StPO).

55 Under section 32 of the German Criminal Code, acts required by self-defense are not unlawful but justified. Subsection 2 defines self-defense as the defense necessary to avert an imminent and unlawful attack from oneself or another person. Proportionality is—unlike under many other domestic legislations—not required by the wording of the provision. However, according to case law, extreme cases of disproportionality are not covered by self-defense.

56 Section 34 reads as follows:

Necessity as a justification

A person who, faced with an imminent danger to life, limb, freedom, honour, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with. This shall apply only if and to the extent that the act committed is an adequate means to avert the danger.

(Translation by Prof. Dr. Michael Bohlander for the German Federal Ministry of Justice, available at http://www.gesetze-im-internet.de/englisch_stgb/index.html.)

57 Since sections 32 and 34 require that all elements of the defense must be present objectively at the time of the commission of the crime. Justification by self-defense or necessity was clearly ruled out. At the time of the threat, the hostage was already dead. Yet, the police officers erroneously thought that the boy would still be alive. Therefore only “putative self-defense” (or “putative necessity”) could have applied anyway. Controversially, this might have excluded the guilt, that given the act would have been justified if the perceptions of the perpetrator had proved correct.

58 See infra note 67 et seq. and accompanying text.

59 A literal translation would be “demanded by self-defense.”

60 Section 35 reads as follows:

Necessity as an excuse

(1) A person who, faced with an imminent danger to life, limb or freedom which cannot otherwise be averted, commits an unlawful act to avert the danger from himself, a relative or person close to him, acts without guilt. This shall not apply if and to the extent that the offender could be expected under the circumstances to accept the danger, in particular, because he himself had caused the danger, or was under a special legal obligation to do so; the sentence may be mitigated pursuant to section 49 (1) unless the offender was required to accept the danger because of a special legal obligation to do so.

(2) If at the time of the commission of the act a person mistakenly assumes that circumstances exist which would excuse him under subsection (1) above, he will only be liable if the mistake was avoidable. The sentence shall be mitigated pursuant to section 49 (1).

(Translation by Prof. Dr. Michael Bohlander for the German Federal Ministry of Justice, available at http://www.gesetze-im-internet.de/englisch_stgb/index.html.)

61 Section 59(1) of the Criminal Code (Voraussetzungen der Verwarnung mil Strafvorbehalt) reads as follows:

If a person has incurred a fine not exceeding one hundred and eighty daily units, the court may warn him at the time of conviction, indicate the sentence and defer its imposition if

1. it can be expected that the offender will commit no further offences without the immediate imposition of the sentence;

2. a comprehensive evaluation of the offence and the personality of the offender warrant the existence of special circumstances which obviate the imposition of a sentence; and

3. reasons of general deterrence do not demand the imposition of a sentence.

(Translation by Prof. Dr. Michael Bohlander for the German Federal Ministry of Justice, available at http://www.gesetze-im-internet.de/englisch_stgb/index.html.)

62 The distinction between torture and inhuman treatment derives principally from a difference in the intensity and severity of the suffering inflicted. See article 16 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘inhuman … treatment which [does] not amount to torture’); Gäfgen case (GC), supra note 1, § 167; Frowein, J.A. & Peukert, W., in Europäische Menschenrechtskonvention: Kommentar art. 3, marginal note 5 (2d ed. 1996)Google Scholar. Personally, we would tend to classify the threat in the Daschner case (“pain you will never forget”) not only as a threat of torture (which may be regarded as inhuman treatment) but also as actual torture by inflicting severe mental suffering. As regards the non-derogability of the prohibition of inhuman treatment (and its status as compared to torture), international law is not clear. While article 2 of the UN Torture Convention does not apply to inhuman treatment (see art. 16), under the ECHR and the American Convention on Human Rights (ACHR) the prohibition of inhuman treatment encompassed by the right to freedom from torture is—like the prohibition of torture itself—absolute and non-derogable. See art. 15(2) ECHR and art. 27(2) ACHR. See also Jayawickrama, N., The Judicial Application of Human Rights Law 300 et seq. (2002)CrossRefGoogle Scholar.

63 See Gäfgen case (GC), supra note 1, §§ 79 & 108.

64 See supra note 12.

65 See, e.g., Hooper, J., Germans wrestle with rights and wrongs of torture, The Guardian, Feb. 27, 2003, at 18Google Scholar; Finn, P. Police Torture Threat Sparks Painful Debate in Germany, The Washington Post, Mar. 8 2003, at A19Google Scholar. For a comprehensive overview, see Weilert, A.K., Grundlagen und Grenzen des Folterverbotes in Verschiedenen Rechtskreisen 112231 (2009)CrossRefGoogle Scholar.

66 Article 1(1), sentence 1 of the German Constitution provides that the dignity of human beings is inviolable. Article 104(1) provides that persons in custody may not be subjected to mental or physical mistreatment. The ECHR entered into force for Germany on September 3, 1953; the UN Torture Convention entered into force for Germany on October 31, 1990.

67 See, e.g., Hecker, W., Relativierung des Folterverbots in der BRD?, 2003 Kritische Justiz 210–18Google Scholar; Hilgendorf, E., Folter im Rechtsstaat, 2004 Juristenzeitung 331–39.Google Scholar; Jessberger, F., Wenn du nicht redest, füge ich dir große Schmerzen zu, 2003 Juristische Ausbildung 711–15Google Scholar; Kinzig, J., Not kennt kern Gebot? Die strafrechtlichen Konsequenzen von Folterhandlungen an Tatverdächtigen durch Polizeibeamte mil präventiver Zielsetzung, 115 Zeitschrift für die Gesamte Strafrechtswissenschaft 791814 (2003)Google Scholar; Kretschmer, B., Folter in Deutschland: Rückkehr einer Ungeheuerlichkeit?, 2003 Recht und Politik 103–18Google Scholar; Neuhaus, R., Die Aussageerpressung zur Rettung des Entführten: strafbar!, 2004 Goltdammer's Archiv für Strafrecht 521–39Google Scholar; Perron, W., Foltern in Notwehr?, in Festschrift für Ulrich Weber 143–54 (Heinrich, B. et al. eds., 2004)Google Scholar; Roxin, C., Kann staatliche Folter in Ausnahmefällen zulässig oder wenigstens straflos sein?, in Menschengerechtes Strafrecht: Festschrift für Albin Eser 461–71 (Arnold, J. et al. eds., 2005)Google Scholar; Beutler, B., Strafbarkeit der Folter zu Vernehmungszwecken 326 (2006)Google Scholar.

68 In the same vein, Horlacher, C., Auskunftserlangung Mittels Folter 213 et seq. (2007)Google Scholar. See also Weilert, supra note 65, at 229 (with reference to C. Roxin) (arguing that in the long run it is worse to sacrifice the rule of law than to tolerate limitations on state actions in the face of threats).

69 See, e.g., Erb, V., Nothilfe durch Folter, 2005 Juristische Ausbildung 2430 (2005)Google Scholar; Erb, V., Notwehr als Menschenrecht, 2005 Neue Zeitschrift für Strafrecht 593602Google Scholar; Fahl, C., Angewandte Rechtsphilosophie—Darf der Staat foltern?, 2004 Juristische Rundschau 182–91 (2004)Google Scholar; Jerouschek, G. & Kolbel, R., Folter von Staats wegen?, 2003 Juristenzeitung 613–20Google Scholar. Some of the arguments were elaborated earlier by Brugger, W., Vom unbedingten Verbot der Folter zum bedingten Recht auf Folter?, 2000 Juristenzeitung 165–73Google Scholar; see also Brugger, W., May Government Ever Use Torture? Two Responses from German Law, 48 Am. J. Comp. L. 661 et seq. (2000)CrossRefGoogle Scholar.

70 According to Erb, Notwehr als Menschenrecht, supra note 69, at 594, the state, if it imposes certain restrictions on self-defense, negates the attacked right in the same way as the original attacker because it removes obstacles that would otherwise have hindered the attack.

71 See Wagenländer, G., Zur Strafrechtlichen Beurteilung der Rettungsfolter 169, 200 (2006)Google Scholar. See also the more delicate argument by Schünemann, B., Kommentar zur Abhandlung von Luis Greco, 2007 Goltdammer's Archiv für Strafrecht 644, 647Google Scholar, who submits that a complete ban on excusing torture in any situation cannot be right in a categorical form.

72 Höfling, W., in Grundgesetz Kommentar art. 1, marginal note 20 (Sachs, M. ed., 4th ed. 2007)Google Scholar.

73 Dreier, H., in Grundgesetz Kommentar art. 1, marginal note 133 (Sachs, M. ed., 2d ed. 2004)Google Scholar. Starck, C., in Grundgesetz Kommentar: Teil I art. 1 § 1, marginal note 79 (von Mangoldt, H. & Klein, F. eds., 2005)Google Scholar regards torture as “prohibited without exception” in the context of the criminal process but applies different standards to torture in a preventive context that is aimed at obtaining information in order to save a (potential) victim from harm. In the latter case, a balancing between the attacker's dignity and the victim's dignity is allowed. See also Herdegen, C., in Grundgesetz Kommentar art. 1, marginal note 43 (Maunz, T. & Dürig, G. eds., 44th ed. 2005)Google Scholar. While Herdegen does not explicitly draw the conclusion that torture can be excused or justified, he questions the usual arguments for a ban on torture and points out that, in cases where high-ranking values are at stake, the sanctions of criminal law might be reduced or ruled out, id. at marginal notes 45 & 47. See also Wagenländer, supra note 71, at 199; Erb, Notwehr als Menschenrecht, supra note 69, at 599.

74 Torture case, supra note 2, § 38.

75 Kadish, Sanford H., Torture, the State and the Individual, 23 Isr. L. Rev. 345, 353 (1989)Google Scholar (“If ill-treatment were to become legal in combating terrorism, how long would it take for pressure to develop to extend its use to other contexts where it could also be thought that much was at stake?”). See also Kremnitzer, supra note 27, at 260-64.

76 In fact, though without being aware of it, the Israeli court adopted in this context the technique of “acoustic separation” suggested by Dan-Cohen, Meir, Harmful Thoughts: Essays on Law, Self, and Morality 3793 (2002)Google Scholar. According to Dan-Cohen, in an imaginary world, where conduct rules can be acoustically separated from decision rules, criminal law excuses should not be included among the conduct rules of the system. The message transmitted to the public will be that the law does not “relax its demands that the individual make the socially correct choices … even when external pressures impel her toward crime,” id. at 43. Excuses should be used as “a decision rule—an instruction to the judge that … [it would be unfair to punish] a person for succumbing to pressure to which even his judge might have yield,” id. In the real world, actual legal systems may in fact avail themselves of the benefits of acoustic separation by vagueness.

By refraining from clarifying the conditions under which necessity might apply in criminal proceedings against an individual interrogator who used force during an interrogation, the Israeli court in fact eliminated necessity from the conduct rules addressed to the interrogators. The court included necessity only in the decision rules addressed to the Attorney-General by inviting him to “instruct himself regarding circumstances in which investigators shall not stand trial, if they claim to have acted from a feeling of ‘necessity.’” See Torture case, supra note 2, § 38.

77 See supra text accompanying note 14.

78 Defined as follows in section 34K of the Penal Law (Amendment No. 39), 5754-1994, SH No. 1481 p. 348: “A person shall not bear criminal liability for an act required to have been done immediately to save his or another's life, freedom, bodily integrity or property from an actual danger of serious injury stemming from the circumstances for which no alternative act was available.” According to section 34P, section 34K shall not apply where, in the circumstances of the case, the act was not a reasonable means for preventing the danger.

79 The court's statement in this regard was aimed at rejecting the state's argument that:

an act committed under conditions of “necessity” does not constitute a crime. [It is an act] that society has an interest in encouraging, which should be seen as proper under the circumstances. In this, society is choosing the lesser evil. Not only is it legitimately permitted to engage in the fighting of terrorism, it is our moral duty to employ the necessary means for this purpose. This duty is particularly incumbent on the state authorities—and for our purpose, on the GSS investigators—who carry the burden of safeguarding the public peace. Torture case, supra note 2, § 33.

80 Id. § 38.

81 See supra note 76 (showing that the Israeli Supreme Court adopted the technique of “acoustic separation” which applies to excuses).

82 Translation by Brian Duffet and Monika Ebinger for the German Federal Ministry of Justice, available at http://www.gesetze-im-internet.de/englisch_stpo/index.html.

83 For further references to case law about qualified instructions, see Gromes, M., Präventionsfolter 220 (2007)Google Scholar.

84 See 34 Entscheidungen des Bundesgerichtshofes in Strafsachen [BGHSt] [Decisions of the Federal Court of Justice in Criminal Matters] 363 (364). For differing views on legal scholarship, see Roxin, C., Strafprozessrecht 193, marginal note 47 (25th ed. 1998)Google Scholar; Hanack, J., in Strafprozessordnung § 136a, marginal note 67 (Löwe, E. & Rosenberg, W. eds., 26th ed. 2007)Google Scholar.

85 See LG Frankfurt a.M., Apr. 9, 2003, Strafverteidiger 325 (328), 2003Google Scholar, with case note by T. Weigend at 436. The decisions of the Regional Court have been upheld on appeal. See Bundesgerichtshof [BGH] [Federal Court of Justice], May 21, 2004, 2 StR 35/04; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Dec. 14, 2004, 2 BvR 1249/04, available at http://www.bundesverfassungsgericht.de/entscheidungen/frames/rk20041214_2bvr124904 (last visited Sept. 1, 2011).

86 See Gäfgen case (Chamber), supra note 50. On the judgment and its implications, see also Weigend, T., Deutschland als Folterstaat? Zur Aktualität und Interpretation von Artikel 3 EMRK, in Ophet rechte pad—Liber Amicorum Peter J.P. Tak 328–30 & 332–35 (Buruma, Y. et al. eds., 2008)Google Scholar.

87 Gäfgen case (Chamber), supra note 50, § 69.

88 Id. § 105.

89 Id. § 106.

90 See Gäfgen case (GC), supra note 1, § 180.

91 Id. §§ 129-130.

92 Excerpts of the Report, supra note 17, at 176-79.

93 Evidence Ordinance [New Version], 5731-1971, 2 LSI 198 (1968-1972).

94 CrimC (Tel Aviv) 1147/02 The State of Israel v. El Sayad (Jan. 10, 2006) (not published). In the appeal, the Supreme Court decided to avoid the issue of the admissibility of the confession because it was of the opinion that there was enough evidence to convict the defendant without having to rely on the confession. See CrimApp 1776/06 El Sayad v. The State of Israel (Sept. 5, 2011) (not published).

95 CrimC (Jer) 775/04 The State of Israel v. El-Aziz (Dec. 29, 2005) (not published).

96 CrimA 5121/98 Issacharov v. Chief Military Prosecutor 60(1) PD 461 [2006], available at http://elyonl.court.gov.il/files_eng/98/210/051./n21/98051210.n21.pdf.

97 See, e.g., ICCPR art. 7; UN Torture Convention art. 2(2); ECHR art. 3.

98 See, e.g., Cassese, A., International Criminal Law 119 (2003)Google Scholar; Greenwood, C., International law and the “War Against Terrorism,” 78(2) Int'l Aff. 301 (2002)CrossRefGoogle Scholar.

99 For US courts, see, for example, Kadic v. Karadzic 70 F.3d 232, 245 (2d Cir. 1995); Filártiga v. Peña-Irala, 630 F.2d 876, 882 (2d Cir. 1980).

100 See Gäfgen case (GC), supra note 1, § 107.

101 See Torture case, supra note 2, § 37.

102 For additional data supporting that claim, see Ginbar, supra note 26, at 207-19.

103 See supra text between notes 94-96.

104 In November 2008, the Public Committee against Torture in Israel (PCATI) and others filed a contempt of court motion with the High Court of Justice against the Israeli government and the GSS for their responsibility for the policy that grants a priori permits to use the torture in interrogations in violation of the HCJ's ruling of 1999. On July 2009, the HCJ rejected the contempt of court motion on the grounds that the contempt of court procedure was not the appropriate one for clarifying claims of violation of court decisions whose nature is “declarative.” The ruling was delivered by a panel of justices, headed by Chief Justice Dorit Beinish.

105 In a similar spirit, see Ginbar, supra note 26, at 207.

106 Similarly, Ginbar argues that a “different ‘slippery slope argument’ could nevertheless be made—that once a state grants its torturing interrogators any exemption from liability in TBSs [Ticking Bomb Scenarios], it is likely to develop mechanisms and practices which would trigger these exemptions and defend the interrogators beyond the strict limits of such situations.” Id. at 222.

107 Gäfgen case (GC), supra note 1, § 124.

108 Id. joint partly dissenting opinion of Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power, § 2.

109 See supra note 107.

110 See supra note 108.