security and human rights policy: israel and the interrogation case of 1999

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This article was downloaded by: [University of Connecticut] On: 04 October 2014, At: 13:16 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Contemporary Security Policy Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/fcsp20 Security and Human Rights Policy: Israel and the Interrogation Case of 1999 Assaf Meydani Published online: 30 Apr 2008. To cite this article: Assaf Meydani (2007) Security and Human Rights Policy: Israel and the Interrogation Case of 1999, Contemporary Security Policy, 28:3, 579-596, DOI: 10.1080/13523260701737851 To link to this article: http://dx.doi.org/10.1080/13523260701737851 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub- licensing, systematic supply, or distribution in any form to anyone is expressly

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Page 1: Security and Human Rights Policy: Israel and the Interrogation Case of 1999

This article was downloaded by: [University of Connecticut]On: 04 October 2014, At: 13:16Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH,UK

Contemporary Security PolicyPublication details, including instructions for authorsand subscription information:http://www.tandfonline.com/loi/fcsp20

Security and Human RightsPolicy: Israel and theInterrogation Case of 1999Assaf MeydaniPublished online: 30 Apr 2008.

To cite this article: Assaf Meydani (2007) Security and Human Rights Policy: Israeland the Interrogation Case of 1999, Contemporary Security Policy, 28:3, 579-596, DOI:10.1080/13523260701737851

To link to this article: http://dx.doi.org/10.1080/13523260701737851

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all theinformation (the “Content”) contained in the publications on our platform.However, Taylor & Francis, our agents, and our licensors make norepresentations or warranties whatsoever as to the accuracy, completeness, orsuitability for any purpose of the Content. Any opinions and views expressedin this publication are the opinions and views of the authors, and are not theviews of or endorsed by Taylor & Francis. The accuracy of the Content shouldnot be relied upon and should be independently verified with primary sourcesof information. Taylor and Francis shall not be liable for any losses, actions,claims, proceedings, demands, costs, expenses, damages, and other liabilitieswhatsoever or howsoever caused arising directly or indirectly in connectionwith, in relation to or arising out of the use of the Content.

This article may be used for research, teaching, and private study purposes.Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly

Page 2: Security and Human Rights Policy: Israel and the Interrogation Case of 1999

forbidden. Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions

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Page 3: Security and Human Rights Policy: Israel and the Interrogation Case of 1999

Security and Human Rights Policy: Israel and theInterrogation Case of 1999

ASSAF MEYDANI

Introduction

Since the 1970s, non-governmental organizations have been defining human rights as

a legal, political and social issue. This global process has caused many researchers to

focus on intra-state research, in the understanding that the promotion of human rights

cannot be achieved by international means only, and that the political sphere as well

as the local culture are important variables in the design of public policy on human

rights.1

The terrorist attacks during the 1990s and especially those of 11 September 2001,

followed by the American War on Terror, caused many to consider the need to curb

civil liberties in order to improve the government’s ability to prevent planned attacks.

As a result, certain measures that have been unacceptable have become more toler-

able. However, the 1999 decision of the Israeli High Court of Justice (HCJ), forbid-

ding the General Security Services (or GSS, also known as Shin Beth) to use physical

pressure in interrogations, is different.2

On 6 September 1999, the High Court of Justice ruled on the appeal of the Public

Committee Against Torture in Israel, the Association for Civil Rights in Israel, and

others, versus the Israeli government, the GSS and others, on the issue of the use of phys-

ical means in interrogating detainees suspected of committing offences against state

security.3 At issue in the Interrogation Decision was the legality of techniques such

as ‘shaking’4 and forced restraint position.5 The ruling stated, ‘The GSS does not

have the authority “shake” a suspect or hold him in the “shebach” position . . . forcehim into a “frog position”6 or deprive him of sleep if the investigation does not so

warrant’.7

This ruling, handed down five years after the initial appeal, represented the first time

that the HCJ forbade the use of physical pressure in interrogations. However, there was

no outright rejection of the possibility of interrogators’ claiming ‘need’ in order to gain

an exemption fromcriminal responsibilitywhen suchmethodswere used in order to save

lives.8 The ruling constituted a change from the earlier policy that allowed a ‘moderate

degree of physical pressure, commensurate with the danger presented by the detainee,

which does not constitute an abuse or torture of the detainee’. What constitutes a mod-

erate degree of physical pressure? No clear definition has been provided.

Three years after the ruling, in 2002, the General Security Service law was passed

regulating the activity of GSS.9 The Israeli parliament chose not to legally establish

the GSS’s authority to conduct interrogations. This decision validated the HCJ’s

ruling in the torture case, which remains the foundation of current policy. Yet, a

Contemporary Security Policy, Vol.28, No.3 (December 2007), pp.579–596ISSN 1352-3260 print/1743-8764 onlineDOI: 10.1080/13523260701737851 # 2007 Taylor & Francis

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Page 4: Security and Human Rights Policy: Israel and the Interrogation Case of 1999

report published in April 2003 by the Public Committee Against Torture revealed that

the Israeli HCJ decision is often ignored in practice, although it might be the case that

it has had some constraining effect on the GSS.

Most previous studies dealing with the domestic arena focus on the activities of

non-governmental organizations and their effect on the political culture and the

legal situation in the state.10 This article, too, focuses on the domestic arena. It elab-

orates on human rights policies in Israel as well as on the security policy through

examples of how these policies are designed as well as an examination of the

impact of social agents within the cultural context. The cultural perspective is a scien-

tific variable in the study of public policy.11 This article will define and discuss what

is generally referred to as an alternative culture rooted in Israel that has a powerful

effect on the creation of certain public policies.12 The discussion on culture is not

new. However, while most studies deal with the notion of security culture as a

belief that determines polices, this article will elaborate on the input of various pol-

itical actors who operate within a complex of variables. Alternative political culture is

one of these variables and affects the design of what we all call ‘the security culture’.

The article is divided into a number of parts. First, it reviews the interrogation

case. This is followed by three sections, sequentially treating issues of non-

governability, the effect of law on politics and alternative political culture. The

fifth part describes how the social–political–cultural conditions accelerated

changes, affected the actions of various players and their methods of operation and

resulted in the interrogation case. At the end, I shall summarize and present my

main conclusions.

Judicial Activism – The Interrogation Case of 1999

During 1984–86 the GSS went into a major crisis following the the Kav 300 Affair or

the ‘Shabak Affair’ in which two terrorists who hijacked a bus and took hostages were

executed without trial by GSS officers, who later covered up the event and gave false

testimonies. Following this affair, Avraham Shalom (then the head of Shabak) was

forced to resign. In 1987, after complaints about excessive use of violence in interro-

gations of Palestinian prisoners and especially after the the Izat Nafsu affair (an officer

was cleared from spy charges, and the GSS was highly criticized for its methods and

norms) the Israeli government appointed the ‘Landau Committee’ of Inquiry which

regulated GSS interrogation methods. The Committee, headed by former Supreme

Court President, Justice Moshe Landau, was created following a decision of the gov-

ernment of Israel in 1987 to examine the General Security Service’s methods of

interrogation of terrorist suspects. This committee provided official authorization to

use physical means in interrogating detainees.13 The Committee prepared a two-

part report on GSS’s interrogation methods. Only one part was made public. The

open part revealed that the guidelines allowed GSS to apply ‘moderate physical

pressure’ in the case of ‘necessity’. The committee determined that in dealing with

dangerous terrorists who represent a grave threat to the State of Israel and its citizens,

the use of a moderate degree of pressure, including physical pressure, in order to

obtain crucial information, is unavoidable under certain circumstances. Such

580 CONTEMPORARY SECURITY POLICY

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circumstances include situations in which information sought from a detainee

believed to be personally involved in serious terrorist activities can prevent imminent

murder, or where the detainee possesses vital information on a terrorist organization

which could not be uncovered by any other source (for example, location of arms or

caches of explosives for planned acts of terrorism). The Committee did not explain

the meaning of the so-called moderate physical pressure in its published report and

the cases in which it is allowed to be used. Instead, it kept the details of its report

confidential, which were never published.

One result has been a series of controversies. Since 1987, GSS torture techniques

have caused the death of at least one Palestinian detainee and many more cases of per-

manent injuries.14 During the 1990s several appeals called upon the High Court to

prohibit torture and inhuman treatment by the GSS. The petitioners claimed that

since Israel is a party to both the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (CAT) and the International

Covenant on Civil and Political Rights (ICCPR) it should prohibit torture even

during a state of war or other public emergency. However, in all of the cases, the

High Court accepted the government’s argument that the use of physical force in

interrogation is justified to obtain urgently needed information in order to save

lives or property.15

In 1994, the Public Committee Against Torture petitioned the Israeli Supreme

Court sitting as the High Court of Justice requesting the Court to issue an order

nisi (show cause order) to the government to show cause why it continues to allow

the GSS to operate and torture without explicit legislative authorization.16 It also

requested the government to show cause why it will not publish the classified part

of the Landau Report and why it should not refrain from using the methods rec-

ommended by the Landau Report including moderate physical pressure and non-

violent psychological means. The High Court issued the nisi order but left the case

pending and a hearing date was not set until 1999, while considering another

case.17 The Court voted to join HCJ 5100/94 to three more cases pending before it.18

The 1999 appeal challenged the legality of these interrogation procedures, already

found by the CAT and ICCPR treaty-monitoring bodies to constitute torture and cruel,

inhuman, or degrading treatment. The government’s position was that the use of these

prohibited procedures is not illegal in Israeli law, is justified by urgent security needs,

and in any case does not meet the threshold of ‘severe pain or suffering, whether

physical or mental’ required by the definition of torture in the CAT.

Both the CAT and the ICCPR explicitly prohibit the argument that public emer-

gencies, or any other reason, can be a justification for torture. Israel’s use of ‘ticking

bomb’ arguments is thus clearly inadmissible under both treaties. Second, these

interrogation procedures are known to have caused permanent physical disability

and death – the argument that they are not ‘severe’ lacks all credibility. Finally,

both the CAT and the ICCPR explicitly require States to amend their domestic legis-

lation to prohibit practices, such as these interrogation methods, which constitute

torture.

The interrogation case of 1999 was the first time the High Court has ruled on the

principle of the case. The Court determined that:

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The power to interrogate given to the GSS investigator is the same interrogation

power that the law bestows upon the ordinary police force investigator. It

appears that the restrictions applicable to the police investigations are equally

applicable to GSS investigations. There is no statutory instruction endowing

a GSS investigator with special interrogation powers that are either different

or more serious than those given to the police investigator. From this we con-

clude that a GSS investigator, whose duty is to conduct interrogation according

to the law, is subject to the same restrictions applicable to a police

interrogation.19

The Supreme Court, sitting in its role as the High Court of Justice, also determined

that:

[A] reasonable investigation is necessarily one free of torture, free of cruel,

inhuman treatment of the subject and free of any degrading handling whatso-

ever. There is a prohibition on the use of ‘brutal or inhuman means’ in the

course of an investigation. Human dignity also includes the dignity of the

suspect being interrogated . . . These prohibitions are ‘absolute’. There are no

exceptions to them and there is no room for balancing. Indeed, violence directed

at a suspect’s body or spirit does not constitute a reasonable investigation

practice.20

The Supreme Court examined each of the specific interrogation means, which the

petitioners in the case had challenged. The Supreme Court prohibited the use of

shaking, the use of the ‘frog position’, seating a suspect in the Shabach position, cov-

ering a suspect’s head with an opaque sack as investigation methods, stating that these

methods harm the suspect’s body and violate his dignity. The Supreme Court also

held that painful handcuffing of a suspect is prohibited. It also considered the

playing of loud music while in the Shabach position is prohibited. Finally, the

Court considered the use of deprivation of sleep during the course of an investigation.

The Court noted that Such means harm the rights and dignity of the suspect in a

manner surpassing that which is required’.21

The explanation of the above change in the position of the High Court of Justice

raises a number of questions about the relationship of law and politics, as described by

the Court itself:

We have not ruled, until now, on the question of whether the GSS is authorized

to use physical interrogation methods in circumstances defined as ‘need’. We

did so, partly, because we had not heard broad-based claims that would

present the normative picture in full.22

The explanation the High Court provides focuses on a formalistic claim that consti-

tutes a paradox23 in light of the High Court’s ability to develop law independently, as

evidenced in past appeals. The Israeli court is known for developing laws and apply-

ing judgment even when the positivistic law does not provide it with adequate tools.24

This article will abandon the formalistic, legalistic explanation and focus on an

interdisciplinary explanation that combines the cultural, social and political

582 CONTEMPORARY SECURITY POLICY

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Page 7: Security and Human Rights Policy: Israel and the Interrogation Case of 1999

contexts.25 Three main variables play a crucial role in this equation. First, Israel’s

government has demonstrated an inability to govern the country effectively. The grid-

lock created by competing governmental institutions has prompted the HCJ to inter-

vene in many areas. Thus, the court is now the place where disputes are resolved and

policy is set. Faced with a paralysed government, various interest groups have created

an alternative political culture. In the next section, I will elaborate on how these three

variables – non-governability, the effect of law on politics and the alternative politi-

cal culture – affect judicial activism.

Non-governability

Since the 1980s, there has been tremendous tension in Israel between society and the

government. This process began in the 1970s, but was aggravated by a variety of ill-

conceived political and economic reforms that were implemented nonetheless.

Simultaneously, the increasing social and economic gaps between constituent

groups in society had an increasing influence on public policy, leading to social frag-

mentation.26 The situation reached a peak in the 1996 elections, whose results vividly

demonstrated the political splits along partisan lines. The authority of the prime min-

ister grew and that of the Israeli parliament (the Knesset) decreased. These processes

led to the exacerbation of the existing contradictions, the deepening of divisions and

the lack of cohesiveness in public policy.27

The decline in the power of political leaders, their inability to overcome arbitrary

policies that were promulgated by narrow interest groups, and their paralysis in the

face of Israel’s critical social problems led to a phenomenon known as the effect of

law on politics or judicialization.

Judicialization

A well-known phenomenon in democratic-liberal countries, judicialization refers

to the situation in which the legal system partially replaces the traditional role

of executive legislative agency in the state.28 Israel has experienced this

process, as evidenced by increasing appeals to the courts and a rise in the

number of investigating committees that consider the legality of the process,

not its production. Legality becomes the main evaluation criterion and is therefore

a component in the political considerations and the struggle between political

players.

According to Martin Edelman, the reason for this phenomenon is the decline in

the politicians’ power, their inability to overcome arbitrary policies that were promul-

gated by self-serving interest groups, and their paralysis in the face of Israel’s critical

social problems.29 Itzhak Galnoor stresses the Americanization of the constitutional

and governmental perceptions, from which the status of the law and the role of the

court are also derived.30 This process brought about the doctrine according to

which the separation of powers is perceived as balancing as well as blocking the

activities of the three authorities, giving them equal status.

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The effect of law on politics is evident in every aspect of Israeli public life.

Confronted with the decline in the politicians’ power and the increasing role of the

HCJ in matters of everyday life, many Israelis developed an alternative political

culture.

Alternative Political Culture

Israelis have a long tradition of working around the law. Before the establishment of

the State of Israel, the fledgling political, social and economic institutions could

develop only by bypassing the laws of the British Mandate, the occupying force in

the country at that time.31 The Jewish community in Palestine under the British

Mandate had a relatively large measure of autonomy in managing its own affairs in

most fields of life. The common pattern was to create a de facto reality and force it

on the British Mandate authorities. The Jewish leadership, elected via a relatively

independent political system, created independent organizations, separate from

those of both the British Authorities and the Arab community, to accelerate economic

development, provide public services such as health, education and welfare, and

develop an infrastructure such as electricity, roads, water supply and building con-

struction. Thus, the idea that the Jewish community could not trust others and had

to create its own institutions and organizations gradually became a building block

of the Zionist ethos. At the same time, facing significant threats from the Arab popu-

lation and a British ban on widespread Jewish immigration, as well as the aspiration to

expand Jewish settlement in Palestine, the Jewish leadership gradually built illegal

paramilitary forces that had three main goals: fighting the Arab paramilitary forces,

organizing illegal Jewish immigration and establishing and defending illegal settle-

ments. These channels of activity were not only ‘alternative’, but also illegal as far

as British mandatory law was concerned. The political culture that was passed

down to generations of Israelis included the idea that acting via unilateral initiatives

that might skirt the letter of the law, and sometimes even operate outside formal regu-

latory structures, is not only permitted, but actually serves national goals. To a large

extent, this became the modus operandi of Israeli society.32 Such patterns were aban-

doned during the two first decades of the state of Israel, which were characterized by

highly centralized political, economic and administrative systems.33

This approach was revived, however, in the aftermath of the Yom Kippur War, in

which large sectors of Israeli society expressed their deep dissatisfaction with the pol-

icies of the Labour party in a variety of areas. Such groups as Shinui (Hebrew for

‘Change’) used a number of democratic tools (demonstrations, strikes and the

public media) to vent its displeasure, and finally, in 1977, removed the Labour

party that had governed the country since its independence. Simultaneously,

expressions of the illegal tradition that characterized the pre-state period (‘de facto

attitude’) began to appear. They first took the form of the establishment of illegal

settlements in the occupied territories.

Later on, however, as large sectors of Israeli society grew more desperate about its

inability to influence the government through democratic means, the same illegal

activity spread to other spheres of life as well. By degrees, a belief was developed

584 CONTEMPORARY SECURITY POLICY

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Page 9: Security and Human Rights Policy: Israel and the Interrogation Case of 1999

among large parts of the Israeli society that in certain areas, it needed to find

alternative ways to supply the goods and services it wanted but the government

could not or would not supply. This feeling brought about institutional changes,

one of which was the manner in which politicians designed policies to address societal

demands. Political leaders responded to such demands in ways that did not always

correspond to the law. Thus, the political system initially overlooked establishment

of illegal settlements, the introduction of pirated cable television stations, and the

development of a grey market in education and healthcare.34

A similar analysis might be applied to the place the High Court has in Israeli

society. As mentioned above, in the 1970s and 1980s, the public used legal and demo-

cratic methods such as demonstrations, strikes, and voting to change governments in

an attempt to influence the government. When such means did not lead to meaningful

changes in public policy, the public gradually developed the feeling that its ability to

influence the political system was completely blocked. The unity government that

ruled from 1984 to 1990 only exacerbated that feeling.35

This sense of being at a dead end prompted a demand for a change in the electoral

system as well as a search for an alternative format for creating public policy. The

alternative that was found was the High Court, because there were no clear-cut

rules that defined its role.36 Thus, by increasing appeals to the High Court, the

public tried to create a de facto reality. Like the quasi-exit behaviour in other

spheres, such behaviour in the sphere of law is supposed to threaten the politicians,

who should then institutionalize the reality, either by accepting it or by restricting

and redefining the High Court’s authority. The central role of the High Court as a

social-political agenda designer in Israel is, therefore, mainly a result of deep,

complex social and political processes. These processes affect the activity of

various players in the political sphere, and the results of the policy reflect the

balance between these structural and cultural conditions and the actions and interests

of the various players. In the next section, I will examine how these activities have

affected the structural and social conditions that have subsequently developed.

Security as a Product of Social and Political

The HCJ’s decision regarding the interrogation methods of the GSS was comprised of

a collection of decisions made by a number of entities involved in the process leading

to the decision. These entities include political leaders, interest groups and civil ser-

vants acting within structural factors: non-governability, the effect of law on politics

and the alternative political culture.

NGOs versus the GSS

During the 1990s several groups (such as the Association of Civil Rights in Israel,

B’Tselem, and the Public Committee Against Torture in Israel), acted as interpreters

of social values, demanded a more humanitarian public policy regarding the interrog-

ation methods employed by the GSS. Such activities led to a partial change by the

Court in the torture policy. However it took more than a decade to reach an activist

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decision by the HCJ. Systematically they appealed to the HCJ as the Court refers to

this trend in the following:

A number of appeals filed in this court in recent years pertain to the use of phys-

ical force during GSS interrogations (see, for example, HCJ 7964/95, Balbisi

v. the GSS [unpublished]; HCJ 8049/96, Hamdan v. the GSS [unpublished];

HCJ 3123/94, A-ton v. Director of the GSS [unpublished]; HCJ 3029/95,

Arkan v. the GSS [unpublished]; HCJ 5578/95, Hagazi v. the GSS [unpub-

lished]). In all of these appeals, we decided upon an immediate discussion. In

most of these discussions, we and the appellants were informed that no physical

means were used. On this basis, we asked the appellants to cancel the appeals.37

In his decisions the HCJ stated that the appellants were informed that no physical

means were used, in fact the appellants provided more that once the information

needed to prove their claims. B’Tselem reported more than once during the 1990s

on many detainees who were exposed to sever interrogation methods. Thus, for

instance, in the reports it filed in January 1997 and February 1998, B’Tselem esti-

mated that around 85 per cent of the detainees were exposed to interrogation

methods that are considered to be torture.38

However, in the context of the torture policy, another key player is the GSS, on the

one hand, and the members of the judicial system such as the Attorney General and

the State Prosecutor, who must decide at what point justifiable action ends and crim-

inal activity begins. This description contains a seeming conflict of interest. GSS per-

sonnel prefer flexible interrogation methods to maximize their performance, as we

may conclude from the following passage:

‘Shaking’ is a necessary tool in the struggle against terrorism and the prevention

of terror attacks. It is impossible to renounce it without hindering the ability of

the GSS to prevent such attacks. The use of this tool in the past has in fact led to

the prevention of terrible terrorist acts.39

On the other hand, the Attorney General would rather remove sectoral governmental

supervision and give the authority to the State Prosecutor’s Office, particularly when

the GSS possesses evidence to support its consideration of the use of torture. This pre-

ference on the part of the Attorney General gives the GSS a great deal of power rela-

tive to him.

However, given the absence of clear-cut beliefs among the public with regard to

what should be allowed and what should not, and without clear legislation, intense

interaction and cooperation have developed between the GSS and the Attorney

General. Such cooperation derives from the fact that they share similar interests,

inter-relations and mutual institutional dependency.40 In this context, Gad Barzilai

and Dave Nachmias claim that the developing understanding is ‘the exchange of

spheres’. The Attorney General and the State Prosecutor are pressed to surrender

their autonomy in areas such as security or governmental offences, in exchange for

broader autonomy in handling ordinary crime.41 As for the dynamic between the

GSS, and the Attorney General and the State Prosecutor’s Office, the HCJ puts its

trust in the latter and frequently passes messages through them to government

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ministries.42 Such behaviour may be explained by a number of theoretical approaches

to the law and politics.43 However, social choice studies define such behaviour as stra-

tegic. I’ll elaborate more on that in the context of the case.

The Political Role of the Supreme Court

The social and political role of the Supreme Court has been studied from several per-

spectives. Critical legal studies suggest that ruling bodies, groups and individuals gain

legitimacy through judicial institutions such as the Court, which is therefore under-

stood as part of ruling elite and serves its interests.44 Others view it as an interest

group that attempts to advance its own sectoral goals.45 From a sociological perspec-

tive, it is often viewed as contributing to a certain social equilibrium. Parsons argues

that since the Court’s rulings are often in controversial issues, politicians and interest

groups may try to restrain it.46 Indeed, Turk argues that it does not solve conflicts but,

rather, creates and even intensifies existing conflicts.47

From an individualistic (or public choice) perspective, Court judges may certainly

have interests independent of those of certain social groups or elite. Since they are

part of a bureaucratic organization, they are most likely to be interested in preserving

their organization’s power and authorities. Yet, due to the separation-of-power prin-

ciple that gives the Court a monopoly in interpreting laws, it is not a regular bureau-

cratic organization. Rather, due to its unique role towards politicians and citizens

alike, the Court is often a political player – either because the rules of game define

it as such, as, for example, in the United States, or as a result of socio-political pro-

cesses that create incentives for the Court to become an active political player, as, for

example, in Israel.48

The relations of power between the Supreme Court and the politicians in the

executive and legislative authority differ from those in the models analysing the

public administration. Public Choice Theory therefore proposes a separate discussion

of these reciprocal relations according to a Separation-of-Powers Model.49 According

to this model, while it is true that the Supreme Court has the ability and powers to

interpret the decisions of the legislative authority, and thus to change the decision,

to a certain extent, the legislative authority has the ability and powers to revoke

that interpretation, by enacting new legislation. It follows that there is a built-in con-

flict in these reciprocal relations, similar to the reciprocal relations between the poli-

ticians and the bureaucrats subordinate to them. The difference is that not all the

politicians’ means of control over the bureaucrats, such as political appointments,

are available to the politicians in their relationship with the Supreme Court.

Why did the HCJ abdicate its responsibility to control governmental wrong doing

with regard to the appeals to prohibit the interrogation methods? The HCJ details the

various approaches it took with regard to the appeals:

We have answered these requests by suggesting the petitioners file a complaint,

in cases in which physical force has indeed been used upon them (see HCJ

3029/95). In a small number of appeals, we have not been informed of such.

In some appeals, we issued an interim order. In others, we saw no reason to

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issue an interim order. We sometimes specified that ‘we have not received all of

the information concerning the investigation methods the respondent wishes to

adopt and we do not express any opinion with regard to them’.50 In other cases

we have noted that ‘the cancellation of the interim order does not permit, during

the investigation of the petitioner, steps that do not settle well with the law and

the relevant regulations’.51 We did not take a stand, until now, on the question

of whether the GSS is permitted to make use of physical interrogation methods

in circumstances defined as ‘need’.52

As mentioned above, the explanation of the HCJ raises a paradox:

We did so, partly, because we have not heard broad-based claims that would

present the normative picture in full. Now we have received a number of

appeals which include comprehensive claims (written and oral) of the represen-

tatives of both sides. We thank them. Although some of the appeals are general

and others irrelevant, we decided to discuss them, since the law must be deter-

mined with regard to this complex issue. We did so first in these appeals.53

We must therefore examine the HCJ ruling from the perspective of the Israeli

policy toward terrorism and the threat to security. The HCJ ruling regarding the

GSS interrogation methods was reached as part of this policy. The Court has

explained its standing in the torture case as follows:

From the day of its establishment, Israel has been forced to struggle endlessly to

ensure existence as well as its security. Terrorist organizations made it their

business to destroy the state. . . . the primary purpose of an investigation [of

the terror organizations] is, among others, to gather information on terrorists

and their organizations, in order to prevent terror attacks during the planning

stage.54

The State of Israel has also undergone a learning process in developing its under-

standing of how it copes with security threats. During this learning process, two con-

tradicting beliefs have arisen. On the one hand, external and internal threats have

promoted the belief that the state must assume broad authority to fight terrorism,

such as instituting emergency regulations. On the other hand, the desire of the

State of Israel to uphold the universal values of human rights has promoted a contrary

belief – that assuming authority that may harm individual freedom is invalid. Over

time, especially since the 1990s, policy makers have succeeded in adopting an inter-

mediate position. The HCJ decision in 1999 was reached as a result.

In addition, the Rabin government repealed the prohibition against government

meetings with representatives of the Palestinian Liberation Organization. However,

the support for human rights is not unequivocal. Thus, despite the formation of a

belief that increasingly sees human rights as a main issue, considerations of self-

defence and the fear of a breach in security have tempered support for civil rights.

Many issues have remained unsolved, even as recently as 2002, when the General

Security Service law was passed regulating the activity of GSS. The tension

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between these beliefs is reflected in the perception of the Court. It appears the

Supreme Court is afraid to assert its supervisory authority with regard to the war

against terrorism. It is possible that even the judges are not always confident that ter-

rorism may be actively fought while human rights and the highest democratic stan-

dards are fully preserved, even though the Court has stressed that this is its position.55

The Israeli government’s decision in 1987 to establish a national committee to

investigate GSS interrogation methods (the Landau Committee), and the adoption

of their recommendations, reflects the existing tension between the two opposing

beliefs. It reflects, as well, the satisfaction of the public’s demand at the end of the

1980s for a policy that would, on the one hand, promote the security of civilians in

the face of increasingly frequent terrorist attacks, but would, on the other hand,

expose the false testimonies of the GSS interrogators.

The tension between these beliefs, along with the culture of alternative political

participation, sheds light on the public’s problem of collective action as regards

two aspects of public policy: the promotion of public policy regarding human

rights in general, and the formation of public policy regarding GSS interrogation

methods in light of human rights in particular.

Concerning the growing motivation of Israeli citizens to turn to the Court, existing

explanations emphasize the rise of individualistic worldview in Israeli culture in the

1970s and 1980s arguing that the Court found support for its liberal project among

major sectors of Israeli society, as well as among many Israeli elite groups, such as

the press, the business community, and the academic community.56

Furthermore, Menacehm Mautner argues that the group that aimed at making

Israel a more secular, liberal and democratic state controlled many positions in

civil society, yet they failed to gain control over the political institutions of the

State and its administration. The fact that this group could not advance its interests

and view through the political system led them, according to Mautner, to seek the

help of the Supreme Court who had similar views to their own. The Court, in

return, adopted an activist approach in order to ‘. . . openly and forcefully proclaim

its values, confronting those who sought to scuttle this and catalyze its suppor-

ters’.57 In other words, Mautner argues that the Court took a stand in the cultural,

social and political debate to defend liberal values against significant groups who

challenged these values counting on the support of sympathetic sectors in Israeli

society.

Mautner’s argument, which is supported by various researchers, actually means

that the Supreme Court has been a channel for specific groups in Israeli society to

advance their liberal values against the backdrop of these values among many

other sectors and systems of Israeli society.58

However, in his book, Gerald Rosenberg shows that the US Federal Supreme

Court has not generated significant social changes in the United States.59 Following

Rosenberg, Gad Barzilai distinguished between several political dimensions: the

rhetoric of court rulings and possible changes in legal interpretation, minor or second-

ary social changes, and the dimension that deals with major social alteration. Barzilai

concludes that despite minor changes no major changes in the socio-political charac-

teristics of the state and the public have taken place in Israel.60

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The examination of the role of the HCJ in the process of policy design described

so far indicates that the influence of the HCJ is particularly strong with regard to the

decision itself, not in terms of understanding the problem or taking a position on it.

The HCJ justices cannot initiate a discussion, because they can only rule on the

appeals that are made to them. Usually, the law is clear and the courts apply it.

However, what happens when the law is not clear? This is the kind of dilemma the

High Court of Justice had to cope with in the torture case. The Court states in its

ruling:

Is there a legal directive that authorizes the GSS interrogators to employ the

methods we discussed? Such a directive, pertaining to interrogations by GSS

personnel as such, does not exist.61

As mentioned, scholars researching the strategic approach view judges as stra-

tegic players who have defined, balanced policy preferences. However, scholars

studying the sincere approach assume that judges reach decisions on the basis of ideo-

logical individualism. According to them, judges are not influenced by other judges or

political players, and therefore do not act strategically, but rather, sincerely. We can

identify various considerations that the HCJ used in arriving at its ruling on the torture

case. Some considerations are strategic, taking into account the positions of the

various players, and some are ideological, expressing a value conflict between the

dogmas of security and liberalism. The resulting ruling reflects a cautious progress

toward liberalism as expressed in many Supreme Court decisions and a fear that

the GSS might damage future torture policies especially in light of the in ability to

govern rooted in many fields in Israel. Thus, the HCJ prefers that the bureaucrats

in the legal system remain in key positions, due to the failure of the political

system to handle the situation in the Landau decision.

When the Court issues its decision, it deals strategically with various audiences

and cautiously validates its legitimacy. Thus, the High Court plays to the local audi-

ence of the human rights organizations, some of which appealed both to it and to the

international audience:

This conclusion is in keeping with the agreed-upon international law – to which

Israel is a party – forbidding the use of torture, ‘cruel, inhuman treatment’ and

‘degrading treatment’. These prohibitions are absolute. There are no exceptions

and no equivocating.62

Another audience is comprised of the local and international legal communities,

especially the American community.63 Thus, for instance, the ruling was translated

into English immediately and distributed around the world. The Court also tends to

base its position on articles written by Israeli and foreign legal scholars and to rule

consistently.

Furthermore in the torture case, the notion of liberal ideology was reaffirmed. For

instance, when asked whether a legal directive exists that authorizes the GSS interro-

gators to apply physical means even when there is no ‘ticking bomb’, the HCJ

responded:

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The authority to interrogate harms the individual’s right to freedom. The

‘residual’ authority of the government is not the source of authority that

harms the right to freedom. Instead, it empowers the government to take

action when it finds an ‘administrative gap’.64 Such an ‘administrative gap’

does not exist in this case, since it has already been ‘filled in’ by the principle

of personal freedom. Infringement of this right requires a special order.65

President Shamgar notes:

There are actions that do not lie within the boundaries and the power of the gov-

ernment, since their performance, without the appropriate authorization, con-

flicts with normative basic perceptions resulting from the kind of rule we

adopted. It is also the case with regard to the basic rights that are a part of

our positive rule, regardless of whether they are enumerated in a Basic Law.66

The Court compares the liberal position with the security-oriented position:

From the day of its establishment, Israel has been forced to struggle endlessly to

ensure existence as well as its security. Terrorist organizations made it their

business to destroy the state. Terrorist acts and the disruption of orderly life

are the means they use to achieve their end. They do not differentiate

between military and civilian objectives. They execute terror attacks, in

many civilians are murdered in public places, public transportation, squares

and streets, cinemas and coffee shops. They do not differentiate between men

and women, etc. They act cruelly and without mercy.67

However, the fact that the result of the HCJ ruling in the torture case suits the

Court’s liberal ideology does not necessarily prove that ideology alone shaped this

ruling. The above analysis emphasizes the considerable attention the Court paid to

other factors, and the resulting ruling should not be viewed as purely strategic in

nature. The overall results explain the determination and the design of public

policy, as reflected in the torture case.

Conclusions

This article presented the claim that security policy in the interrogation case results

from the actions of politicians, bureaucrats, interest groups all of whom function in

an environment conditioned by non-governability, judicialization, and an alternative

political culture. Since the 1990s, the HCJ has consistently promoted a formal agenda

of human rights. The GSS and the Attorney General’s office interact closely and

cooperate due to their similar interests, interpersonal relationships and their mutual

institutional dependency. Special interest groups such as B’Tselem and other

human rights organizations have also contributed greatly to increasing the role of

the HCJ in the area of security. The analysis pointed out the normative dualism

among most of the public in Israel, a dualism that vacillates between the need for

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security and the desire to uphold human rights. Indications are that the liberal

approach that favours human rights has been on the rise and parallels the decline

of faith in the political system.

It seems that rhetorically, Israel embraces the concept of the freedom of the indi-

vidual. On the operative level, Israel chooses to place the implementation of the prin-

ciple into the hands of Israeli bureaucrats, headed by the High Court and its

representatives – the Attorney General and the Legal Advisor. All of these groups

and individuals function as gatekeepers of the General Security Service. In actuality,

though, there is strong interaction and cooperation between the GSS and the Attorney

General, due to similar interests, interpersonal relationships, and the mutual insti-

tutional dependency of the two organizations.

A report published in April 2003 by the Public Committee Against Torture

revealed the following: the bodies supposed to keep the GSS under scrutiny and

ensure that interrogations are conducted lawfully acted, instead, as rubberstamps

for decisions made by the GSS. The High Court of Justice did not accept even one

of the 124 petitions submitted by the Public Committee Against Torture against pro-

hibiting detainees under interrogation from meeting their attorneys during the years

2002–03. The State Prosecutor’s Office routinely transfers the complaints made by

interrogees to a GSS agent for investigation, and it is little wonder that he did not

find in even a single case that GSS agents tortured a Palestinian unnecessarily. The

Attorney General grants – wholesale, and with no exception – the necessity

defence approval for every single case of torture.

However, in 1999 Prime Minister Ehud Barak issued a direct order of forming the

Sokhar-Mizuz committee to establish a draft law that gives the intelligence officers

the authority to use torture. The majority of the members of the committee supported

giving the intelligence officers the authority to use pressure in exceptional cases in

order to force confessions from detainees during interrogation so as to save lives.

The minority of the members of the committee, including Yossi Beilen, the Israeli

Minister of Justice, opposed the draft law. On 15 September, it was reported that

the Ministerial Committee on General Security Service Interrogations was due to

meet to consider how the government should respond to the High Court decision

banning interrogation involving physical or mental pressure. The day before,

Justice Minister Yossi Beilin had told the Knesset that legislation seeking to

bypass the ruling would be unconstitutional, would conflict with the Basic Law:

Human Dignity and Freedom, and would not withstand a High Court challenge.

The Justice Ministry refused to respond to a newspaper report that Deputy Attorney

General Yehudit Karp had prepared an opinion for Prime Minister Barak opposing

passage of such a law. Unlike the Justice Minister, Barak and Attorney General

Elyakin Rubinstein had publicly expressed support for the legislation, and GSS

leaders had reportedly insisted upon it.68

It is worth noting that in May 1991, an ad hoc committee composed of members

of the GSS and the Justice Ministry was appointed to review complaints against the

conduct of GSS investigators during interrogation at the Gaza Prison investigation

section. The committee identified a number of cases in which investigators did not

act in accordance with the guidelines for treatment of detainees. As a result of the

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Committee’s findings, action has been taken against GSS investigators involved in

those cases.69

In fact the interrogation services began to refine some of their methods of torture,

but kept torturing generally in the aftermath of the High Court ruling in September

1999 regarding prohibiting the use of some torture methods. Changes included repla-

cing Jewish torturers with Arab torturers and sending detainees to the collaborators

rooms known as ‘the shameful rooms’, where interrogation would be carried out in

a systematic way involving degradation, threats and starvation for a period of more

than one month in some cases.

On 2002, the GSS law was passed. The legislature chose not to legally establish

the GSS’s authority to conduct interrogations. It is worth noting that in all issues

regarding the promotion of human rights, an accelerated judicial activism might be

interpreted by various groups as diminishing respect for the law in the eyes of the

public, at least among those who regard the court system as communicating messages

to a part of the population. The scholar Leon Shelef wrote, ‘the rule of law had been

accomplished, but the authority of law was not implemented’.70

NOTES

1. Kenneth Camiel, ‘The Emergence of Human Rights Politics in the United States’, The Journal of Amer-ican History, Vol.86, No.3 (Dec. 1999), pp.1231–50; Linda C. Keith, ‘Constitutional Provisions forIndividual Human Rights (1977–1996): Are They More than Mere Window Dressing?’, PoliticalResearch Quarterly, Vol.55, No.1 (March 2002), pp.111–43; Thomas Risse, Stephen C. Ropp andKathryn Sikkink, ‘The Socialization of International Human Rights Norms into Domestic Practices’,in Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (eds), The Power of Human Rights, Inter-national Norms and Domestic Change (Cambridge: Cambridge University Press, 1999), pp.1–38.

2. The former name of Israel’s security agency, General Security Service or GSS, has been changed toIsrael Security Agency or ISA. It still is widely known as Shin Beth, the Hebrew acronym for thefirst two words of its previous name.

3. HCJ Case 5100/94: Public Committee Against Torture in Israel v. The State of Israel PD. 54(4) 817(henceforth: HCJ the interrogation case).

4. The interrogator takes hold of the prisoner by the collar and violently shakes him for over a minute.5. In the controversial shebach position, a prisoner’s legs are tied to a small stool and his hands are tied

behind his back with a bag covering his head sometimes for more then 48 hours continuously in whichhe is given only five minute breaks between each sitting. During interrogation periods the prisoner isusually not allowed to sit in a normal sitting position but is forced to crouch down.

6. Having a suspect crouch on the tips of his toes for long periods of time.7. HCJ interrogation case, Paragraph 40.8. Daphne Barak-Erez, Milestone Judgments of the Israeli Supreme Court (Tel Aviv: Ministry of Defence

Publications, 2003), pp.21–8.9. The law ruled, for example, that the Prime Minister of Israel is in charge of the GSS and carries min-

isterial responsibility for its activity. The head of the GSS answers to the prime minister. The GSS headwill serve five years in duty, unless there is a state of emergency. For the law in Hebrew see <http://www.knesset.gov.il/Laws/Data/law/1832/1832_All.html>.

10. Gad Barzilai and Efraim Inbar, ‘The Use of Force: Israeli Public Opinion on Military Options’, ArmedForces and Society, Vol.23, No.1 (Fall 1996), pp.49–50; Gabi Ben-Dor, ‘Civil–Military Relations inIsrael in the Mid-1990s’, in Anita Shapira (ed.), Independence: The First Fifty Years (Jerusalem:Shazar Center, 1998), pp.471–86 (Hebrew); Aharon Kleiman and Reuven Pedatzur, RearmingIsrael-Defence Procurement through the 1990s (Boulder, CO: Westview Press, 1991); Avner Yaniv,‘Introduction’, in Avner Yaniv (ed.), National Security and Democracy in Israel (Boulder, CO:Lynne Reinner, 1992).

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11. Michael Howlett and Evert Lindquist, ‘Policy Analysis and Governance: Analytical and Policy Stylesin Canada’, Journal of Comparative Policy Analysis Research and Practice, Vol.6, No.3 (2004),pp.225–51.

12. Assaf Meydani and Shlomo Mizrahi, ‘The Politics and Strategies of Defending Human Rights: TheIsraeli Case’, Israel Law Review, Vol.39, No.1 (March 2006), pp.39–56.

13. ‘The Landau Committee on Shabak’s Interrogation Methods 1987’, in Aharon Barak (ed.), LandauBook, Vol.A (Tel Aviv: Bursi Law Books, 1995) (Hebrew); see also L. Shelef, ‘The Lesser Evil andthe Greater Good – On the Landau. Commission Report, Terror and Torture’, Plilim: Israel Journalof Criminal Justice, Vol.1 (1990), pp. 185–219 (Hebrew).

14. B’Tselem – The Israeli Information Center for Human Rights in the Occupied Territories report on theGSS use of torture: <http://www.btselem.org/english/torture/background.asp>.

15. HCJ the interrogation case Paragraph 17.16. HCJ 5100/94 Public Committee Against Torture in Israel v. Government of Israel.17. HCJ 7563/97 Abed Al-Rahman Ghanimat et al. v. Minister of Defense et al.; HCJ 7628/97 Fuad Qur’an

et al. v. Minister of Defense et al.18. The other three were HCJ 4054/95 ACRI – the Association for Civil Rights in Israel v. Prime Minister

of Israel et al., HCJ 6536/95, Hatem Abu Zaidah v. General Security Services, and HCJ 5188/96, Wa’elAl-Ka’aqeh v. General Security Services, Bagatz 6536/97. See also: The Case Against Torture inIsrael: A Compilation of Petitions, Briefs and Other Documents Submitted to the Israeli High Courtof Justice Edited and Translations by Allegra Pacheco, Adv. by the Public Committee AgainstTorture in Israel, Jerusalem, May 1999, <http://www.stoptorture.org.il/eng/images/uploaded/publications/16.doc>.

19. HCJ interrogation case Paragraph 32.20. HCJ interrogation case Paragraph 23.21. HCJ interrogation case Paragraph 31.22. HCJ interrogation case, Paragraph 16.23. The paradox also lies in the data. According to the report of the Al Hak organization, based on 700

interviews with Palestinians held between May 1988 and May 1992, at least 94 per cent of those inter-rogated experienced torture and abuse that were beyond moderate physical pressure. In an interviewwith the Kol Israel radio station, cited in the Haaretz daily newspaper, the late Prime Minister YitzchakRabin said that the method of ‘shaking’ was applied to as many as 8000 detainees.

24. See, for example, the Bergman HCJ case 1969, in which Justice Landau broadens the equality provisionin the fourth clause of Basic Law: The Knesset, to include the right to be elected. He concludes that thefinance law has an indirect effect upon the clause and thereby harms it. Another example is the case ofBank Mizrahi 2005. The opinion of President Barak and Justices Zamir, Levin and Matza on theconstitutive authority of the Knesset.

25. Gad Barzilai, ‘Courts as Hegemonic Institutions: The Israeli HCJ in a Comparative Perspective’, IsraelAffairs, Vol.5 (1999), pp.15–33.

26. Asher Arian, David Nachmias and Ruth Amir, Executive Governance in Israel (Jerusalem: The IsraelDemocracy Institute, 2002) (Hebrew).

27. Gideon Doron and Michael Harris, Public Policy and Electoral Reform: The Case of Israel (Lexington,MA: Lexington Books, 2000).

28. Kenneth M. Holland (ed.), Judicial Activism in Comparative Perspective (London: Macmillan, 1991).29. Martin Edelman, ‘Israel’, in Neal C. Tate and Torbjorn Vallinder (eds), The Global Expansion of Judi-

cial Power (New York and London: New York University Press, 1995), pp.403–15. Also see Mena-chem Hofnung, ‘Israeli Constitutional Politics: the Fragility of Impartiality’, Israel Affairs, Vol.5(1999), pp.34–54.

30. Itzhak Galnoor, ‘The Judicialization of the Public Domain in Israel’, Law and Government, Vol.7, No.1(2004), pp.355–86 (Hebrew).

31. Sam N. Lehman-Wilzig, Wildfire: Grassroots Revolts in Israel in the Post-Socialist Era (Albany:SUNY Press, 1992).

32. Shlomo Mizrahi and Assaf Meydani, ‘Political Participation via the Judicial System: Exit, Voice andQuasi-Exit in Israeli Society’, Israel Studies, Vol.8 (August 2003), pp.118–36.

33. Dan Horovitz and Moshe Lissak, Trouble in Utopia: The Overburdened Polity of Israel (Albany: StateUniversity of New York Press, 1989).

34. Joel Migdal, Through the Lens of Israel: Explorations in State and Society (Albany: SUNY Press,2001); ShlomoMizrahi and Assaf Meydani, ‘Political Participation’; Ehud Shprinzak, Everyman What-soever is Right in His Own Eyes: Illegalism in Israeli Society (Tel Aviv: Sifriat Poalim, 1986)(Hebrew).

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35. Asher Arian (1997) The Second Republic – Politics in Israel (Tel Aviv: Zmora-Bitan), pp.182,189, 190.

36. There are numerous examples of favourable judicial rulings by the Supreme Court that have contrib-uted toward enhancement of civil rights, for example, in matters of religious practice, in light of devel-opments in Israeli society. The Court struck down municipal bylaws that forbade the sale of pork. H.C.117/55; 72/55 Siegfried Avraham Fraidi v. Tel Aviv-Jaffa Municipality and others, Shmuel Mendelssonv. Tel Aviv-Jaffa Municipality, PD 10(2) 734. The Court recognized the right to alternative burial, yearsbefore the Knesset set this right into law. H.C. 397/88 Menucha Nechona v. Minister of ReligiousAffairs (not published). The Court has also played a primary role in defending the status of femalemembers of public religious bodies. HCJ 153/87. Leah Shakdiel v. Minister of Religious Affairset al. PD 42(2) 221; HCJ 753/87. Poraz v. Mayor of Tel-aviv PD 42 (2) 309. The Court clarifiedthat the Chief Rabbinate and its associated bodies, including religious court judges and rabbinicalcourts, are public bodies that are subject to the rule of law and the judicial review of the High Courtof Justice and must therefore abide by non-discrimination laws. H.C. 732/84 Tzaban v. Minister ofReligious Affairs, PD 40(4) 141.

37. HCJ the interrogation case, Paragraph 17.38. For the activities of NGO’S see Yael Ishay, Interest Groups in Israel – The Test of Democracy (Tel

Aviv: Am Oved, Eshkol Institute, The Hebrew University, 1987) (Hebrew).39. HCJ the interrogation case, Paragraph 9.40. David Zecharia, ‘On Torture Chambers and Acoustic Walls’, Politics, Vol.10 (Winter 2003), pp.61–87

(Hebrew).41. Gad Barzilai and David Nachmias, ‘Governmental Lawyering in the Political Sphere: Advocating the

Leviathan’, Israel Studies, Vol.3, No.2 (1998), pp.31–45.42. Yoav Dotan, ‘Do the Haves Still Come Out Ahead? Resource Inequalities in Ideological Courts: The

Case of the Israeli High Court of Justice’, Law & Society Review, Vol.33, No.4 (1999), pp.1059–80.43. For example, the functionalist-legalist approach explains this behaviour by the fact that the legal pro-

fession is built into the structural solidarity. Hans Kelsen, General Theory of Law and State(Cambridge, MA: Harvard University Press, 1945); John R. Schmidhauser, ‘Introduction: TheImpact of Political Change upon Law, Courts, and Judicial Elites’, International Political ScienceReview, Vol.13, No.3 (1992), pp.223–33.

44. Robert Mangabeira Unger, Knowledge and Politics (New York: Free Press, 1975); CatharineA. MacKinnon, ‘Toward Feminist Jurisprudence’, in Catharine A. MacKinnon (ed.), Toward a Fem-inist Theory of the State (Boston: Harvard University Press, 1989); Ran Hirschl, ‘The PoliticalOrigins of Judicial Empowerment through Constitutionalization: Lessons from Israel’s ConstitutionalRevolution’, Comparative Politics, Vol.33, No.3 (April 2001), pp.315–35.

45. Glendon A. Schubert, Political Culture and Judicial Behavior (Lanham: University Press of America,1985); Thomas A. Cowan, ‘Group Interests’, Virginia Law Review, Vol.44 (1958), pp.331–45.

46. Talcott Parsons, ‘The Law and Social Control’, in William M. Evan (ed.), Law and Sociology(New York: The Free Pres,1962), pp.56–72; Philippe Nonet, ‘For Jurisprudential Sociology’, Lawand Society Review, Vol.10, No.4 (Summer 1976), pp.525–45.

47. Austin T. Turk, ‘Law as a Weapon in Social Conflict’, Social Problems, Vol.23, No.3 (Feb. 1976),pp.276–91.

48. See, for example, Lee Epstein and Jack Knight, The Choices Justices Make (Washington, DC: Con-gressional Quarterly Press, 1998). According to Epstein and Knight, justices may be primarilyseekers of legal policy but they are not unsophisticated characters who make choices basedmerely on their own political preferences; instead they are strategic actors who realize that theirability to achieve their goals depends on a consideration of the preferences of others, of thechoices they expect others to make, and of the institutional context in which they act. Rafael Gelyand Pablo T. Spiller, ‘A Rational Choice Theory of Supreme Court Statutory Decisions with Appli-cations to the State Farm and Grove City Cases’, Journal of Law, Economics and Organization,Vol.6, No.2 (Fall 1990), pp.263–300. Gely and Spiller provide a microanalytic model of SupremeCourt statutory decisions. Their model combines the rational choice modelling strategy with thenotion that institutions matter in the design of public policy; for an attitudinal model see: JeffreyA. Segal, ‘Separation-of-Powers Games in the Positive Theory of Congress and Courts’, AmericanPolitical Science Review, Vol.91, No.1 (March 1997), pp.28–44. According to the attitudinaliststhe rules and structures of the US political system allow the justices to vote sincerely; CornellClayton and Howard Gillman (eds), Supreme Court Decision Making, New InstitutionalistApproaches (Chicago: Chicago University press, 1999); Lawrence Baum, The Puzzle of JudicialBehavior (Ann Arbor: University of Michigan Press, 1997).

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49. B.A. Marks, A Model of Judicial Influence on Congressional Policymaking: Grove City College v. Bell,Working Papers in Political Science, P-88-7 (Stanford: The Hoover Institution, Stanford University,1998); J.A. Segal, ‘Separation-of-Powers Games in the Positive Theory of Congress and Courts’,American Political Science Review, Vol.91 (1997), pp.28–44; Stefan Voight and Eli M. Salzberger‘Choosing Not to Choose: When Politicians Choose to Delegate Powers’, KKLOS, Vol.55 (2002),pp.289–310.

50. HCJ 8049/96, Hamdan v. the General Security Service (unpublished).51. HCJ 336/96, HCJ 7954/95, Balbisi v. the General Security Service.52. HCJ interrogation case, Paragraph 17.53. HCJ interrogation case, Paragraph 17.54. HCJ interrogation case, Background Paragraph.55. Daphne Barak-Erez, Milestone Judgements of the Israeli Supreme Court, pp.21–8.56. Menachem Mautner, ‘Law and Culture in Israel: The 1950s and the 1980s’, in Ron Harris, Alexander

Kedar, Pnina Lahav and Assaf Likhovski (eds), The History of Law in a Multi-cultural Society: Israel1917–1967 (Dartmouth: Ashgate, 2002), pp.175–217.

57. Ibid., p.201.58. Martin Edelman, ‘The Judicial Elite of Israel’, International Political Science Review, Vol.13 (1992),

pp.235–48; Gershon Shafir and Yoav Peled, Being Israeli: The Dynamics of Multiple Citizenship(Cambridge: Cambridge University Press, 2002); Dan Avnon, ‘The Israeli Basic Laws’ (Potentially)Fatal Flaw’, Israel Law Review, Vol.32 (1998), pp.535–66.

59. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (Chicago: Universityof Chicago Press, 1991).

60. Gad Barzilai, ‘Justices as a Policy-Makers’, in Dan Korn (ed.), Public Policy in Israel: Perspectivesand Practices (New York and Oxford: Lexington Books, 2002), pp.71–7.

61. HCJ, interrogation case, Paragraph 19.62. HCJ interrogation case, Paragraph 21.63. Mautner, ‘Law and Culture in Israel’, pp.175–217.64. HCJ 2918/93, Municipality of Kiryat Gat v. the State of Israel, ruling 47 (832, 843 (5).65. HCJ interrogation case, Paragraph 19.66. HCJ interrogation case, Paragraph 19.67. HCJ interrogation case, Introductory Paragraph.68. Ha’aretz, Jerusalem Post, 15 Sept. See also United Nations, General Assembly Fifty-Fifth Session,

Agenda Item 85, Report of the Special Committee to Investigate Israeli Practices Affecting theHuman Rights of the Palestinian People and Other Arabs of the Occupied Territories, 11 Sept. 2000.

69. United Nations, General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrad-ing Treatment or Punishment, CAT/C/33/Add.2/Rev.1, 18 Feb. 1997, available at <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.33.Add.2.Rev.1.En?OpenDocument>.

70. Leon Shelef, The Rule of Law and the Nature of Politics (Tel Aviv: Papirus Publishing House Tel AvivUniversity Press, 1996), p.126.

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