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The Landau Commission Report – Was the Security Service Subordinated to the Law, or the Law to the “Needs” of the Security Service?

Published online by Cambridge University Press:  16 February 2016

Mordechai Kremnitzer
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The principal significance of the Landau Commission Report lies in its conclusion that, under the provisions of the necessity defence, the exertion of a moderate measure of physical pressure is both justifiable and permissible in the interrogation of persons suspected of hostile terrorist activity (HTA). This conclusion extends both forward to the future and backward to the past. For the future, it licenses the employment of physical pressure in such investigations; as to the past, it lends significant support to another of the Commission's conclusions, that no proceedings be instituted against persons who were found by the Commission to bear prima facie responsibility for serious criminal offences (i.e., perjury at the very least). In my opinion, the Commission's central conclusion and its implications are unjustified. It is based upon factual findings and evaluative judgments which are, as I shall attempt to demonstrate, problematic.

Before embarking, however, I should like to sketch a synoptic view of the Report for the reader, which will then enable me to expand upon the connection between the Commission's factual and evaluative findings and its normative conclusions. Regarding the facts, the Commission determined that: 1) GSS interrogators had systematically employed physical pressure on HTA suspects; and 2) interrogators had lied about this fact to the courts. The Commission's normative conclusions were that it is permissible to employ physical pressure in HTA interrogations, but forbidden to lie to the court.

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Israel Law Review , Volume 23 , Issue 2-3: Symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity , Spring–Summer 1989 , pp. 216 - 279
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1989

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References

I would like to express my deep gratitude to the Alexander von Humbolt Fund, whose generous assistance made this paper possible, and to Prof. Ruth Gavison and Ms. Dana Alexander for their useful comments.

1 Detailed guidelines on the nature of this pressure and the conditions for its employment are found in the confidential part of the Report. This makes commenting on the Report difficult, but does not require abandoning the attempt altogether.

2 See Report, pp. 6–8, and the court decision in the affair: Nafsu v. Chief Military Prosecutor (1987) 41(ii) P.D. 631; 7 S.J. 263.

3 Especially if the pressure applied in those isolated cases was actually severe, more than that applied systematically according to the GSS investigators' testimony before the Commission.

4 These Rules were incorporated into Israeli law from British law through Supreme Court judgments. Ali Abdul Hadi and Muflih Za'arur v. Attorney General (1950) 3 P.D. 13, at 33; and Hassm Yassein v. Attorney General (1963) 17 P.D. 1541, at 1566. The essence of these rules, for our purposes, is the protection of the suspect's right to remain silent, of which the interrogator is bound to inform the suspect. See Report, para. 3.5.

5 Jeremiah 13·23.

6 One should question, in general, the ability of a Commission of Inquiry to seek out the truth in an adversarial legal system, where judges are habituated to playing a relatively passive role.

Additional evidence that the improper use of means of interrogation and the practice of perjury were not systematic in the GSS, or at least became so only in later stages, can be found in the Report itself: a memorandum issued by the head of the Investigations Unit in December 1971, according to which “[t]here is no reason for a witness to lie, even if he deems his lie would aid State security” (R., para. 2.29); the internal contradiction in the statement of the Head of the Service in 1976 on the subject of wielding physical pressure (R., para. 2.49); and to a certain degree, the fact that “[i]n courses, training and meetings …, not a word was said” on the subject of testifying and the problems raised by it (R., para. 2.30).

7 The chief obstacle to the pursuit of the truth – the tendency to believe what one wishes to believe – applies, needless to say, to myself as well.

8 I do not attribute to the Commission a conscious, intentional tendency to exaggerate. My claim is only that the picture portrayed by the Report is at variance with reality.

9 The Commission does go on to state that “[n]evertheless, it is incumbent upon the State and its authorities, including the GSS, to preserve humanitarian behaviour and human dignity in their treatment of terrorists, in order to uphold the credo of the State itself as a law-abiding State grounded in fundamental concepts of morality” (R., para. 4.5). However, the description of HTA suspects quoted in the text creates the impression that they are of inferior status, at least morally, as their rights do not emanate from the simple fact that they are human beings, but rather from the interest and duty of the State to maintain a certain moral standard.

10 Perpetrated, at least impliedly, by GSS personnel, to conceal their involvement in murder in the No. 300 Bus affair.

11 One has to wonder: if the investigators acted so in an affair to which they gave special attention, given the suspect's position as an IDF officer accused of severe offences, what was their attitude to the pursuit of truth concerning more routine suspects?

12 See Report, para. 2.11.

13 Ruthven, M., Torture – the Grand Conspiracy (London, 1978) 213–214, 282–284.Google ScholarAmnesty International, Torture in the Eighties (London, 1984) 4.Google ScholarPeters, E., Torture (New York, 1985) 162.Google Scholar

14 The description in the text of the terrorist organizations refers to their positions at the time of the preparation ofthe Report by the Commission, and it is based on the analysis done by the GSS itself.

15 Attorney General v. Kaminer and others (1987) Magistrate's Court, Ramle.

16 If objectives are considered, then proper moral judgment, which purports to take into account all relevant factors, must consider the agent's motives as well.

17 Political subversion encompasses, inter alia, publication of praise or support for violent terrorist acts or acts which publicly manifest identification with a terrorist organization, as well as the maintenance of relations with functionaries of a terrorist organization Prof S.Z. Feller has called the offence of identification with or sympathy for a terrorist organization “an extreme extension ofthe concept of offence and of the scope of criminal responsibility” See Elements of Cinninal Law, vol. I (Jerusalem, 1984, in Hebrew) 32–33

18 Which precede the state and are not contingent upon its recognition of them.

19 To strive for complete security would inevitably lead to the relinquishment of the liberal character of the State. Only at the price of denying liberty is it possible to attain complete security, as it would be necessary to impose criminal liability for acts of preparation, and even for the expression of dangerous views which could lead to the committal of harmful acts or diminish public faith in and respect for the system and its values This in turn would require taking action against anyone who demonstrated dangerous tendencies or even, perhaps, against anyone who was potentially dangerous. while abandoning the principle of culpability The right to privacy would also be an obstacle in the way of the achievement of complete security It is clear, in addition, that complete security is an illusion, since the wide powers accorded the authorities in order to achieve such security would be inimical to the personal security of the citizens.

Moreover, if the assumption is that there are cases where it is impossible to uncover serious crimes or to extract information vitally important for the saving of human life without the use of physical pressure, such cases must also exist in the context of the work of the police Should “incondemnable necessity” be recognized there as well?.

20 “There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence”. Colonial civil servant quoted in Peters, supra n. 13, at 136.

21 Including instilling an appreciation for the inviolable value of the human dignity of every person, for the ever-present possibility of a mistake in the initial investigatory hypothesis, etc.

22 Triffterer, O., “Das ‘Folterverbot’ im nationalen und internationalen Recht-Anspruch und Wirklichkeit” in Amnesty International, Folter (Baden Baden, 1976) 125, at 161Google Scholar: Schmidt, E., Einführung in die Geschichte der Deutschen Strafrechtspflege (Göttingen, 3 Auflage, 1965) 98–99.Google Scholar

23 Cmnd. 4901, sec. 2.

24 In addition to the missed distinctions mentioned in the text, the Commission does not properly distinguish between private-defence against an illegal attack and necessity Siudo sensu. The Commission attributes to Prof. Feller a distinction between the “protection of others” (in Prof Feller's terminology, necessity stricto sensu) and self-defence” (R., 55). However, the distinction that Prof. Feller actually makes, which is the important distinction, is between “private-defence” (self-protection or the protection of others at the expense of the interest of an aggressor) and “necessity stricto sensu” (self-protection or the protection of others at the expense of a non-aggressor's protected interest, i.e. a “choice of evils”). Thus the distinction made by Prof. Feller is not between the “protection of others…and self defence”, but rather between two situations in both of which a person may act to protect his own interest or that of another (See Feller, S.Z., “Necessity Stricto Sensu as a Situation Which Negates the Criminality of an Act” (1972) 4 Mishpatim 5Google Scholar, Feller, S.Z., Elements of Criminal Law, vol. II (Jerusalem, 1987, in Hebrew) 387ff.Google Scholar

The Commission also fails to distinguish between true necessity and imagined necessity The Report states that “the correct test for this [the existence of necessity] is what the doer of the deed reasonably believed, and not what the situation actually was” (R., 61). But that conclusion cannot be justified by the language of the Penal Law Sec. 22 states that “A person may be exempted from criminal responsibility…provided that he did no more than was reasonably necessary for that purpose and that the harm caused by him was not disproportionate to the harm avoided”. The provision clearly refers to the objective, factual situation which actually existed. This is not to say that a perpetrator's mistake is to be ignored. But taking such a mistake into account places us in the realm of imagined necessity and requires the application of the mistake-of-fact defence under sec. 17 to the necessity defence.

25 “The Right Against Self-lncrimination. An Obstacle to the Supervision of Interrogation” (1986) L.Q.R. 45.

26 The criterion of a concrete plan of action is significant, as, for example, in the context of acts of preparation The current tendency in law is to sanction such acts only if they were carried out in the context of a concrete plan of action, whereas in the past, it was sufficient if they were executed with a particular forbidden purpose See, for example: Stree, in Schönke-Schröder Strafgesetzbuch Kommentar (München, 23 Auflage, 1988) 874Google Scholar, Simeonidore-Kastanidou, E., “Der strafrechtliche Schutz der Demokratie” in Der strafrechtliche Schutz des Staates (Neuwied, Bemmann/Manoledakis (Hersg) 1987) 11, at 16.Google Scholar It should be noted that the Commission's assumption that terrorist organizations always willingly use all the means at their disposal is not, apparently, accurate.

27 And what, according to the Commission, of a person suspected of involvement in an actual act of terrorism, but who is suspected of having information of little significance? What determines the degree of pressure which may be applied to him - the suspicion regarding what he has done, or the suspicion regarding the information he possesses?.

28 For instance, the electrification of a fence or a house due to frequent trespasses or break-ins. where the purpose is to frustrate similar attacks in the future.

29 Also when an agent acts to save his physical integrity or life, he does not act out of duty, but rather out of his interest in life or physical integrity As for an act intended to save the interest of another, our necessity provision does indeed condition such action upon the agent's bearing responsibility for the other, but this is not a universal characteristic of the necessity defence, and the rationale of the defence should not be deduced from it.

30 The sources for the discussion of necessity are. Feller, supra n. 24; Enker, A., Duress and Necessitv in the Criminal Law (Ramat Gan, 1977, in Hebrew)Google Scholar; Williams, G., Textbook of Criminal Lan (London, 2nd ed, 1983) 597Google Scholar, Cross, and Jones, , Introduction to Criminal Law (London, 11th ed., 1988) 581Google Scholar; Smith, J.C., Hogan, B., Criminal Law (London. 4th ed., 1978) 131Google Scholar; LaFave, W. R., Scott, A.W.. Substantive Criminal Law (St. Paul, 1986) vol. I. p. 627Google Scholar: Robinson, P.H.. Criminal Lan Defences (St Paul, 1984) vol. II, p. 45Google Scholar; Hirsch, H.J. in Strafgesetzbuch Leipziger Kommentar (Berlin, 36 Lieferung, 1985) §34Google Scholar; Lenckner, T. in Schönke-Schröder Strafgesetzbuch Kommentar (Munchen, 23 Auflage, 1988) §34Google Scholar; Wilhelm, J., Eingriffsbefugnisse des Staates aufgrund rechtfertigenden Notstands aus strafrechtlicher Sicht (Köln, 1980)Google Scholar, Huber, K., §34 StGB als Rechtfertigungsgrund fur hoheitlicher Handeln (München, 1982)Google Scholar, Ruppelt, M., Massnahmen ohne Rechtsgrundlage (München, 1983)Google Scholar; Küper, W. (i), Darf sich der Staat erpressen lassen (Heidelberg, 1986)Google Scholar, Küper, W. (ii), “Differenzierung zwischen Rechtfertigungs und Entschuldigungsgründe Sachgerecht und notwendig” in Eser, A., Fletcher, G., Rechtfertigung und Entschuldigung (Freiburg, 1987) vol. I, p. 315Google Scholar, Grebing, G., “Die Grenzen der rechtfertigenden Notstands im Strafrecht” (1979) GA (Goltdammner's Archiv) 81.Google Scholar

31 See. 24 of the Criminal Law, 1977.

32 Even if one places the GSS's role of Fighting Arab terrorism under the rubric of “the person … of others whom he was bound to protect”, still this power would not be granted exclusively to the GSS, as this condition is met at least by the Israeli Defence Forces and the Police as well.

33 Since in the realm of what would be prohibited if not for the “necessity”, the law enforcement agencies would have the authority to intervene both preventively and reactively. Once the realm becomes permitted by virtue of “necessity”, it becomes closed to such intervention.

34 Katlan and others v. Prisons Authority (1980) 34(iii) P.D. 295, at 298.

35 Ibid., at 308.

36 Such as the degree of suspicion required as a condition for the use of authority, the precise object of this suspicion, etc.

37 Including the view opposite to that of the Commission which, apparently, had no advocate before the Commission.

38 See section 1 of the German Basic Law and G. Dürig's commentary. Maunz-Dürig, , Grundgesetz Kommentar (München, 27 Lieferung, 1989)Google Scholar Art. 1.

39 Section 302(c) of the American Model Penal Code explicitly lays down as one of the conditions of necessity “a legislative purpose to exclude the justification claimed does not otherwise plainly appear” American Law Institute. Model Penal Code (Philadelphia, 1985) 42.

40 The Commission notes that in various laws, provisions are found which oblige an interrogee to respond to an interrogator's questions, so that “the right to remain silent is not to be viewed as an inviolable principle” (R., para. 3.5 end). It would seem, nevertheless, that an explicit legal basis would be required for such a violation.

41 Penal Law, 1977 (L.S.I. Special volume).

42 It should be kept in mind that interrogations are carried out at different levels of suspicion. from a minimal suspicion to a high degree of suspicion, where in the latter case, the purpose is to verify and expand upon information already considered very credible.

43 These are the classic cases which preoccupied Hobbes, Bacon, Kant, Hegal, Fichte. Feuerbach, Grotius, Blackstone and Seiden See Kuper(ii), supra n. 30, Cohen, D., “The Development of the Modern Doctrine of Necessity. A Comparative Critique” in Eser, A., Fletcher, G., Rechtfertigung und Entschuldigung (Frieburg, 1988) vol II. p. 973.Google ScholarBar, L. V., Gesetz und Schuld im Strafrecht (Berlin, 1909) 220Google Scholar, at 232–237. See also American case law on the restriction of freedom of expression at n. 53 infra.

44 Thomas Aquinas, Summa Theologica, Art 6.

45 See, for example, the penal codes of West Germany (sec. 34), East Germany (sec. 18(1)), Italy (sec. 54), Greece (sec. 25), Switzerland (sec. 34), Turkey (sec. 3.49), Ethiopia (sec. 71), Argentina (sec. 3.34), Brazil (sec. 24), South Korea (sec. 22(1)), and the American states listed in sec. 34 of Robinson's book cited in supra n. 30.

This feature of the necessity defence should be read into the Israeli law as well, based on the nature of the concept of “necessity” as is evident from a comparative survey and from the historical sources. Moreover, it is contained in the condition included in sec. 22, of the absence of alternative means.

46 See Feller, vol II, supra n. 24, at 400, 425–428, and the decisions cited there.

47 See, for example, the Norwegian Criminal Code, sec. 47.

48 Williams, supra n. 30. Quoted in the Report at p. 57.

49 “If for example, there is a present hostile demonstration indicating that violence is about to be used, the defender need not wait till his assailant comes within striking distance, or gets his finger on the trigger” Ibid. at 503–504 (emphasis added).

50 See Williams, ibid. The Law Commission. No. 143 Codification of the Criminal Law, (London, 1985) art 46(2)(a), Robinson, supra n. 30, at 57–58. Hirsch, supra n. 30. at para. 36–37; Lenckner. supra n. 30. at 498–499.

I might comment that the second example brought in Robinson's book and cited by the Commission in para 3.12 of the Report is unrealistic How is it possible that while the person in danger is able to act. and there is plenty of time to act, the police and other authorities are “unavailable to intervene” (according to the facts of the example)?. This is a case in which, it appears, immediate intervention of the authorities is justified, since what has been done is punishable (at least it is reasonable that it be so). If this unrealistic aspect ofthe example is overlooked, the individual acts in effect as an agent of the authority, absent the authority's ability to act by itself. Moreover, since there is no guarantee that the perpetrator in Robinson's example will remain where he is with the explosives, there is an immediate need to act in order to prevent the realization of the danger at a later stage.

51 Sec. 22 of the Penal Law, 1977.

52 Thus, for example, considerations of principle which may lead a legal system to the conclusion that the taking of an innocent life can never fall within the limits of necessity, even when the killing act is intended to save, and even does save, the lives of many Similarly, protection of the legal system as a whole may lead to the conclusion that causing damage to property does not come under the aegis of “necessity”, even if done in order to escape punishment which was imposed by law, but unjustifiably, on an innocent person mistakenly convicted.

53 The Penal Code of West Germany, sec. 34, refers explicitly to the degree of danger “des Grades der ihnen drohenden Gefahren” See also case law on the issue ofthe limitation of freedom of expression Schenk v U.S. 249 U.S. (1919) 47, at 52, Whitney v. California 274 U.S (1927) 357, at 375, Thomas v. Collins 323 U.S. (1945) 516, at 530, Bridges v. California 314 U.S. (1941) 252, at 262, Kol Ha'am v. Minister of Interior (1953) 7 P.D. 871, I.S.J. 90; Levi v. Commander of Police (1984) 38(i) P.D. 393, Laor v. Film and Theatre Censorship Board (1987) 41(i) P.D. 421. See also Hubmann, H., Wertung und Abwägung im Recht (Koln, 1977) 37.Google Scholar

54 Hirsch, supra n. 30, at para. 68, 78–81, Lenckner, supra n. 30, at para 41e.

55 Maunz-Durig, supra n. 38, at Art 11, 11.

56 It is a human quality also belonging to those who are incapable of realizing themselves – the insane – and to those who misuse their potential – the criminal Ibid., at 11, 12.

57 Ibid., 11, 12, 13.

58 Ibid., 11, 15. Bonner Kommentar (Heidelberg, 55 Lieferung. 1988) Arts 1. 11

59 Manuz-Durig supra n. 38, at 11, 9.

60 Section 1(1) of the German Grundgesetz of May 23, 1949, Ibid., 11. 19.

61 In Article 1 of the UN. Convention against Torture and Other Cruel. Inhuman or Degrading Treatment or Punishment, “torture” is defined thus “any act by which severe pain or suffering, whether physical or menial, 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” (Emphasis added) The Convention was adopted on Decembers. 1984 and went into effect on June 26 1987. The Report, which does not mention the Convention, was submitted on October 30. 1987. The absolute prohibition on torture is part of customary international law See Amery, J.. Jensens von Schuld und Sahne (Munchen, 1966) 41.Google ScholarMaihofer, W., Rechtsstaat und menschliche Wurde (Frankfurt, 1968) 12.Google ScholarKitz, H.E., Die Notstandshlausel des Art. 15 der Europäischen Menschenrechtskonvention (Berlin, 1982) 64.Google ScholarNowak, M., “Die UNO-Konvention gegen die Folter vom 10 Dezember 1984” (1985) Europäische Grundrechte Zeitschrift 109–110.Google ScholarRiklin, A.. “Internationale Konventionen gegen die Folter” (1978) Europäische Grundrechte Zeitschrift 389.Google ScholarTrechsel, S., “Probleme und aktueller Stand der Bemuhungen um eine UN-Konvention gegen die Folter” (1982) 33 österr. Z. offentl Recht und Volkerrecht 245.Google ScholarTomuschat, Ch., “Rechtlicher Schutz gegen Folter?” in Schulz-Hageleit, P.. Altag-Macht-Folter (Patmos Verlag, Dusseldorf, 1989).Google ScholarLerner, N.. “The U.N. Convention on Torture” (1986) 16 Israel Yearbook on Human Rights 126.Google Scholar

62 Kant, I., Metaphysik der Sitten (Leipzig, 1838)Google Scholar Band 9, at 42.

63 And the right to remain silent is rooted in that facet of human nature which inclines a person to avoid consciously inflicting harm upon himself See Peters, supra n. 13, at 87, Thomasius, , Uber die Folter (Weimar, 1960) 171.Google Scholar

64 Maunz-Durig, supra n. 38 at 11. 15.

65 Ibid., at 11. 17.

66 Hegel, G.W.F., Grundlinien der Philosophie des Rechts (Frankfurt, 1970)Google Scholar Band 7, at para 48.

67 Including depriving the suspect of his intellectual ability See Peters, supra n. 13. at 145. And all this through intentional humiliation ofthe victim meant to make him feel sub-human, and as such, unable to expect humane treatment (Nafsu. for example, was ordersd to undress) His betrayal of others also degrades him in his own eyes and in the eyes of others. See Ruthven, supra n. 13, at 284–285. The breaking of the victim and his “cooperation”, when he joins the side ofthe interrogators and acts in an undignifiec manner, provide legitimacy and moral approval, after the fact, for the process of his breaking and degradation he who acts so now deserved what was done to him before.

68 Of which his will is a central component Hence the European Human Rights Commission in the matter of Greece concluded that it is degrading treatment to compel a person to act against his will or his conscience. See Kitz, supra n. 61, at 62.

69 Isaiah 50:6.

70 Especially when they follow previous psychological pressure and attrition; these means should be viewed in light of what preceded them and of the suspect's condition by the time they are used on him.

71 Konstantinidis, Konstantinos E., “Die Ponalisierung der Folter und deren Einordnung ins Kapitel über der Schutz der Staatsform” in Der strafrechtliche Schutz des Staates (Neuwied, Bemmann/Manoledakis, 1987) 21–22.Google Scholar The German legislature used a definition similar in scope and content regarding the invalidation of confessions. See Stralprozessordnung, sec. 136a, and commentary in Kleinknecht/Meyer, . Strafprozessordnung (Munchen, 37 auflage, 1985) 455.Google Scholar The illegitimate and invalidating means include Misshandlung (mistreatment), defined as “jede erhebliche Beeinträchtigung der körperlichen Unversehrtheit oder der korperlichen Wohlbefindens (Vgl §223 StGB) ZB. Fusstritte, Schlage … (any significant injury to physical integrity or welfare, such as kicks or blows) Ibid., at 457. According to A Eser in the commentary of Schönke and Schroder, supra n. 30, at 1494. a single slap of the “right” force constitutes Misshandlung.

It should be noted that the Code of Conduct for Law Enforcement Officials (No 34/169, adopted by the UN General Assembly on December 17, 1979), in the commentary to sec. 5 which deals with the prohibition of torture and degrading treatment, states that the terms “cruel, inhuman or degrading treatment or punishment” were not defined by the General Assembly, but they “should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental”

72 Examples of the avoidance of use ofthe term “torture” can be found also in the development of the institution of torture in Algeria under French rule. The expression used there included, “l'interrogation” “faire du renseignement”, “procedes classiques de combat, les methodes d'action clandestines et contre-revolutionnaires’ See Vidal-Naquet, P. (i), La Torture dans la Republique (Paris, 1972) 145.Google Scholar at 165–168 Illustrative, in this context, is the statement made by General Massu, one of those responsible for the use of torture in Algeria “La torture est condamnable1 Mais je demande qu'on me dise ou commence la torture” Vidal-Naquet, P. (ii), La Raison d'étal (Paris, 1962)Google Scholar 9 Examples from the U.S. may be found in Mellor, A., La Torture (Paris, 1949) 226.Google Scholar

73 On the distinction between a deliberate blow and one which is not, see Enker, supra n. 30, at 206–207, Lenckner, supra n. 30, at 506, para 39; Schaffstein, F., Die Allgemeinen Lehren vom Verbrechen (Berlin, 1939) 87.Google Scholar

74 The Commission states that over the vears, the use of physical pressure in interrogation was considerably reduced (R., para 2.21. 2.5. 4.7). On the reasonable assumption that the Commission did not permit more than what was acceptable in the Service at the time of the inquiry, we may conclude that the use of physical pressure in the past was more frequent and drastic.

75 And in this context, the Commission's statement to the effect that HTA suspects have no moral claim to civil rights does not make a positive contribution.

76 The Commission's recommendation that CSS interrogations be subject to review by the State Comptroller is positive and important, but such review is not sufficiently effective to prevent the developments described in the text.

77 The difficulty of revealing the truth in this area is great, and the propensity to believe what one wishes to believe and what it is more comfortable to believe is one obstacle Such a self-justifying process of regression was described by Maître Paul Teitgen who was secretary-general of the Algiers Prefecture in 1956–7.

Even a legitimate action…can nevertheless lead to improvisations and excesses Very rapidly, if this is not remedied, efficacity becomes the sole justification. In default of a legal basis, it seeks to justify itself at any price, and. with a certain bad conscience, it demands the privilege of exceptional legitimacy In the name of efficacity, illegality has become justified

In Peters, supra n. 13, at 146–147.

78 On the history of the institution of torture, see sources cited supra n. 13. Mellor supra n. 72; Thomasius, supra n. 63. Schmidt, supra n. 22. Langbein, J. H.Torture and the Law of Proof (Chicago, 1976).Google ScholarHelbing, F., Tortur (Neudruck, 1973).Google ScholarHolzhauer, H.. “Rechtsgeschichte der Folter” in Amnesty International. Folten (Baden-Baden, 1976). 107.Google Scholar On the disparity between norms and reality in this area, see Peters, supra n. 13 at 54.

79 This, as opposed to the use of torture in the past which was usually conditional upon a high degree, often very high, of suspicion. See Peters, ibid. at 50. Thomasius, ibid., at 135.

80 Beccaria already pointed out the advantage a guilty suspect has over an innocent one in the torture method of interrogation Beccaria, C.. In Essay on Crimes and Punishments (Stanford, 1953) 66–67.Google Scholar

81 This omission may be due. in part, to the Commission's position that a clear distinction should be drawn between the questions of what is permitted in interrogation and whether a statement is admissible as evidence (R., para 3.18). In my view, these two questions are closely related I agree that one could hold a view according to which a confession extracted while violating the rules of interrogation is nevertheless admissible (although one thus eliminates one of the means which insure that rules of interrogation will be abided by) However, I cannot understand the opposite situation, where an interrogation is carried out in accordance with the rules, and yet the confession is inadmissible as evidence. Only unreasonable rules of interrogation could explain such a combination, since if the rules are reasonable – that is, they contain sufficient guarantee of the credibility of the statement and respect the dignity ofthe suspect – why should the statement be inadmissible? Permitting certain methods of interrogation entails permitting the admissibility of statements extracted by those methods Therefore, one who permits a certain method of interrogation must put his position to the test of the reasonableness ofthe entailed consequence the admissibility as evidence of the statements extracted.

82 Royal Commission on Criminal Procedure. Police Interrogation: The Psychological Approach (London, HMSO, 1980) 25–26.

83 Ibid., at 42–43.

84 Ulpian described torture as “gebrechliches, gefährliches Ding, das die wahrheit täuscht” (something fragile and dangerous, which distorts the truth). See Holzhauer, supra n. 78, at 120; Peters, supra n. 13, at 34. In fact, in the Middle Ages and later, information provided under torture was not admissible as evidence. This, in addition to the high degree of suspicion which was required in order to torture and the other limitations placed on the use of this means, is indicative of the awareness which existed of its problematic nature as a means to discover the truth. Langbein, supra n. 78, at 4–5, 15–16; Peters, ibid.

85 Beccaria, supra n. 80, at 66.

86 In the past, there was no absolute distinction between torture as a means of interrogation and torture as an ordeal and punishment, based not on complete certainty of guilt but on a considerable degree of certainty, given the high degree of suspicion required as a condition for the use of torture. See Peters, supra n. 13, at 55; Ruthven, supra n. 13, at 282; Langbein, supra n. 78, at 58. In the historical development of the abolition of the institution of torture, an important role was played by the idea of the presumption of innocence and the requirement of certainty above all reasonable doubt as a condition for criminal conviction. See Holzhauer, supra n. 78, at 121–122; Thomasius, supra n. 63, at 187; Vidal-Naquet (i), supra n. 72, at 17.

87 Holzhauer, supra n. 78 at 121.

88 The torturer develops toward the tortured a master-slave relation, and in order to justify what he does to him, he regards the victim as sub-or non-human. See Amnesty International, Bericht uber die Folter (Frankfurt, 1975) 66–70.Google Scholar In addition, there can remain no “taboo” on human dignity or on physical integrity in the eyes of the torturer See Vidal-Naquet (i), supra n. 72, at 143. On the psychological damage to the torturer, see Peters, supra n. 13, at 179, 183–184, Mellor, supra n. 72, at 308–309.

89 See Vidal-Naquet (i), supra n. 72, at 52, Vidal-Naquet (ii), supra n. 72, at 43. The Algerian experience, in addition, demonstrates the transition from torture and killing “with authority”, or at least in the name of the state, to terrorist activity against the state.

90 Mellor, supra n. 72, at 58; Holzhauer, supra n. 78, at 118–119; Peters, supra n. 13, at 32–33, 183. Nevertheless, no use is generally made of torture in the investigation of minor offences – delieta levia. It should be recalled that in the past, certain offences were considered grave which are no longer thought of as such today (theft, for example). A connection can be found between the sanction for an offence – death or other physical sanctions – and the recourse to torture in its investigation. See Peters, supra n. 13, at 79; Langbein, supra n. 78, at 13. The differences between police and GSS investigations described in the Report (para. 2.18) are more of degree and emphasis than of essence.

91 On the privileged status of these principles and the resultant absolute prohibition on violating them, see Hassemer, W., “Unverfügbares in Strafprozess” in Rechtsstaat und Menschenwürde, Festschrift für W. Maihofer (Frankfurt, 1988) 183Google Scholar, at 203.

92 Including impairment of social personality and destruction of self-image. See Amnesty International, supra n. 88, at 60–65; Peters, supra n. 13, at 174; Améry, supra n. 61, at 53, 61, 69–70.

93 On the general phenomenon, see Peters, ibid., at 186. On the connection between torture and racism, see Ruthven, supra n. 13, at 285–286. On developments in Ancient Rome, see Mellor, supra n. 72, at 58; Peters, ibid., at 18–33. On developments during the Middle Ages, see Thomasius, supra n. 63, at 84; Peters, ibid., at 47–50, 60–62; Langbein, supra n. 78, at 13. In Algeria, torture practiced by the French on Muslim inhabitants was later used also on French residents of Algeria and even penetrated into France itself. See Vidal-Naquet (ii), supra n. 72, at 38, 40; Vidal-Naquet (i), supra n. 72, at 31, 36, 89, 170; Peters, ibid., at 132–140.

94 Vidal-Naquet (ii), ibid., at 36–37, 89; Ruthven, ibid., at 212–213.

95 Weizsäcker, C.F.V., “Die Verteidigung der Freiheit” in Zur Verfassung unserer Demokratie (Reinbeck, 1978) 83Google Scholar, at 87, 90–92; Lahav, P., “A Barrel Without Hoops: Counterterrorism on Israel's Legal Culture” (1988) 10 Cardozo L.R. 529Google Scholar, at 556–560.

96 It is also clear, in my view, that since the efforts of the terrorist organizations to harm Israel are part of a national struggle, they cannot be fully frustrated through the use of force. The principle countereffort must include an approach to the roots of the problem and political action in search of a solution. See Vidal-Naquet (ii), supra n. 72, at 96, 105.

97 See Maihofer, supra n. 61; Hassemer, supra n. 91.

98 See n. 19 supra.

99 Maihofer, supra n. 61, at 192; Habermas, J., “Wie ist Legitimität durch Legalität möglich” (1987) 20 Kritische Justiz 1, at 12–13.CrossRefGoogle Scholar

100 See discussion supra, at section IVA(4)(a).

101 See Peters, supra n. 13, at 151–152. This phenomemon is itself an important educational asset which should be maintained and encouraged. Also the fact that GSS investigators and the GSS as an organization did not attempt to find a legal and institutionalized solution to the problem with which they grappled is indicative of one of two things (or both): their awareness that the use of physical pressure is not necessary, or their sense that even ifin some cases it cannot be done without, and is in this sense a necessity, it is a condemnable necessity. In this context, one should also say something in favour of the hypocricy of which the Commission was only critical. After all, there is much truth to La Rochefoucauld's saying that “hypocricy is the homage that vice pays to virtue”. See also, in the same spirit, Graham Greene, as cited by Améry, supra n. 61, at 43–44.

In terms of the negative attitude towards hypocricy and the preference of a direct and bold approach, there is a surprising resemblance between the Landau Report and the report of M.R. Wuillaume on Algeria, which recommended that certain methods of torture be permitted. See Vidal-Naquet (ii), supra n. 72, at 66–68.

102 On the Greek law, see Konstantinidis, supra n. 71, at 21, 24, n. 10. Article 2(2) of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (supra n. 61) states as follows: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency may be invoked as a justification of torture”. See Amnesty International, Torture in the Eighties, supra n. 13, at 30. A similar provision is included in the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (sec. 15). A provision to the same effect is clearly implied also in sec. 4 of the 1966 International Covenant on Civil and Political Rights. See Triffterer, supra n. 22, at 125, 140–50; Kitz, supra n. 61.

103 This is the claim behind George Bernard Shaw's statement that “if you strike a child, take care that you strike it in anger, even at the risk of maiming it for life. A blow in cold blood can nor should be forgiven.”.

104 Here the distinction between an act and an omission is relevant. Active conduct has, as a rule, a greater injurious effect on a protected value than a failure to act. Hence also the rule that if a conflict exists between an obligation to act and an obligation to refrain from acting which are morally equivalent, the obligation to refrain from acting should prevail. See Küper (ii), supra n. 30, at 351–353.

105 This condition finds explicit expression in sec. 34 of the German Penal Code. See also Hirsch, supra n. 30, at 168, para. 76.

106 See Lenckner, supra n. 30, at 510–511; Hirsch, ibid., at 168–169.

107 R., pp. 60–61, quoted supra p. 233.

108 As may be concluded from the disagreement on the Parker Commission (Cmnd. 4901) described in the Landau Commission Report (para. 3.27), and from the differences in approach between the European Commission on Human Rights and the European Court on Human Rights, in the matter of Ireland's complaint against the United Kingdom (Series A No. 25) (R., para. 3.22), as well as differences on the Court itself.

109 Hassemer, supra n. 91, at 184.

110 Ibid., at 184–185.

111 Sec. 34 of the German Penal Code requires, in order that justifying necessity be recognized, that “…die Tat ein angemessenes Mittel ist, die Gefahr abzuwenden”.

112 See especially discussion supra at IVA(4)(a) and (e).

113 In this sense, there is a resemblance between the analysis here justifying an exception to necessity and David Kretzmer's approach regarding the justification for a prohibition on racist expressions as a proper exception to freedom of speech. The resemblance exists also in the basis for the justification: historical experience and reliance on international law. See Kretzmer, D., “Freedom of Speech and Racism” (1987) 8 Cardozo L. R. 445.Google Scholar On the discussion in Germany of the issue of torture, see Triffterer, supra n. 22, at 151. On the law in Greece on this subject, see nn. 71 and 102 supra.

114 It is possible that according to the legal system then in existence, including continental law which was based on formal, demanding rules of proof according to which a conviction could be founded only upon the direct testimony of two eye-witnesses or the confession of the accused, such torture was indeed necessary. See Thomasius, supra n. 63, at 111; Langbein, supra n. 78, at 7, 9; Mellor supra n. 72, at 84–87.

115 See also supra, text at n. 22. For a general formulation of this position, see Compagnoni, F., “Capital Punishment and Torture in the Tradition of the Catholic Church” in The Death Penally and Torture, Böckle, F., Pohier, J., eds. (New York, 1979) 39Google Scholar, at 46; Eichhorn, P., “Rechtfertigungsversuche der Folter – Rechtfertigung des Folterverbots” in Amnesty International, Folter (Baden-Baden, 1976) 61Google Scholar, at 68.

116 And it would not resolve the problem of the revelation of details of the method of interrogation, which would reduce its effectiveness.

117 A basic difference exists between a court, which deals with a concrete case, and a commission of inquiry, which examines the whole picture – in our case, the GSS's investigation methods and procedures – both in terms of the factual tableau which presents itself and the degree of judicial creativity possible. One should also keep in mind the back-ground to the establishment of the Commission, which included a severe crisis in the GSS, and the consequent rehabilitative approach of the Commission.

118 In this sense, the Report is not in keeping with the Supreme Court's statement in the Nafsu affair (n. 2 supra) in which it drew the attention of the Attorney General “to the obligation of adopting the decisive measures necessary to uproot this phenomenon”.

119 Vidal-Naquet (i), supra n. 72, at 31, 65, 69, 70, 112–113, 131–132; Vidal-Naquet (ii), supra n. 72, at 26–29, 166.

120 See supra at IIA.

121 From the Kol Nidre Service.

122 This is why in Britain there is a hesitant attitude toward the very existence of the necessity defence (see Report, para. 3.9), and why those who are alert to the difficulty and danger inherent in the defence adopt a stance of limitation and restraint with regard to it. See, for example, Küper (ii), supra n. 30; Lenckner, , “Der Grundsatz der Güterabwägung als Grundlage der Rechtfertigung” (1985) GA (Golldhammer's Archiv) 295Google Scholar, at 313; Hirsch, supra n. 30, at para 4.

123 “[T]he smaller the deviation from the legal norm, the easier it would be to reach the optimal degree of harmony between the law and the protection of the State's security. But we, as judges who dwell among our people, should not harbour any illusions, as the events of the instant case well illustrate. There simply are cases in which those who are at the helm of the State, and bear responsibility for its survival and security, regard certain deviations from the law for the sake of protecting the security of the State, as an unavoidable necessity”. Barzilai v. Government of Israel (1986) 40 (iii) P.D. 505, at 579; 6 S.J. 1, at 63. And of course, the historic and universal justification for the use of torture has always been “necessity” (see n. 114 supra). See also, for example, Peters, supra n. 13, at 177; Vidal-Naquet (i), supra n. 72, at 35; Vidal-Naquet (ii) supra n. 72, at 64, 66–67.

124 Peters closes his book with the statement that a society which permits torture “leaves no conceptual or practical room for anyone who insists upon neither”. Supra n. 13, at 187.

125 Quote taken from McEwen, S.J., “The Defense of Justification and Its Use by the Frotestor: A Focus on Pennsylvania” (1986) 91 Dickinson L.R. 1Google Scholar, at 53.

126 Quote from Peters, supra n. 13, at 140.

127 See, on this, Vidal-Naquet (ii), supra n. 72, at 96, 105.

128 (1987) 41(iii) P.D. 255, at 287.