Thursday, 10 November 2011

Justice Barak in the Supreme Court of Israel

Justice Aharon Barak, the President of the Supreme Court of Israel from 1995 to 2006, delivered a notable judgment, from which the following extracts are taken, in the 1999 case of Public Committee against Torture in Israel v Israel.  The case concerned coercive methods of interrogation used by the Israeli security services.

This decision opens with a description of the difficult reality in which Israel finds herself security wise. We shall conclude this judgment by re-addressing that harsh reality. We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. This having been said, there are those who argue that Israel’s security problems are too numerous, thereby requiring the authorization to use physical means. If it will nonetheless be decided that it is appropriate for Israel, in light of its security difficulties to sanction physical means in interrogations (and the scope of these means which deviate from the ordinary investigation rules), this is an issue that must be decided by the legislative branch which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed. The pointed debate must occur there. It is there that the required legislation may be passed, provided, of course, that a law infringing upon a suspect’s liberty "befitting the values of the State of Israel," is enacted for a proper purpose, and to an extent no greater than is required. (Article 8 to the Basic Law: Human Dignity and Liberty).

Deciding these applications weighed heavy on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. Its problems are known to us and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. Our apprehension is that this decision will hamper the ability to properly deal with terrorists and terrorism, disturbs us. We are, however, judges. Our bretheren require us to act according to the law. This is equally the standard that we set for ourselves. When we sit to judge, we are being judged. Therefore, we must act according to our purest conscience when we decide the law....

The Commission of Inquiry pointed to the "difficult dilemma between the imperative need to safeguard the State of Israel’s very existence and the lives of its citizens, and preserving its character- that of a country subject to the Rule of Law and holding basic moral values".... The Commission rejected an approach suggesting that the actions of security services in the context of fighting terrorism, shall take place in the recesses of the law. The Commission equally rejected the "ways of the hypocrites, who remind us of their adherence to the Rule of Law, while ignoring (being willfully blind) to what is being done in practice".... The Commission elected to follow a third route, "the way of Truth and the Rule of Law".... In so doing, the Commission of Inquiry outlined the dilemma faced by Israel in a manner both transparent and open to inspection by Israeli society.