This paper is the product of a seminar given at the Yale Law School by Kim Scheppele in the Fall semester of 2009. Early versions were presented at the Human Rights Workshop at Yale Law School, and at the University of Toronto faculty of Law, at the Third Annual Conference of the Toronto Group for the Study of International, Transnational and Comparative Law. Thanks to Owen Fiss, Paul Kahn, David Luban, Kim Scheppele, Jim Silk, François Tanguay-Renaud, and the participants of the Yale Law School Human Rights Workshop. Special thanks to Kenneth Mann.
This article traces the history of the regulation of torture in Israel, and shows how it foreshadowed the legal understanding of torture in the United States in the wake of “The War on Terror.” Part I of the article demonstrates how the celebrated Israeli Supreme Court decision in Public Committee v. Israel, traditionally understood as a bold prohibition of torture, should instead be seen as institutionalizing and managing torture.
Since Public Committee, the Israeli executive and the judiciary worked hand in glove to protect this regime, which we label necessity management. Part II of the article revisits the Landau Commission, convened to investigate torture in the Israeli security services, which ultimately legitimated physical interrogation techniques. We argue that the roots of necessity management, which developed after Public Committee, are already spelled out in the Landau Commission report. These rules emerge from the needs of preserving an undemocratic regime of military occupation. Public Committee, in which the Israeli Supreme Court seemingly struck down the Landau Commission’s conclusions, actually cleared the way for implementing these conclusions behind a veil of prosecutorial discretion. Part III articulates some of the theoretical assumptions underlying the regime of necessity management. We argue that this regime, which originated in the undemocratic political context of occupation, foreshadowed protections for torturers under the Bush and the Obama administrations.
Date of Authorship for this Version
Mann, Itamar and Shatz, Omer, "The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987 - 2009" (2010). Student Scholarship Papers. Paper 113.