The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987 - 2009

Itamar Mann-Kanowitz, Yale Law School
Omer Shatz


Ten years after Jutice Aharon Barak's celebrated decision in Public Committee Against Torture v. State of Israel, this article revisits the decision. From the contemporary historical perspective, it tries to answer three questions: (1) how was the decision instrumental in applying state policies that did not abolish torture, even though that is exactly what the decision famously stands for?; (2) what can the decision, and the more general context of the history of torture in Israel, teach us about the nature of the continued military control in the West Bank and Gaza?; (3) what can looking back at that context teach us on the way torture has since been deployed in the "war on terror" at large?

Building on our answers to all three questions, we show that contrary to the way Public Committee was received internationally, it was not instrumental in stopping torture. Rather, the legal regime it gave birth to is one in which torture is perhaps reduced, but at the same time the victims of torture are more thoroughly silenced, and nearly never have an available legal remedy. We compare this legal regime with the previous recommendations of the Landau Commission (1987), which proposed to recognize "moderate physical pressure" as legal. We therefore label the movement from the Landau Commission Report to Public Committee, a movement from legitimation of torture, to un-prosecution.

Moving to the US context, we argue that what might be happening before us right now is a similar dynamic. Whereas under the Bush administration efforts were made to legitimize torture, Obama has moved to un-prosecution. This new strategy is however morally problematic, as victims are unaccounted for and unrecognized.

The argument is based on information that is inaccessible to an English language readership, and it seriously questions part of the most accepted notions on torture in international law scholarship.