II. The Hamdan Case(1)
A. Translated Text of the HCJ Decision
At the Supreme Court sitting as High Court of Justice
HCJ 804/96
President A. Bank
Justice M. Heshin
Justice E. Matza
Appellant: Muhmmad'Abd al-'Aziz HamdanRepresented by Adv. Rosenthal
of Jaffa St. 33 Jerusalem
V.
Respondent: The General Security Service
Represented by the Attorney-General's Office Ministry of Justice, Jerusalem
Decision
President A. Barak:
1 . The Appellant is under administrative detention. He is interrogated by the Respondent. He presented (on 12.11-96) an appeal to this Court. In it he complained about the use of physical force against him during interrogation. He requested that the Respondent come and give reason why it does not stop using these means of interrogation. An interim injunction was also requested to prohibit the use of physical force pending a decision on the appeal. The appeal was scheduled for an urgent hearing (for 14.11,96). A notification to that effect was given to the Attorney General's office (on 13.11.96). Counsel for the Respondent (I&. Shai Nitzin) requested the postponement of the hearing. He noted that in view of the short period remaining, before the heating, he had not been able to conduct the inquiries necessary for responding to the appeal. It was nevertheless remarked that 'from the inquiries conducted by telephone it has emerged that the Respondent has no intention of using physical force against the Appellant at this stage of the interrogation. Therefore, and without admitting the accuracy of the facts included in the appeal, the Respondent informs the Court that it agrees to the issuance of an interim injunction, which prohibits the use or physical force against the Appellant, pending a hearing of the appeal." On the basis of this statement an interim injunction was issued, as requested in the appeal (on 13-11-96)
2. Today (14.11.96) a request was presented to us on behalf of the Respondent for an urgent hearing of a request to annul the interim injunction. Explaining this position, A&. Nitzan remarked that "in the mean time the necessary inquiries have been conducted, and the Respondent has come to possess very recent information regarding the issue under discussion following which the Respondent has decided to request that the interim injunction which was issued regarding the Appellant be immediately annulled."
3. In the request presented to us it was stated that the Appellant had been arrested as early as 1992 for interrogation, during which he confessed to belonging to and being active in the Islamic Jihad cells. Upon completion of the interrogation he was deported to Lebanon as part of the deportation of activists of his organization and the Hamas Organization. When he returned he was sentenced to three additional months of imprisonment which he finished serving in February 1994. In July 1995, he was detained for a month-long administrative detention. In March of 1996 he was detained by the Palestinian Authority during arrests of activists from extremist terrorist organizations. The Appellant was free for some two months before being detained (on 24.10.96) in administrative detention. This detention was effected In view of information associating him with activity within the Islamic Jihad organization.
4. The Respondent goes on to note in the request presented to us, that a few days prior to the Appellant's arrest the Respondent received information from which emerged a well founded suspicion that the Appellant possesses extremely vital information the immediate procurement of which would help save human lives and prevent serious terrorist attacks in Israel which there is real concern are to be carried out in the near future. The Appellant was therefore transferred to the, detention centre in Jerusalem, and his interrogation began. In the course of the interrogation further data accumulated, which strengthened the information and the concerns which the Respondent alludes to above. The Respondent noted in it's request, that such information was actually received during the last few days, including last night. The Respondent has reached the conclusion that a vital and urgent need exists to continue immediately the interrogation of the Appellant, without the needs of interrogation being subjected to the restrictions imposed by the interim injunction. The removal of then restrictions is necessary, in the opinion of the Respondent, so that the information which Appellant possesses can be exposed immediately and the danger to human lives prevented. The Respondent noted further that, in it's opinion, the application of such force, in the present situation is permitted by law, which allows the application of physical force as well, in a situation where the conditions for the defense of necessity provided for In article 34(l 1) of the Penal Code (1977) exist.
5. During the evening we discussed the request. We heard the arguments of Mr. Nitzan. He stated before us that the physical means which the Respondent intends to use do not constitute "torture" (within the meaning of this term under the Convention Against Torture). Mr. Nitzan further noted that all these means fall under the defense of necessity (stipulated in article 34(l 1) of the Penal Code), the conditions for which exist in his opinion in the present circumstances. In contrast, Mr. Rosenthal noted that this defense is not available to the interrogators of the Respondent [sic]. With Mr. Rosenthal's consent, we heard the interrogators of the Respondent [sic]. They described to us both the intelligence picture generally and that relevant in particular to the Appellant.
6. After having studied the classified material presented to us, we are satisfied that the Respondent indeed possesses information which could substantiate a substantiated suspision(2) that the Appellant possesses extremely vital information, the immediate, procurement of which would prevent an awful disaster, would save human fives, and would prevent very serious terrorist attacks. Under these circumstances we believe that there is no jusstification for the continued existence of the interim injunction ('Abd al-Halim Bilbeisi v. General Security Service HCJ-VR 336196). Needless to add, the annulment of the interim injunction does not constitute permission to take during the interrogation of the Appellant measures which are not in accordance with the law, and which are in breach of the, law, On this point, -no information has been provided to us regarding the ways of interrogation which the Respondent intends to pursue, and we do not express any opinion regarding them. Furthermore: Our decision is directed solely at the interim injunction and does not constitute, a final position regarding the questions of principle which were put before us, and which relate to the applicability of the defense of necessity and its scope,.
Therefore, we have decided to annul the interim injunction issued on 14.11.96.
Justice E. Matza: I agree.
Justice M. Heshin: I agree.
Decided in accordance with the ruling of President Barak.
Given today, 14.11.96
1. 26 Muhammad Abd al-Aziz Hamdan v. the General Security Servicel FICI 8049196, Decision of 14.11.96.
2. In Hebrew: Ievases hashad mevusas