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

Unbound: Harvard Journal of the Legal Left, Vol. 6, p. 59, 2010

52 Pages Posted: 4 Mar 2011  

Itamar Mann

Georgetown University Law Center

Omer Shatz

Yale Law School

Abstract

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.

Keywords: Torture, Human Rights, International Law, Constitutional Law, Judicial Review, Legal History

Suggested Citation

Mann, Itamar and Shatz, Omer, The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987-2009. Unbound: Harvard Journal of the Legal Left, Vol. 6, p. 59, 2010. Available at SSRN: https://ssrn.com/abstract=1775175

Itamar Mann (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Omer Shatz

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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