This issue of the Israel Law Review is devoted to a written academic symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service (GSS) Regarding Hostile Terrorist Activity (the “Landau Report”). The Commission was established in May, 1987 to investigate GSS interrogation practices and to reach legal conclusions concerning them. The need to establish the Commission followed revelations of activity within the GSS which was prima facie unlawful.

The Report discusses a dilemma fundamental to any democratic state forced to cope with hostile terrorist activity (HTA): the dilemma “between the vital need to preserve the very existence of the State and its citizens, and [the need] to maintain its character as a law-abiding State which believes in basic moral principles” (R., 77). The only solution to that dilemma, according to the Report, requires that the “law itself … ensure a proper framework for the activity of the GSS regarding Hostile Terrorist Activity” (R., 79).

The following remarks do not constitute a detailed legal commentary on the 29 September 1988 Award delivered by the Arbitration Tribunal, which was established to resolve the dispute between Egypt and Israel regarding the Sinai frontier, particularly in the region of Taba. These remarks do not relate to the origin of the dispute or address the political context in which the arbitration took place. Nor do they dwell on the innovation of introducing, through the Compromis, a conciliation procedure entrusted to a Chamber of the Tribunal in the very midst of the arbitration proceedings. Still less do they make a detailed analysis of the claims of the two parties or of the Tribunal's opinion on each point in dispute. Leaving aside numerous other interesting aspects of the case, the modest purpose of these observations is to shed light on the originality of the position adopted by the Award in two aspects relating to the judicial function in border conflicts. When one considers the place occupied by this type of conflict in judicial disputes and in international arbitration, the interest which this Award deserves, beyond the specific circumstances which generated it, is obvious.

This was an important award because it concerned the implementation of the Treaty of Peace of March 1979 between Israel and Egypt. Israel's obligation to withdraw “behind the international boundary” could not be implemented to the satisfaction of both parties so long as there existed a disagreement over the location of that boundary.

The Joint Commission established pursuant to Article IV of the Peace Treaty, a body of military personnel, finally identified some 14 boundary pillars the location of which remained disputed. And, since Article VII of the Peace Treaty required reference to conciliation or arbitration of disputes not resolved by negotiations, the dispute over the location of these boundary pillars was referred to arbitration by the Compromis of 11 September 1986.

1.1 On 31 May 1987, The Government of Israel resolved:

“That the matter of the GSS methods of interrogation regarding Hostile Terrorist Activity (HTA) is – in the wake of Criminal Appeal 124/87 (Nafsu) – a subject of vital public importance at this time which requires elucidation.”

Therefore the Government decided:

“To establish a Commission of Inquiry, in accordance with Sec. 1 of the Commissions of Inquiry Law, 1968, regarding the investigation methods and procedures of the GSS on HTA, and the giving of testimony in court in connection with these investigations.

“The Commission will make recommendations and proposals, as it sees fit, also regarding the appropriate methods and procedures concerning these investigations in the future, while taking into account the unique needs of the struggle against Hostile Terrorist Activity.”

Adoption creates a familial relationship of parent and child between people who are not naturally related. In the ancient world, the institution of adoption served as a means of satisfying the need for family continuity, whether for religious-ritual purposes or for practical purposes, to produce an heir capable of inheriting the family property. To this day, several legal systems exist which allow adoption of adults in order to grant an adopter the right to appoint an heir. Such a right is important in those legal systems – which does not include the Israeli system – in which a person's right to make testamentary dispositions is limited. The testator who may not bequeath his property to a stranger as he wishes may overcome this limitation by adopting that stranger and thus making him a relative.

The Taba Case is so called because, although it involved fourteen disputed points on the boundary between Israel and Egypt, the most important area of dispute lay at the delta where the Wadi Taba runs down from the Sinai hills into the waters of the Gulf of Aqaba. Here, on the eastern part of the delta, close to the sea, a substantial hotel was built in 1982 with the consent of Israel. Before that date the delta had been practically empty. Taba was not the name of an inhabited place. It was merely the southern terminus, on the shores of the Gulf of Aqaba, of the border between Israel and Egypt. For a while, there was an Egyptian police post on the west side of the Wadi. In the thirties there was also a rest house occasionally used for recreational purposes by a British official working for the Government of Palestine. Otherwise, until the hotel was built, the place was uninhabited and without economic, strategic or even political importance. Yet the disagreement between Egypt and Israel in this connection between 1979 and 1985 added significantly to the difficulties in the political relationship between the two countries.

It is a conundrum that has long intrigued philosophers, novelists, lawyers, and ordinary citizens: a captured terrorist knows the location of a ticking bomb that threatens hundreds of innocent lives; the only way to prevent the mass murder is to torture the terrorist into disclosing the bomb's location; there is no time for reflection; a decision must be made. Does the noble end of saving innocent lives justify the ignoble means of employing torture?

We know, of course, what all governments would actually do under these conditions of tragic choice: they (or more precisely, some flack-catching underling) would torture (with the implicit approval of the powers-that-be). But could the government justify it? Would they write a law expressly authorizing such means? Or would they choose the “way … of the hypocrites: they declare that they abide by the rule of law, but turn a blind eye to what goes on beneath the surface” (R.,78).

There is evidence, in some recent legal thinking on the employment contract, of a readiness to abandon classical contract principles. This phenomenon is especially apparent in the formulation of the Employment Contract Bill, 1985. In this article, I shall examine this development in the framework of an analysis of the employment relationship and the extent to which it is to be regarded as a contractual relationship, both under differing theoretical approaches and under existing labour law principles.

The contemporary employment relationship emerges from a contractual undertaking between individuals to exchange wages for services, but its social significance is not limited to the issues raised by the terms of the contract.

The process of codifying Israeli private law began in the mid-1960's. Since then, numerous laws have been enacted, each devoted to a certain field or transaction (land law, pledges, sales, etc.). The idea was, and continues to be, that after the enactment of the separate laws is completed, they will be combined in order to create an integral, complete civil code. This stage of enactment is nearly finished, and at present a jurists' committee is considering changes and adjustments required in any of the laws in order to fit them together into one code. This method of legislation by stages has many disadvantages, which have been pointed out in the legal literature. However, there are also advantages. The new laws in the sphere of private law are not inspired by a single legal system or by any particular existing code; rather, they constitute an original, modern Israeli creation, based on comprehensive comparative research and implementation of new, original ideas. In the absence of an established Israeli legal tradition, and absent rooted legal concepts or terminology, the Israeli legislature must create a code which does not grow naturally out of an existing legal system. The code itself will constitute the basis for future development of the system.

1. It is not too late, even now, to welcome the appointment of the statutory commission of inquiry, headed by former President of the Supreme Court Moshe Landau, to examine the methods employed by the General Security Service (GSS) in investigating “hostile terrorist activity” (HTA). The Landau Commission Report treats a broad spectrum of subjects, and the ordinary reader, such as myself, must bear in mind that he encounters only the first part of the Report, while there is also a second, confidential part which doubtless comprises discussions, conclusions and recommendations that cast additional light upon the first part and make for its fuller understanding.

Even Part One of the Report, with its references to Part Two, constitutes in and of itself a major contribution to the effort to crystallize clear legal models of conduct for the special governmental organs involved in the sensitive area of the investigation of HTA cases. Raising the subject on the public agenda, the revelation of the facts involved, and examination of the attendant problems by a commission of such standing constitute an important step toward finding appropriate solutions. Although the Commission's approach is open to dispute on some points, dispute precedes all progress, at least the dispute between the new course and its predecessor.

The principal significance of the Landau Commission Report lies in its conclusion that, under the provisions of the necessity defence, the exertion of a moderate measure of physical pressure is both justifiable and permissible in the interrogation of persons suspected of hostile terrorist activity (HTA). This conclusion extends both forward to the future and backward to the past. For the future, it licenses the employment of physical pressure in such investigations; as to the past, it lends significant support to another of the Commission's conclusions, that no proceedings be instituted against persons who were found by the Commission to bear prima facie responsibility for serious criminal offences (i.e., perjury at the very least). In my opinion, the Commission's central conclusion and its implications are unjustified. It is based upon factual findings and evaluative judgments which are, as I shall attempt to demonstrate, problematic.

Before embarking, however, I should like to sketch a synoptic view of the Report for the reader, which will then enable me to expand upon the connection between the Commission's factual and evaluative findings and its normative conclusions. Regarding the facts, the Commission determined that: 1) GSS interrogators had systematically employed physical pressure on HTA suspects; and 2) interrogators had lied about this fact to the courts. The Commission's normative conclusions were that it is permissible to employ physical pressure in HTA interrogations, but forbidden to lie to the court.