Israel

Constitutional Provisions

Israel does not have a written constitution as such, but its basic laws and rights enjoy quasi-constitutional status. Under Article 2 of the 1992 Basic Law: Human Dignity and Liberty: "There shall be no violation of the life, body or dignity of any person as such." 

Article 8 stipulates that "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required." Article 11 provides that "All governmental authorities are bound to respect the rights under this Basic Law."

Treaty Adherence

Global Treaties

Regional Treaties

There is no regional human rights treaty to which Israel is a party.

National Legislation

Police Use of Force

Israeli police must use only reasonable force in the performance of their duties.Order 18 of Police Ordinance (New Version), 5731-1971.

Use of firearms by the Israeli police is governed by Police Order No. 06.02.14. The Order states that the use of firearms will be "as a last resort, with due caution, and only in circumstances where there is a logical relationship between the degree of danger arising from the use of the weapon and the result which they wish to prevent". The use of firearms to effect an arrest is prohibited unless it pertains to a crime involving serious endangerment to the life or integrity of a person and there is no other way to carry out the arrest.

Before discharging a firearm, the police officer is generally required to give a verbal warning and a warning shot is fired in the air, "while taking the necessary precautions to prevent damage". The duty to warn may be waived when immediate danger to the life or bodily integrity of the policeman or of another person is expected. When using a firearm, it must be discharged "in a manner that will cause, as far as possible, a slight injury to the integrity of the body or property". Firing live ammunition in the air with a view to dispersing rioters is forbidden, unless authorised by the responsible officer.

Police Ordinance Number 221.110.08 of 3 September 2020 on “Procedures for Opening Fire” lays down guidelines pursuant to the Order 06.02.14 on “The Use of Firearms”. It outlines the following operational situations: 

1.    Opening fire during the arrest of a suspect for committing a dangerous crime.
2.    Opening fire to stop a vehicle.
3.    Use of firearms for self-defence.
4.    Opening fire during the arrest of a suspected suicide bomber.
5.    Opening fire at stone throwers, Molotov cocktail throwers and fireworks shooters in a direct line.

The steps to be taken in the process of opening fire are:

a.    To read out a warning in a language the suspect understands, following a uniform wording for Hebrew, English and Arabic.
b.    To fire a warning shot in the air.
c.    Aimed shooting: shooting at the suspect’s legs with a weapon aimed for a single shot, no aiming and shooting at the suspect’s upper body.

The Ordinance specifies that a transition to the next stage should only occur if the previous stage did not have the intended result. If it is clearly identifiable that the suspect is carrying a firearm, the verbal warning may be waived. The shooting must be stopped as soon as the need for it ceases. The Ordinance specifies that shooting should be kept to the minimum required. 

Other Police Ordinances outline the use of certain weapons: tear gas items (Ordinance No. 220.010.16 of 1 June 2021), sponge balls (Ordinance No. 220.010.14 of 1 June 2021), drones that drop tear gas canisters (Ordinance No. 220.010.22 of 1 June 2021), stun grenades (Ordinance No. 220.010.15 of 29 November 2022), ‘Venom’ Multi-Purchaser (Ordinance No. 220.010.17 of 1 June 2021), pepper spray (Ordinance No. 220.028.03 of 1 March 2021), and taser (Ordinance No. 220.003.15 of 15 July 2020). 

Rules of Engagement in the Gaza Strip

These rules of engagement are classified secret, though they were discussed by the Supreme Court of Israel in Yesh Din v. Israeli Defence Force (see below Caselaw, National).

Use of Force in Custodial Settings

The 1997 Criminal Procedure Regulations (Powers of Enforcement – Arrests) (Conditions in Detention) governs use of force in custodial settings. Under Section 18(B) of the Regulations:

If a policeman or prison guard at the place of detention has a reasonable basis to fear that a detainee is about to flee or that he is about to inflict damage to a body or property or to otherwise harm the operation of the place of detention, he is authorised to exercise reasonable force against the detainee in order to prevent the flight or infliction of damage or harm as stated, provided that all of the following also applies:

(1)  It is impossible to achieve the objective without use of force;

(2) The use of force is only to the reasonable extent necessary for achieving the aforementioned objective and does not continue after it is achieved;

(3) The use of force does not entail endangering human life.

Provisions regarding the use of fetters for detainees is governed by Police Ordinance Number 12.03.04 of 3 November 2022. Section 3a on the means and methods of binding ranks police handcuffs made of metal or plastic as the preferred binding method; improvised handcuffs that are not intended to injure the detainee or cause him another form of physical harm are the secondary option. Section 3c on handcuffing principles notes:

 A police officer who is arresting someone with improvised handcuffs will replace the improvised handcuffs with police handcuffs as soon as possible.
As a general rule, a police officer will not handcuff a detainee to a hard object, unless special circumstances exist and approval was obtained from a qualified officer, as detailed in the relevant procedures.

Section 4b deals with restrictions and principles for the use of leg cuffs:

A police officer who has the authority to handcuff a detainee with handcuffs or leg cuffs, will shackle the detainee with handcuffs if such a form of shackling is sufficient to achieve the purpose for which the shackle is required. If the policeman does not believe the handcuffing to be enough to achieve the purpose for which the handcuffing is required, he will also shackle the detainee using leg cuffs.

Section 4c on binding methods notes that, depending on circumstances and necessity, a police officer will shackle the leg of a detainee to the leg of another detainee. Section 5b on handcuffing a minor in a public place states that:

A police officer will not handcuff an arrested minor in a public place if the purpose of the handcuffing can be achieved in a way that injures the minor less.
In the decision to shackle an arrested minor, the police officer deciding on the shackle will take into account the age of the minor and the effect of shackles on his physical and mental well-being. 

Police Oversight

The Department for Investigation of Police Officers in the Ministry of Justice or Machash has the function to examine the alleged commission of criminal offences by police personnel when the penalty is in excess of one year's imprisonment. Upon receipt of a complaint and after its initial examination by an Attorney, a decision is made on whether to open an investigation. If the Department decides a basis exists for the filing of an indictment against the Policeman, the case comes under the jurisdiction of the Magistrates Courts in the Jerusalem, Tel Aviv, Central and Southern Districts. The Machash is an independent body, external to the Police.

Amendment No. 37 of 2022 to the Police Ordinance formally places the security minister in charge of the Israeli police, stipulating as follows:

1. (a) The Israeli Police is at the mercy of the government.
(b) The Minister is in charge of the Israeli Police on behalf of the Prime Minister.
... The minister will outline the police policy and the general principles for its activity, including priorities, work plans, general instructions, the general instructions ... and the exercise of all its powers with regards to the police budget, in accordance with the Budget Fundamentals Law, 2015 9852, and its provisions. Police activities and their level of preparedness will be supervised and controlled.

The disciplinary court (Bidam) is tasked with proceedings regarding police officers who have been accused of disciplinary offences.

Caselaw

Global

Views and Concluding Observations of United Nations Treaty Bodies

In 2017, in its Concluding Observations on Israel the Committee on the Elimination of Discrimination against Women expressed its concern that “Palestinian women and girls continue to be subjected to excessive use of force and abuse by the State party’s security forces”. It also called on Israel to:

Ensure that the use of force against women and girls in response to acts of violence and protest demonstrations and in law enforcement operations in the context of counter-terrorism measures is proportionate and in compliance with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

The Committee also expressed concern that “Israeli security forces continue to use disproportionate force in response to acts of violence and protest demonstrations and in law enforcement operations in the context of counter-terrorism measures, with a disproportionate impact on women and girls”.

In 2019, in its report of the Independent International Commission of Inquiry on the Protests in the Occupied Palestinian Territory, it was stated that:

The shooting by Israeli security forces of Palestinian demonstrators with high-velocity weaponry at close range resulted in killings and long-term, life-changing injuries, including paralysis and amputations. Although this was well known as early as April 2018, Israeli forces continued this practice throughout the period under review. Using such weaponry at short range, and justifying it by the need for accuracy at long range, indicates a disproportionate use of force.

The report further stated that: "International human rights law protects demonstrations under the freedoms of expression, of peaceful assembly and of association. While not all demonstrators were peaceful, the commission found reasonable grounds to believe that the excessive use of force by Israeli security forces violated the rights of the thousands who were."

In 2022, in its Concluding Observations on Israel the Human Rights Committee expressed concern at “continuing and consistent reports of the excessive use of lethal force by the Israeli security forces against Palestinian civilians, including children, and the lack of accountability for these acts”. It expressed particular concern “about excessive force used in policing demonstrations” and concern that “no perpetrator has been brought to justice for excessive force used against 260 Palestinians, including children, during the escalation of hostilities in Gaza in May 2021”. The Committee called on Israel to:

(a) Ensure that rules and regulations governing the engagement of, or opening of fire by, the Israeli security forces in the West Bank, including East Jerusalem, and the Gaza Strip, and their practice, are consistent with the Committee’s general comments Nos. 36 (2018) on the right to life and 37 (2020) on the right to peaceful assembly, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement; 

(b) Ensure that prompt, thorough, effective, independent and impartial investigations are launched into all incidents involving the excessive use of force by the Israeli security forces, that perpetrators are prosecuted and, if found guilty, punished, and that victims are provided with effective remedies; 

(c) Provide regular training to all members of the Israeli security forces on the use of force, the employment of non-violent means and crowd control, and ensure that the principles of necessity and proportionality are strictly adhered to in practice.

Regarding settler violence in the West Bank, including East Jerusalem, the Committee noted with concern “the involvement of the Israeli security forces in such violence” and “a very low rate of indictments and convictions of perpetrators, fostering a general climate of impunity”. The Committee called on Israel to “intensify efforts to prevent and combat violence perpetrated against Palestinians by the Israeli settlers in the West Bank, including East Jerusalem, as well as by Israeli security forces alongside these settlers”. Furthermore, Israel should “ensure that all allegations of settler violence are thoroughly and impartially investigated, that perpetrators are prosecuted and, if found guilty, punished”.

The Committee also noted that, regarding restrictions on the freedom of movement by the State in the Occupied Palestinian Territory: “in enforcing movement and access restrictions, the Israeli security forces often use lethal force, such as live ammunition, leading to death and serious injuries”. The Committee urged that “all members of the Israeli security forces found responsible for excessive use of force are held accountable and appropriately sanctioned”.

Regarding the prohibition of torture, the Committee expressed concern that no law on the prohibition of torture has yet been adopted. It also expressed concern that Israel “continues to recognize the defence of 'necessity' as a legal justification for torture”. The Committee also referred to “reports of widespread and systematic practice of torture and ill-treatment by Israel Prison Service guards and the Israeli security forces against Palestinians, including children, at the time of arrest and in detention”, noting the use of “physical and psychological violence, sleep deprivation, stress positions and prolonged solitary confinement” as methods, “including against children and detainees with intellectual or psychosocial disabilities”. The Committee called on Israel to:

place an absolute ban on torture, including by incorporating into its legislation, such as the draft basic law on the rights of suspects and defendants, a definition of torture that is fully in line with article 7 of the Covenant, and removing the notion of “necessity” as a possible justification for the crime of torture.

And, regarding the torture against Palestinians specifically, to:

take all necessary measures to end the practice of torture and ill-treatment against Palestinian detainees, particularly children, in line with the Covenant and international standards, as reflected in the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). In particular, it should consider abolishing the use of solitary confinement against children and developing alternative measures where necessary. It should ensure that all allegations of torture and ill- treatment are promptly, impartially, thoroughly and effectively investigated, that perpetrators are prosecuted and, if found guilty, are punished with sanctions commensurate with the severity of the crime, and that victims are provided with full reparation, including rehabilitation and adequate compensation.

Regional

There is no regional human rights court with jurisdiction over police use of force in Israel.

National

Public Committee Against Torture v. Israel (1999)

The petitioners challenged the legality of methods employed by the General Security Service in its investigations, which include the use of moderate physical pressure. The directives which form the basis of authority for these methods note that the use of moderate physical pressure is allowed if this pressure is imminently necessary for saving human life. The Supreme Court, sitting as a High Court of Justice, decided that the General Security Service was not authorised to employ some of the methods challenged by the petitioners. Regarding the “necessity defence” (see also Tbeish v. Attorney General below), the Court decided that it could be applied ex ante to allow General Security Service investigators to employ certain interrogation practices but did not rule out the possibility of a post factum application. A post factum application could be made either by the Attorney-General or the court. The court denied the petitioners’ petition.

Abu Gosh v. Attorney General (2017)

The petitioner, who was arrested in 2007 on the suspicion of serving as a Hamas military expert in Nablus, requested to immediately open a criminal investigation against the investigators of the General Security Service on the suspicion of use of torture and abuse during the interrogation. The petitioner also asked for an order for prosecuting the investigators. So called “pressure measures” were applied during investigations in order to obtain information on Hamas activity and with the objective to avert an immediate danger to human life. The petitioner argued that the means of investigation used against him amount to torture, and that therefore the necessity defence cannot be applied to the investigators. The Court concluded:

I did not find that the petitioners’ claims, both regarding the issue of torture and regarding the applicability of the necessity clause, have any clear reason to interfere with the respondent’s decision, according to which there is no reason to open a criminal investigation following the petitioner’s investigation by the Shin Bet (General Security Services). Under the present circumstances, I am not convinced that the respondent’s decision is unreasonable, let alone extremely unreasonable, and that it would therefore justify our intervention. Furthermore, the second remedy that was requested by the petitioner regarding the prosecution of the investigators should also be rejected.

Tbeish v. Attorney General (2018)

The petitioner, suspected of terrorist activity in Hamas’ military wing, claimed that he was tortured during his interrogation by the Israeli Security Agency (ISA). The ISA interrogators believed that the petitioner possessed information about a planned Hamas attack and employed “special means of interrogation”. The petitioner requested first, that the court instruct the Attorney General to reconsider the decision to not open a criminal investigation of the interrogators; and, second, the petitioner sought the annulment of the Attorney General’s guidelines titled "ISA Interrogations and the Necessity Defense – Framework for the Attorney General’s Discretion," which form the basis for the ISA’s internal guidelines, arguing that these guidelines unlawfully allow interrogators to seek advice from higher-ranking officials regarding the use of “special means” during interrogations. The Supreme Court (sitting as High Court) concluded:

I have not found reason to intervene in the decision of the Attorney General to approve the decision of the Director not to initiate a criminal investigation of the Petitioner’s interrogators and to close the examination file on his complaint. As opposed to the Petitioners’ claim, I am of the opinion that the said decision – according to which the Petitioner was not tortured in the course of his interrogation, and according to which the Petitioner’s interrogators  are entitled to the “necessity defense” that exempts them from criminal responsibility for employing “special means of interrogation” in his interrogation – does not deviate from the margin of reasonableness. Accordingly, we should deny the relief requested by the Petitioners to void the Directives of the Attorney General and the Internal Guidelines of the ISA, as they are not contrary to law.

I therefore recommend to my colleagues that we deny the petition in regard to both requested remedies.

Yesh Din and others v. Israel Defense Forces Chief of Staff (2018)

In its judgment, the Supreme Court (sitting as a High Court) accepted that the Rules of Engagement of the security forces in Gaza Strip are classified secret. It added that the Rules of Engagement

allow the use of live ammunition only in order to deal with violent riots, from which an actual, imminent and close danger is posed to IDF troops or Israeli civilians. In accordance with these Rules, the danger shall first and foremost be dealt with by verbal warnings and nonlethal means. If the use of these means does not remove the actual and imminent danger that is posed from the violent riot – and only in such case – do the rules permit, according to what we have been told, precise shooting towards the legs of a central rioter or central inciter, in order to eliminate the close and foreseeable danger. 

The Court stated that “firing towards the legs of a central rioter or central inciter is meant to occur only as a last resort, and subject to strict requirements that derive from the principles of necessity and proportionality.”

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