The Role of National Courts in Preventing Torture of Suspected Terrorists VI. Conclusion This comment explored two competing approaches to the regulation of interrogations of suspected terrorists, the conceptual approach and the self-defence approach. It suggested that while the first approach better suits international instruments, the second may be employed more effectively by domestic decision-makers. Examining the different opportunities for judicial review of such interrogations, this comment suggested a resolute retrospective review is the least-worse available domestic guarantee against harsh treatment of detainees which does not amount to clear examples of torture. While a general prohibition is called for with respect to particularly brutal methods, methods so harsh that no exceptional circumstances could condone, deferring judgment will be appropriate when lesser methods are used and the moral issue is difficult to resolve without the benefit of hindsight. Security personnel must thus be exposed to the additional burden of criminal or civil liability, or disciplinary measures, should a court later find them responsible for torturing or inhumanely or degradingly treating a detainee. This additional burden decreases the exposure of detainees to harsh measures because it prompts interrogators to internalize the moral dilemma introduced by the ticking bomb paradigm. Judgment, however, should not be postponed for an indefinite period. Strict scrutiny of all circumstances must immediately follow after the emergency situation has subsided. Procedural guarantees must be kept in order to provide effective review. These conclusions only partly support the jurisprudence of the Israeli Court: while the policy of avoiding `real time' determinations is understandable under a real or perceived emergency situation, the Court should expedite its retrospective review, examining each case in an uncompromising manner. Similar scrutiny may also be provided by a court entertaining post factum civil or criminal proceedings against the interrogators. The Court is yet to prove that it is willing to complement its policy of avoiding `real time' judgments with a strong retrospective review of interrogation methods. Although it once sent brutal interrogators to prison, the indefinite deferral of certain petitions concerning the legality of GSS action, and the casualness of the `waiting period' concept, cast doubt on its determination to scrutinize interrogators' practice strictly. Civil suits seeking pecuniary compensation for damage inflicted during GSS interrogations are still pending before lower courts. Hopefully, the Court will fully use these additional avenues for judicial review to provide an effective remedy for unnecessary violations of human dignity in interrogations. In this sense it is necessary to emphasize that the three 1996 decisions discussed in this comment were only interim decisions. The Court still faces the more crucial challenge of a thorough retrospective review.
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