Moshe Landau

Moshe Landau was born in Danzig on April 29, 1912.[7] He studied law at the University of London, graduating cum laude, and immigrated to British Mandate Palestine in 1933.[7] His legal education in London thus preceded the professional career he subsequently developed in Palestine and, after its establishment, the State of Israel.[7][8]

Landau practiced law privately before entering the judiciary in 1940.[8] He was admitted to the Palestine Bar in 1937 and appointed a judge in the Haifa Magistrates Court three years later.[1][9] He remained a magistrate through 1948, when he was promoted to the District Court following Israel’s establishment.[8] His early judicial service therefore spanned the final years of the British Mandate and the beginning of Israeli statehood.[8]

In 1953, Landau was appointed to the Supreme Court and moved to Jerusalem.[8] The appointment followed service at both magistrates’ and district-court level, giving him experience in the lower courts before the national judicial responsibilities with which his later career became associated.[8] He continued serving on the Supreme Court until his retirement in 1982.[1]

Landau’s Supreme Court career extended from his appointment in 1953 to his retirement in 1982, including two years as the Court’s fifth president.[1][8] He became deputy president in 1976 and president in 1980, leaving office when he reached retirement age in 1982.[8] Alongside his judicial work, he undertook responsibilities in state inquiries, Zionist institutions, legal reform, and the recognition of people who had rescued Jews during the Holocaust.[7][5]

In 1957, Landau ruled on the meaning of lawful orders in a court-martial appeal involving soldiers who had killed 30 Arabs in Kafr Qasim.[7] Another important decision came in 1962, when he overturned a censor’s decision in a ruling that established a precedent for freedom of information and the public’s right to know.[7] These cases placed questions of official authority, legal obligation, and access to information within his judicial work before he assumed the Court’s presidency.[7]

Landau presided over the three-judge panel that tried Adolf Eichmann in Jerusalem in 1961.[2] The trial opened on April 11 at Beit Ha’am, with Landau sitting alongside Jerusalem District Court president Benjamin Halevi and Tel Aviv District Court president Yitzhak Raveh.[10] The combination of a Supreme Court justice and district-court judges was unusual, because judges from the two levels ordinarily did not sit together.[2] Its composition followed the Benjamin Halevi Law, which required a Supreme Court justice to chair a panel when a defendant might receive the death penalty.[2]

The proceedings raised difficult questions about applying Israeli law to acts committed outside Israel and before the state existed.[10] The case’s preparation, trial, and judgment unfolded in successive stages: capture and preparations from May 1960 to April 1961, the trial from April to August 1961, and conviction, sentencing, and appeal from December 1961 to May 1962.[2] Landau’s role was therefore situated within proceedings that extended well beyond the courtroom hearings themselves.[2]

The trial lasted 14 weeks and heard more than 100 witnesses.[11] The panel delivered the first of its 15 guilty verdicts on December 11, 1961, and sentenced Eichmann to death on December 15.[11] Throughout the hearings, Landau insisted that testimony remain relevant to the legal case rather than allowing the courtroom’s historical importance to displace the judges’ evidentiary task.[2]

One illustration was his response to Abba Kovner’s testimony.[2] Landau became angered because, in his assessment, Kovner was speaking about himself and the ghetto rather than the case, and he interrupted the testimony before it was completed.[2] Holocaust survivors’ testimony was important to public understanding, but the judges’ ruling concentrated on evidence relevant to the proceedings.[2] Hannah Arendt praised the judges, particularly Landau, for resisting the temptation to bring politics into the courtroom.[10]

Landau also addressed the relationship between Jewish identity, nationality, and statutory interpretation in the Brother Daniel case.[12] He concurred with Justice Moshe Silberg’s reasoning while adding personal observations, rejecting the petition under the secular Law of Return rather than deciding it according to religious law.[12] His analysis focused on the legislature’s intended meaning of the word “Jew,” making statutory purpose central to the question before the Court.[12]

In that analysis, Landau treated the founders’ Zionist ideas and the Declaration of the Establishment of the State of Israel as relevant to the Law of Return’s meaning.[12] He reasoned that conversion to another religion severed a person’s connection to the Jewish national community for the purposes of the statute.[12] He consequently joined Silberg in rejecting the petition, taking a position contrary to that of Justice Haim Cohn.[12] His reasoning distinguished the legal meaning of membership in the Jewish national community under this law from a determination made solely through religious law.[12]

Questions about democracy’s capacity to protect itself also appeared in Landau’s public responsibilities.[7] As chairman of the Israel Central Elections Committee in 1965, he disqualified the Socialist List, whose platform advocated the destruction of the State of Israel.[7] His reasoning was that democratic procedures could not properly be used to undermine a democratic regime.[7] In HCJ 1/65, he expressed the principle that “democracy has a right to defend itself even if it must use tools that the law does not explicitly provide it with.”[13]

His discussion of Jewish legal heritage drew another distinction, this time between filling a genuine gap in the law and interpreting an uncertain legal term.[14] In relation to the Foundations of Law Act, Landau held that a court facing a legal gap must turn to principles of the Jewish heritage.[14] He nevertheless maintained that Jewish law should enrich legal thought rather than serve as the primary source courts were required to consult whenever a legal term’s meaning was uncertain.[14] His position therefore assigned Jewish heritage a specific role without making it the mandatory starting point for every question of interpretation.[14]

Beyond the courts, Landau chaired the commission responsible for recognizing the Righteous Among the Nations, with his chairmanship listed for 1962–1970.[5] The commission was created to make the recognition process fair and orderly and to ensure that the distinction went only to deserving recipients.[5] It began formulating guidelines and criteria at a preliminary meeting on February 1, 1963, and held its first meeting at the President of Israel’s residence on February 19.[5] Landau’s work in this setting concerned the development of an organized process for honoring those whose actions merited recognition.[5]

He also held a judicial office within the Zionist movement.[15][6] Proceedings of the Zionist General Council’s January 1967 session listed him among its legal officers as chairman of the Congress Tribunal in Jerusalem.[15] At the 27th Zionist Congress, held in Jerusalem in June 1968, he was elected chairman of the tribunal under Article 54 of the Congress constitution.[6] The proceedings also recorded him reporting on the composition of the Congress, documenting a role that extended beyond the mere listing of his title.[6]

After the Yom Kippur War, Landau served on the Agranat Commission, chaired by Supreme Court Chief Justice Shimon Agranat.[4] The government decision establishing the inquiry was made on November 18, 1973.[4] Its other members were State Comptroller Yitzhak Nebenzahl and former chiefs of staff Yigael Yadin and Haim Laskov.[4] Its remit included the intelligence available about Syrian and Egyptian intentions, the analysis of that intelligence by civilian and military bodies, and the Israel Defense Forces’ preparedness, particularly on October 5, the day before the war began.[4]

The inquiry also examined assessments and decisions preceding the war and the IDF’s operations through the containment of the enemy.[16] It held 140 sessions and heard 58 witnesses.[16] The final report, presented on January 30, 1975, exceeded 1,500 pages, although only its introduction was made public at the time.[4] The commission’s working materials were transferred to the IDF and Defense Establishment Archive.[4] Landau’s participation thus involved a sustained investigation of intelligence, readiness, and military decision-making rather than a narrowly defined review of a single incident.[4][16]

On October 22, 1979, Landau led a five-judge Supreme Court panel that ordered the dismantling of the Elon Moreh settlement.[17] The Court found insufficient evidence that its establishment had been justified by security needs.[17] The Arab residents of Rujeib had brought the appeal, and the military government was ordered to pay their appeal costs.[17] The settlers were given 30 days to evacuate.[17]

The case included conflicting assessments of the settlement’s purpose.[17] IDF Chief of Staff Rafael Eitan testified in support of a security rationale, while Defense Minister Ezer Weizman and other military experts maintained that political considerations had determined the location.[17] Landau accepted the latter assessment.[17] He ruled that the land had been requisitioned by a belligerent occupier contrary to international law, and the decision became one of the major rulings associated with his Supreme Court career.[7]

The ruling also illustrated Landau’s insistence on separating judicial duty from personal political preference.[1] Although the result conflicted with his own political outlook, he explained his obligation in direct terms: “It is my duty to rule according to the law.”[1] The case therefore placed his understanding of the judicial role into practical effect in a politically sensitive dispute over the use of land.[1]

Five years after retiring, Landau returned to a major state inquiry as chairman of the commission examining the General Security Service, also known as the GSS or Shin Bet.[7][3] The commission followed the Supreme Court’s condemnation of the Nafsu case and political pressure from coalition parties.[3] The Izzat Nafsu affair concerned a Circassian IDF officer wrongly accused of espionage, against the wider background of the Kav 300 affair.[18] On June 2, 1987, the Supreme Court president appointed retired Justice Landau to chair the inquiry.[3]

The commission investigated methods and procedures used in inquiries into hostile terrorist activity, including the service’s practices when giving evidence in court.[3] Its assignment also included recommendations for future investigative methods that would account for the needs of the struggle against terrorism.[3] It examined testimony from 42 witnesses, including prime ministers, service heads, and GSS personnel, together with considerable written material.[3] Landau submitted its report on October 30, 1987.[18]

The inquiry found that the service had systematically violated the law by permitting, approving, and even encouraging false testimony in court.[3] It rejected the proposition that the importance of security work could place those performing it above the law.[3] Its formulation was explicit: security work could justify “means, but not all means, and certainly not the means of giving false testimony.”[3] A contemporary diplomatic account of the report described perjury as a policy followed since 1971 to conceal interrogation practices and the obtaining of confessions.[19]

The commission framed its task as preserving both the safety of the state and its citizens and Israel’s character as a law-abiding state committed to moral principles.[3] It rejected exempting counterterrorism work from the rule of law, but also rejected ignoring practices that took place outside public view.[3] Its report described interrogation methods as “a faithful mirror of the character of the entire regime” and argued that those methods required legal regulation.[3] Its findings brought previously concealed security-service interrogation practices to public attention.[20]

The report preferred nonviolent psychological pressure, including vigorous questioning and stratagems, while permitting a moderate measure of physical pressure under stringent conditions if those methods failed.[3] Detailed directives appeared in a secret second part of the report, with supervision by bodies both within and outside the service.[3] The government approved the recommendations.[3] The report also called for highly qualified and trustworthy legal counsel, specifying that the service’s legal adviser should be “a jurist of stature.”[18]

The legal approach associated with the report relied on criminal-law necessity as the proposed basis for otherwise impermissible conduct.[20] Its undisclosed addendum specified actions and their duration and intensity, and the commission considered interrogators protected from criminal charges when acting within the established regulations.[20] Intelligence services and senior Justice Ministry officials followed this approach from 1987 to 1999, a period of twelve years.[20] The commission also recommended against criminal action for conduct preceding its report.[19]

Landau’s other public responsibilities included chairing advisory commissions on land-law reform, criminal procedure, and administrative tribunals.[7] He held board roles connected with the Technion and the Israel Philharmonic Orchestra and served as honorary chairman of the Technion’s Board of Governors.[7][8] These activities accompanied his judicial and inquiry work, extending his institutional service into legal administration, higher education, and cultural life.[7][8]

Landau received the Israel Prize in law in 1991.[8] His career encompassed service in the courts before and after Israeli independence, almost three decades on the Supreme Court, and a presidency that concluded with his retirement in 1982.[1][8] The Eichmann trial, his major public-law rulings, and his work on national commissions remained prominent elements of the public assessment of his life.[7][1]

At his death, Supreme Court president Dorit Beinisch placed him within the founding generation that laid the foundations of Israeli law.[1] She credited the judging of that generation with helping make the Supreme Court a defender of individual rights.[1] His approach included protections for citizens grounded in rights “not written in a book,” alongside an emphasis on the courts’ responsibility to review government conduct.[1] His decisions concerning censorship and the public’s right to know formed part of that record.[7]

His conduct of the Eichmann trial remained an especially important point of remembrance.[21] At his funeral, Justice Elyakim Rubinstein recalled the combination of a Jew’s consciousness of history with a judge’s commitment to a fair trial, even for Eichmann.[21] That remembrance emphasized the same relationship between historical responsibility and judicial discipline evident in Landau’s efforts to keep the trial focused on relevant evidence.[2][21] His insistence on courtroom procedure did not remove the trial’s importance for Jewish memory, but shaped the way he exercised his responsibilities within it.[2][21]

His work honoring the Righteous Among the Nations constituted another connection between his legal service and Holocaust remembrance.[5] As chairman during the commission’s formative period, he participated in establishing criteria and an orderly process for recognition.[5] His service in the Zionist Congress Tribunal likewise connected his judicial experience to institutions of Jewish public life beyond the Israeli court system.[15][6]

Landau died at his home in Jerusalem on May 1, 2011, two days after his 99th birthday.[7][1] He had left a letter asking medical teams not to prolong his life artificially.[1] He was buried at Jerusalem’s Har HaMenuchot cemetery.[1] The tributes surrounding his death recalled both the formative period of Israeli law in which he served and the continuing significance of decisions taken across his long judicial career.[1][21]

The most consequential controversy surrounding Landau’s public service concerned the 1987 interrogation commission’s authorization of limited physical pressure.[3][1] Legal scholars criticized its recommendations, and attorneys Felicia Langer and Lea Tzemel argued that, while the findings confirmed their longstanding allegations of perjury, the report condoned violence against prisoners.[3][19] Other criticism held that the rules enabled torture in security interrogations.[1] Beinisch later recalled that Landau himself insisted the rules he had established were lawful.[1]

On September 6, 1999, an expanded nine-judge Supreme Court panel headed by Aharon Barak unanimously ended the prior legal approach associated with the commission.[20] In the Public Committee Against Torture in Israel case, the Court held that the law then in force did not authorize the Shin Bet to employ physical methods such as shaking, the “Shabach” position, a “frog crouch,” or sleep deprivation beyond what interrogation inherently required.[22] The decision nullified the general directives authorizing physical means that infringed upon a suspect’s liberty.[3]

The Court also rejected the necessity defense as a source of advance legal authority for interrogation methods or directives permitting them.[22] It left open whether necessity might be raised as a defense in an individual criminal case, distinguishing that possibility from a general power to authorize such methods beforehand.[22] The controversy therefore concerned not only the severity of interrogation practices but also whether criminal-law defenses could supply the legal foundation for a standing administrative system.[20][22]