December 23, 2002

Aharon Barak: Judicial review of the legality of the war on terrorism fortifies and strengthens the people in the long term.Even in the face of war and terrorist threats, Israel’s judiciary has a responsibility to protect the country’s democratic nature, according to Israel’s Supreme Court President Aharon Barak.

“Terrorism does not justify the neglect of accepted legal norms,” Barak told an international conference at Haifa University, in a staunch defense of judicial review of government, including the need for such review in the security arena.

“The court does not examine the wisdom of the war against terrorism,” he said, “but only the legality of the acts taken in furtherance of the war. It does not express agreement with the means adopted, but fulfills its role by judicial review of the constitutionality and legality of the executive acts.”

Barak’s remarks took place at a University of Haifa conference on ‘Democracy vs. Terror: Where Are the Limits’? sponsored by the University’s Faculty of Law and Germany’s Konrad Adenauer Foundation.

In Barak’s view, “judicial review of the legality of the war on terrorism may make the war against terrorism harder in the short term. However, it fortifies and strengthens the people in the long term.” Barak was referring to a case in which the Israeli Supreme Court held that the use of physical violence while interrogating a suspected terrorist is not permitted, even if using the violence may save lives

The chief justice said he does not believe that “we can limit our judicial ruling so that they will be valid only during wartime, and that we can decide that things will change in peace time.”

At the same time, Barak cited the need for a balance between national security and freedom of the individual. “Human rights cannot justify undermining national security in every case and in all circumstance,” he said. “Human rights are not a stage for national destruction.” The other side of the coin was that “national security does not grant an unlimited license to harm the individual.”

His credo: “Balance and compromise are the price of democracy.” To reach such a balance in deciding on a verdict, Barak spoke of a “zone of reasonableness.”

As long as the government behaved within the framework of a “zone of reasonableness,” he said, “there is no basis for judicial intervention.” It was the court’s basic premise, he said, that it should not adopt a position on the question of what are the efficient security measures for the war against terrorism.

“The court must be persuaded that the security considerations actively motivated the government’s action, and were not merely a pretext. It must be convinced that the security measures adopted were the available measures least damaging to human rights.”

Nevertheless, Barak admitted to a certain uneasiness with the tension between protecting human rights and protecting the Israeli people. “Our apprehension that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us,” he said.

“We are, however, judges,” he concluded. “We, as judges, we have a North Star that guides us the fundamental values and principles of constitutional democracy.”

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Jason Harris

Jason Harris

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