December 6, 2002

Israel’s Supreme Court balances individual rights and national securityWe are in a difficult time, when freedom-seeking countries are compelled to fight a vicious terrorism that knows no restraints, in order to protect democracy and its values. In the process of doing justice, we struggle to preserve the rule of law against those who wish to destroy the foundations of the rule of law.

As you know, Israel is a complex, fragmented society – splintered, into a multifaceted collection of different political perspectives and different ethnic groups. However, the Israeli judicial system is professional and independent, and strives to realize the shared values of our society, values that lie above the country’s differences. Our judicial work is outside the political sphere, even though its results may sometimes influence our social and political reality. From this point of view, I would like to point out, the dilemmas that we face as a result of our war against terror. Unfortunately, our Supreme Court has been confronting those dilemmas since the establishment of the State of Israel. Since its establishment, the Court has never hesitated to review government and military activities, while scrutinizing the government’s national security arguments.

The role of a court in any democracy is to protect democratic values, which are based on fundamental human rights. The role of the court, in times of peace as in times of war, is to ensure the constitutionality and legality of the fight against terror. The court’s duty is to ensure that the war against terror is conducted within the framework of the law and not outside it. This is the main contribution of the judicial system to a democracy in its struggle to endure. Needless to say, realizing this role during the fight against terror is difficult. However, our approach is that we cannot — and neither would we wish — to escape from this difficulty.

It is recognized that democracy is not only based on its formal definition — the rule of the majority — but also on its essential nature — the principles of freedom, equality and human dignity, foundational principles which form the basis of any democratic society. 1948, the year in which the State of Israel was founded, was the same year that saw the proclamation of the United Nations’ Universal Declaration of Human Rights. Since then, the goal of protecting human rights, which is expressed in the values of real democracy, is at the heart of the consensus in the international community.

Against the background of this domestic and international framework, the State of Israel has developed a constitutional and legal system based on Jewish and democratic values. Over the years, the Supreme Court has developed the idea of fundamental rights through its case law, reviewing the administrative activity of the branches of government to ensure that basic human rights were not unnecessarily infringed by security needs. Indeed, in any democratic society, human rights are not absolute. In the process of judicial review, the Court strikes a balance between the public interest and the fundamental human rights of the individual.

During the years, the Supreme Court of Israel has broadened the scope of judicial review. One of the main developments was the opening of the gates of the Supreme Court to any person that claimed a violation of his freedoms or rights.

Our Court does not insist that a petitioner establish his standing. Anyone — be he a resident of Israel or a resident of the administered territories — may apply directly to our Supreme Court in order to invoke judicial review of the acts of the executive branch, including the military authorities. I believe that no other country provides such access to its Supreme Court as does Israel. Moreover, the Supreme Court exercises judicial review as a court of first instance, not as a court of appeal.

As a result of this direct access to the Supreme Court, over the years Palestinians of the administered territories have submitted hundreds, if not thousands, of petitions against the Military Commander of the territories. Our judicial review dealt, to a large extent, with the legality of the invasive measures adopted by the military commander against the local population. The Court considered whether the measures were lawful and whether they were proportionate to and suitable for the purpose that they were intended to serve. It would be reasonable to say that no court in any other country has reviewed, during a state of emergency, acts of government or the military to the extent our court has done. The court has done this throughout its history without hesitation and without shirking from the difficulties involved, rendering decisions that were not always popular.

Judicial decisions cannot be divorced from the reality surrounding them. As a mirror, the issues that come before the court reflect the problems and conflicts on the social and public agenda. As times change, the issues brought before the court also change. The proper balance between the needs of the community and the rights of the individual may change according to the values of the time. These changes are not motivated by the different personal outlook of different judges. The changes derive from the different cultural, social and ethical milieu of the court in different periods.

In the history of the Supreme Court of Israel, our Court has dealt many times with emergency measures. As the years went by, our Supreme Court began to focus more on civil issues and issues arising from internal tensions and disputes in Israeli society. It can be said that in the 1980s and the 1990s, the Supreme Court of Israel established its role as the protector of human rights in a stable democracy. It intervened to secure the freedom of speech and the freedom to demonstrate, to reduce military censorship, and to advance equality between various sectors of the population.

All of this has been achieved despite the fact that Israel has never experienced a true period of calm. We have decided aspects of life in accordance with the values of a society that yearns for normalization even during times of tension. But terrorist activities have never ceased.

In September 2000, a wave of terror attacks, of ever-increasing viciousness, began to sweep the country, forcing Israel into a period of armed conflict. The terrorism that Israelis face daily is cruel and knows no bounds. Danger lies everywhere: when traveling by bus and when sitting in restaurants, for innocent passers-by, for women, for children in their beds, for the young and the elderly, even for families sitting down at their Seder table. At the same time, a great number of Palestinian civilians were also killed or injured as a result of the fighting. Israel is in the midst of an armed conflict, asserting its right to self-defense under international law. This is a struggle against people that recognize no law. These methods of terror are not the methods of the past. We are facing terrorists who are prepared to act as human bombs in order to carry out their evil mission.

As a result, in the last two years the Court was required to consider dozens of petitions that forced us to decide between the needs of security and the protection of human rights. The protection of human rights differs in times of peace and in times of war, since, naturally, the balance between security and human rights change. But we must remember that Israel has known a state of emergency ever since it was founded, and we are continually facing long-term dangers. If the State does not protect human rights in times of emergency, it may lose its democratic character even in times of peace. Therefore, the Court exercises judicial review both in times of peace and in times of emergency.

Since September 11, 2001, we are not alone in this terrible war against terrorism. On that day, the largest democracy in the world became the target of the worst terror attack in human history. The plague of terror is spreading and it rears it head every day in different parts of the world. This requires a proper response. Western democracies have prepared themselves for a response to terror and a struggle against it, even equipping themselves with new legal tools for this fight. Thus, for example, Canada, Britain, and the United States have introduced legislation designed for the current time of emergency. Many other countries are considering changes in their legislation. In contrast, Israel has had emergency laws since it was founded. Our struggle is an old one; therefore we did not require special new legislation.

The Government and the Knesset, as elected bodies, may respond to public opinion in deciding how they will deal with terror. However, the professionalism and independence of the judicial system obligates us, as judges, to exercise objective judgment that is not affected by public pressure, even though we also live in the heart of this terrifying reality. Because of the accessibility of the court, even issues arising from military operations have come before us. We did not refrain from dealing with them.

In exercising judicial review, our premise is that the law is not silent before the guns of war. Both international law and domestic Israeli law are relevant in times of emergency, and both of them provide for the exercise of judicial review even in times of war. Indeed, for the State of Israel, compromising security may become a question of survival. But we must ensure that security arguments are not employed except when they are clearly necessary. Questions arising from Israel’s security situation have prompted our Court to adopt doctrinal controls that restrict the military’s ability to infringe on personal rights by simply reciting the mantra of ‘national security.’ We must ensure that even when human rights must be violated to protect our security, such violations are only proportional to, and measured by, their necessity.

Let us hope that the difficult times that we are experiencing will soon pass, and that we will all be able to advance the values of law and justice in a time of peace.

(This is an excerpt from a speech Justice Beinish gave before the UJC General Assembly in Philadelphia last month.)

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Jason Harris

Jason Harris

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