The Supreme Court of Israel and the War Against Terror

Abstract

Terrorism defies democracy. It poses enormous challenges to a democratic state. Not all means available to fight terrorism are necessarily legal or justifiable and decisions taken might be inconsistent with democratic values. Combating terrorism demands the sensitive assessment of issues and striking a balance between the claims of national security on the one hand and the principles of human rights on the other. In October 2000 the Israeli-Palestinian conflict, which many hoped was coming to an end, entered a new phase. Suicide bombings in Israel and curfews on the West Bank became routine. The new Intifada1 and Israeli military operations in Palestinian cities posed serious questions regarding the balance between the defense of human rights and the security needs of the state at a time of war. Is the collective punishment of an entire city legitimate? Is it permissible to destroy the homes of suicide bombers? What legal instruments, if any, should the Court use to review the actions of the security forces? Should the legal powers of the Israeli Defense Forces and of other bodies dealing with terrorism be increased? What should the scope of judicial intervention be when dealing with measures used against terrorism? This paper briefly reviews the most important security cases decided by Israel's Supreme Court between 2001 and 2002, as well as new legislation framing the authority and activities of the General Security Service. The aim of this paper is to present the reader with some of the problems Israel faces in its war against terrorism. In most cases, the Court stated that it would not intervene in operational military considerations. The cases presented focus on the potentially conflictual demands of the Court to recognize the state's obligation to protect its citizens on the one hand, while ensuring the constitutionality and legality of war on the other.

Keywords: Constitutional Law, Israel, war, terror