Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel

Abstract

We examine whether the level of deference shown by the Israeli Supreme Court to Military decisions has changed over time, by analyzing empirically the entire body of Supreme Court decisions in petitions against the Military Commander between 1990 and 2005. Setting forth a number of different factors which might generally impact the degree of deference towards State agencies, we hypothesize that when applied to the context of the relationship between the Court and the Military Commander during the examined period, a decrease in deference is expected. Our findings show that deference to the Military Commander has indeed diminished significantly. We argue that this is best explained by the continuation of the armed conflict (and its aftermath, namely the increase and routinization of petitions by the civilian population), and also - to some extent - by the rise of a substantive rule-of-law legal consciousness, central to which is the importance of human rights.

Keywords: deference, military commander, judicial review, empirical legal studies, emergency