Judicial Administrative Review in Times of Discontent: The Israel Supreme Court and the Palestinian Uprising
Israel Affairs, Forthcoming
42 Pages Posted: 28 Nov 2005
Most democracies offer some form of judicial review of administrative action. In common law systems, such review is preformed by a national court system of general jurisdiction; in civil law systems, it is typically performed by a system of specialized administrative-law courts. Judicial willingness to actively review executive action and policy varies among different nature and across subject matters. It is typically especially limited in military matters, especially in times of War. Essentially all Western court systems pursue a low-key, highly deferential policy of review in military matters, limiting their intervention to extreme cases, and deciding well after the winds of war have subsided. Until recently this was of little practical significance.
For over 50 years, since World War II ended, most of the West enjoyed a long period of peace and tranquility. But things have changed. Yet in recent years, a series of events has shaken Western complacency. Starting with the horrors of 9/11 in the United States, the subsequent wars in Afghanistan and Iraq and major terror attacks in Madrid and elsewhere, Western nations have become painfully aware of the need to adopt stricter security policies - which, in turn, meant a growing number of restrictions on basic human rights, and greater government oversight of private activities. Western nations have thus come to face the democratic dilemmas that we, in Israel, have known for too long, and have taken steps for which we, in Israel have been criticized for too long.
The Israeli Supreme Court is often discussed in studies comparing court activism and judicial protection of human and civil rights. Where the Israeli experience seems of particular comparative interest is in the Court's response to the dilemmas facing the judiciary on finding a balance between respecting legitimate national security concerns and protecting valued civil and human rights - maintaining the values of democracy and the integrity of the legal and political system in times of war. I believe that in this, the Israeli Court achieved unique results. While somewhat deferential to the military, especially in times of ongoing military activities, the Court has coped well to a continuous state of emergency since 1948, and has, for the most part, been a clear and steady voice in curbing executive excess, especially when it infringed on individual liberties.
This paper has four parts. Part II highlights the lesser known structural and jurisdictional background that enabled the Israeli Supreme Court to develop its public law jurisprudence. Part III uses leading cases of the Israeli Supreme Court to illustrate the complexity and diversity inherent to judicial review of the military in Israel, and the significant achievements of the Court from 1948 to the year 2000. Part IV focuses on the Supreme Court's judicial response to petitions relating to the Palestinian uprising of 2000 in Judea, Samaria and Gaza, the most violent period in four decades of Israeli control over the territories. The concluding Part V attempts to summarize the paper and place all its parts in perspective, with an overall evaluation of the Court's performance in the tumultuous recent years.
Keywords: national security, military, supreme court, israel, administrative law, deference
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