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Abstract
Mapping cardinal cases of the Israeli Supreme Court, the article will demonstrate how, in the Israeli constitutional experience, the concept of national security came to be transformed from a balancing right to a background element. Along these lines, the article will argue that while Israeli constitutionalism indeed awarded national security parameters a decisive role in the realms of the human rights balance judicial discourse, it equally embarked on a procedure of delineating the existence of national security as an autonomous consideration, in cases where national security exigencies ceased to be obvious in the Israeli reality. Compelling the examination of a national security debate under the human rights lens, the Israeli Supreme Court aligned its jurisprudence with that of other supreme courts as well as with the international thematic constitutionalism model, aspiring to interpret the different fields of laws and various provisions under the concept of the right to dignity.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Solon Solomon is a researcher at the King's College London Dickson Poon School of Law.
Notes
1 Diane Desierto, Necessity and National Emergency Clauses: Sovereignty in Modern Treaty Interpretation (The Netherlands: Brill, 2012), 187, 271. For the fact that in a number of jurisdictions including Israel, Canada, New Zealand and the United Kingdom as well as in international jurisprudence a state of emergency is linked inter alia with national security issues see Emanuel Gross, ‘How to Justify an Emergency Regime and Preserve Civil Liberties in Times of Terrorism’, South Carolina Journal of International Law & Business 5 (2008): 1; Ben Golder and George Williams, ‘Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism’, Journal of Comparative Policy Analysis 8 (2006): 43, 45; Janet Hiebert, ‘The Evolution of the Limitation Clause’, Osgoode Hall Journal 28 (1990): 103, 113. For the fact that this state of emergency can draw from the drastic change of the economic landscape in a country see ‘The Protection of National Security in IIAs', UNCTAD Series on International Investment Policies for Development, United Nations (2009), 8 (on file with the author). But see also Hannes Schloemann and Stefan Ohlhoff, ‘“Constitutionalization” and Dispute Settlement in the WTO: National Security as an Issue of Competence’, American Journal of International Law 93 (1999): 424, 426 (referring to national security as the Achilles' heel of international law).
2 Thus for example article 4 of the International Covenant on Civil and Political Rights stipulates that ‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'. See also article 15 of the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight Against Terrorism, 11 July 2002, http://www1.umn.edu/humanrts/instree/HR%20and%20the%20fight%20against%20terrorism.pdf.
3 Stephan Schill and Robyn Briese, ‘“If the State Considers”: Self-Judging Clauses in International Dispute Settlement’, Max Planck United Nations Yearbook 13 (2009): 61, 63; Laura Conn, ‘The Enumeration of Vital Civil Liberties within a Constitutional State of Emergency Clause: Lessons from the United States, the New Democracy of South Africa and International Treaties and Scholarship’, University of Pennsylvania Journal of Constitutional Law 10 (2008): 791, 794 (noting that during times of emergency, civil liberties have been pushed back to allow for the concerns of national security and after the threat has ceased, civil liberties have bounced back). Richard Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford: Oxford University Press, 2006), 5; Richard Falk, ‘Encroaching on the Rule of Law: Post-9/11 Policies within the United States', in National Insecurity and Human Rights: Democracies Debate Counterterrorism, ed. Alison Brysk and Gershon Shafir (Berkeley and Los Angeles: University of California Press, 2007), 15. See also Robert Jennings, ‘Recent Cases on Automatic Reservations to the Optional Clause’, International and Comparative Law Quarterly 7 (1958): 349, 362 (noting that in national security issues, domestic governments should be the sole trustees and international courts cannot have a useful opinion). For the fact that national security concerns can be taken into account also outside the realms of a balancing between rights and interests see article 72 of the ICC Statute stipulating that document production requests can be refused in cases where the display of information would, in the opinion of a state, prejudice its national security interests. For the balancing process and the problems it may entail see Moshe Cohen-Eliya and Gila Stopler, ‘Probability Thresholds as Deontological Constraints in Global Constitutionalism’, Columbia Journal of Transnational Law 49 (2010): 75, 82–9.
4 Michel Rosenfeld, ‘Modern Constitutionalism as Interplay between Identity and Diversity’, in Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives, ed. Michel Rosenfeld (Durham and London: Duke University Press, 1994), 27–8.
5 Abigail Moncrieff, ‘Common-Law Constitutionalism, the Constitutional Common Law, and the Validity of the Individual Mandate', Boston University Law Review 92 (2012): 1245, 1248.
6 Menachem Mautner, Law and the Culture of Israel (New York: Oxford University Press, 2011), 178.
7 See for example Yoram Dinstein, noting that ‘the law of war usually creates a delicate balance between two poles: military necessity on one hand, and humanitarian considerations on the other’, in Yoram Dinstein, ‘Legislative Authority in the Administered Territories' [in Hebrew], Iyunei Mishpat 2 (1973): 505, 509.
8 On this see Derek Jinks, Jackson Maogoto and Solon Solomon, ‘Introducing International Humanitarian Law to Judicial and Quasi Judicial Bodies', in Appling International Humanitarian Law in Judicial and Quasi Judicial Bodies: International and Domestic Aspects, ed. Derek Jinks, Jackson Maogoto and Solon Solomon (The Hague: TMC Asser Press, 2014), 4–5.
9 C. William Michaels, No Greater Threat: America After September 11 and the Rise of a National Security State (New York: Algora Publishing, 2005), 506; S. Neil MacFarlane and Yuen Foong Khong, Human Security and the UN: A Critical History (Bloomington: Indiana University Press, 2006), 254.
10 Guy Harpaz and Yuval Shany, ‘The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion under Belligerent Occupation Law’, Israel Law Review 43 (2010): 544–5. See also infra the case of A. and Others v. United Kingdom, where both the House of Lords as well as the European Court of Justice held that erroneously national security perils had been cited for the derogation of the European Convention on Human Rights and the restriction of the right to liberty of certain individuals.
11 David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany: State University of New York Press, 2002), 115.
12 For the fact that migrants have been portrayed as a national security peril see Ioannis Kolovos, ‘Illegal Immigration, A Multifaceted National Security Threat: The Case of Greece', Research Paper No.145, September 2010, Research Institute for European and American Studies, 15–16; HCJ 7385/13, para. 29; Natalie Klein, Maritime Security and the Law of the Sea (Oxford: Oxford University Press, 2011), 6; Columba Peoples and Nick Vaughan-Williams, Critical Security Studies (London: Routledge Press, 2010), 91, 134; Reinhard Lohrmann, ‘Migrants, Refugees and Insecurity: Current Threats to Peace?’, International Migration 38, no. 4 (2000): 3, 6; Reinhard Lohrmann, ‘Migrants, Refugees and Insecurity: Current Threats to Peace?’, International Migration 38, no. 4 (2000): 3, 4; Jef Huysmans, The Politics of Insecurity: Fear, Migration and Asylum in the EU (London: Routledge, 2006), 18, 20; David Harris, ‘Immigration and National Security: The Illusion of Safety through Local Law Enforcement Action', Arizona Journal of International and Comparative Law 28 (2011): 383, 384.
13 National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges: Study for the LIBE Committee, European Parliament, Directorate-General for Internal Policies 2014, 7–8, http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509991/IPOL_STU%282014%29509991_EN.pdf; for the idea that courts should have a cardinal role in the keeping of the rule of law and human rights even through engaging in what is to be perceived as ‘judicial lawmaking’ see Aharon Barak, ‘The Role of a Supreme Court in a Democracy', Hastings Law Journal 53 (2002): 1205, 1206–7. See also Eyal Benvenisti and George Downs, ‘National Courts, Domestic Democracy, and the Evolution of International Law', European Journal of International Law 20 (2009): 59, 63.
14 For the fact that constitutionally entrenched human rights and liberties are seen in domestic constitutions under the lens of the right to human dignity see Solon Solomon, ‘The Dynamic Law of Occupation: Inaugurating International Thematic Constitutionalism', Harvard International Law Journal Online 54 (2012): 59, 70–3.
15 Ibid., 59.
16 Harpaz and Shany, ‘The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion under Belligerent Occupation Law’, 514, 526.
17 On this see characteristically the Supreme Court position that military needs are the needs of the military commander and not national security needs in a broad sense. (HCJ 393/82 Jamayit Iscan Almalmun Althaunia Almahduda Almesaulia v. The Commander of IDF in the Judea and Samaria Area 37(4) PD 738, para. 13 [1983]. See also HCJ 2977/91, Thaj v. Minister of Defence, para. 474).
18 HCJ 7015/02 Ajouri v. IDF Commander, PD 56 (6) 352, 383 (2002). See also HCJ 7052/03, Adallah v. Minister of Interior, PD 61 (2) 202 (2006), 468.
19 Written Statement of the Government of Israel, Advisory Opinion, 2004 ICJ 131, at 7 (30 January 2004), http://www.icj-cij.org/docket/files/131/1579.pdf; Israeli Ministry of Foreign Affairs, Saving Lives: Israel's Anti-Terrorist Fence – Answers to Questions (1 January 2004), http://www.mfa.gov.il/MFA/Terrorism+Obstacle+to+Peace/Palestinian+terror+since+2000/Saving+Lives-+Israel-s+anti-terrorist+fence+-+Answ.htm; HCJ 2056/04 Beit Sourik Village Council v. Israel PD 58(5) 807, paras 28–9 [2004].
20 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep. 2004 131, para. 82; Sarah Williams, ‘Has International Law Hit the Wall? An Analysis of International Law in Relation to Israel's Separation Barrier’, Berkeley Journal of International Law 24 (2006): 192, 197; Emanuel Gross, ‘Perspective: Combating Terrorism: Does Self-Defense Include the Security Barrier? The Answer Depends on Who You Ask’, Cornell International Law Journal 38 (2005): 569; Mimi Trenk, ‘An Unfair Advantage: Comparing the International Court of Justice to a Form of ADR and why it was Inappropriate for the Court to Issue an Advisory Opinion in the case of Israel's Separation Fence’, Cardozo Journal of Conflict Resolution 8 (2006): 371, 377.
21 Illegal Israeli actions in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory, G.A. Res. ES-10/14, at 3, U.N. GAOR, 10th Emergency Special Sess., 23d plen. mtg., U.N. Doc. A/Res/ES-10/14 (12 December 2003).
22 Yuval Shany, ‘Capacities and Inadequacies: A Look at the Two Separation Barrier Cases', Israel Law Review 38 (2005): 230, 234.
23 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep. 2004 131, para. 57.
24 Ibid., para. 58.
25 Ibid., para. 141. See also Shany, ‘Capacities and Inadequacies’, 235, 239–40 (deploring the sweeping manner with which the court rejected Israel's assertions for the military necessity of the barrier's erection as well as noting the limited empathy of the ICJ towards the victims of terrorism as well as the Palestinian villagers).
26 Legal Consequences of the Construction of a Wall, para. 137.
27 Ibid., para. 121.
28 Declaration of Judge Buergenthal, ICJ Rep. 131, 240, para. 3 [2004].
29 Ibid., 243–4, para. 7 [2004].
30 Separate Opinion of Judge Owada, ICJ Rep. 131, 271, para. 30 [2004].
31 HCJ 2056/04 Beit Sourik Village Council v. Israel PD 58(5) 807, paras 35, 39 [2004].
32 Ibid., para. 1.
33 Ibid., para. 86.
34 For arguments against such an expansion see Ardi Imseis, ‘Agora: Advisory Opinion on Construction of a Wall in the Palestinian Occupied Territory: Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion’, American Journal of International Law 99 (2005): 102.
35 Beit Sourik, para. 36.
36 Ibid., para. 32.
37 HCJ 24/91, Timraz et al. v. IDF Commander of the Gaza Strip, 45(2) PD 325.
38 HCJ 2056/04, Beit Sourik v. Israel, para. 32.
39 HCJ 7957/04, Mara'abe v. Prime Minister of Israel PD 38 (2) 393 [2005].
40 Solon Solomon, The Justiciability of International Disputes: The Advisory Opinion on Israel's Security Fence as a Case Study (Nijmegen: Wolf Legal Publishers, 2009), 176.
41 On this see Mara'abe, paras 1, 24.
42 Ibid., paras 18, 21.
43 Solomon, The Justiciability of International Disputes, 140; David Kretzmer, ‘The Light Treatment of International Humanitarian Law’, Am. J. Int'l. L. 99 (2005): 88, 93; Shany, ‘Capacities and Inadequacies’, 243.
44 HCJ 769/02, Public Committee Against Torture v. Israel, Judgment of 11 December 2005, paras 1–2, http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.htm.
45 Ibid., para. 63.
46 Ibid., para. 22.
47 Ibid., para. 46. On the right to protect the life of the soldiers see also Solon Solomon, ‘Targeted Killings and the Soldiers' Right to Life’, ILSA Journal of International Law 14 (2007): 99.
48 Public Committee Against Torture, para. 57.
49 Ibid., para. 35. See also Inter-American Commission on Human Rights, Third Report on Human Rights in Colombia, paras 53, 56 (1999).
50 Ibid., para. 22.
51 Ibid., paras 61–4.
52 Kristen Eichensehr, ‘On Target? The Israeli Supreme Court and the Expansion of Targeted Killings', Yale Law Journal 116 (2007): 1873.
53 Feisal Mohamed, ‘The Targeted Killing Memo: What the U.S. could Learn from Israel', The Huffington Post, 2 June 2013; Lesley Wexler, ‘The Role of the U.S. Judicial Branch during the Long War: Drone Courts, Damage Suits, and Freedom of Information Act (FOIA) Requests in Applying International Humanitarian Law', in Judicial and Quasi-Judicial Bodies: International and Domestic Aspects, ed. Derek Jinks, Jackson Nyamuya Maogoto, and Solon Solomon (The Hague: TMC Asser Press, 2014), 61.
54 For a critical stance on the influence of the particular decision on the International Committee of the Red Cross Interpretative Guidance see W. Hays Parks, ‘Direct Participation in Hostilities: Perspectives on the ICRC Interpretive Guidance: Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’, New York University Journal of International Law & Policy 42 (2010): 769, 793.
55 Israeli Ministry of Foreign Affairs, ‘Security Cabinet Declares Gaza Hostile Territory', 19 September 2007, http://www.mfa.gov.il/MFA/Government/Communiques/2007/Security+Cabinet+declares+Gaza+hostile+territory+19-Sep-2007.htm.
56 Ibid. See also the relevant statements of senior Israeli defence officials that ‘we need to show the residents of Gaza that life does not carry on freely when Kassam rockets fall in Israel. If rockets are fired, then the Palestinians will pay a price'.
Quoted by Yaakov Katz, ‘Barak Set to Approve List of Sanctions against Gaza', Jerusalem Post, 23 October 2007, http://www.jpost.com/servlet/Satellite?cid=1192380628338&pagename=JPost%2FJPArticle%2FPrinter. See also this statement made in the plaintiff's writ to the Supreme Court, Al-Bassiouni et al. v. Prime Minister of Israel, Plaintiff's Writ (28 October 2007), 14, 46,
57 Solon Solomon, ‘The Great Oxymoron: Jus in Bello Violations as Legitimate non-forcible Measures, of Self-Defence: The Post-Disengagement Israeli Measures towards Gaza as a Case Study’, Chinese Journal of International Law 9 (2010): 501, 522.
58 HCJ 9132/07, Al-Bassiouni et al. v. Prime Minister of Israel, Judgment of 30 January 2008, para. 2, http://elyon1.court.gov.il/files/07/320/091/N25/07091320.n25.pdf.
59 Ibid., para. 22.
60 Ibid., paras 4, 11.
61 For the augmenting role of quasi-judicial bodies in the application of international humanitarian law see Russell Buchan, ‘The Mavi Marmara Incident and the Application of International Humanitarian Law by Quasi-Judicial Bodies', in Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies, 479, 496.
62 Turkel Committee Report: Public Commission to Examine the Maritime Incident (2011), http://www.turkel-committee.gov.il/files/wordocs/8808report-eng.pdf.
63 ‘Turkey FM: We Can't Stop Upcoming Aid Flotilla to Gaza, Haaretz', 30 May 2011, http://www.haaretz.com/news/diplomacy-defense/turkey-fm-we-can-t-stop-upcoming-aid-flotilla-to-gaza-1.364980.
64 Turkel Committee Report, 51.
65 Ibid., 50.
66 Ibid., 48.
67 Ibid.
68 Citizenship and Entry into Israel Law (Temporary Order), 2003, S.H. 544.
69 Daphne Barak-Erez, ‘Israel: Citizenship and Immigration Law in the Vise of Security, Nationality, and Human Rights', International Journal of Constitutional Law 6 (2008): 184, 185.
70 Guy Davidof and others, ‘State or Family? Citizenship Law and Law of Entry to Israel (Provisional Measure)-2003′ [in Hebrew] Law & Governance 8 (2005): 643, 646.
71 Yoav Peled, The Challenge of Ethnic Democracy: The State and Minority Groups in Israel, Poland and Northern Ireland (Oxford: Routledge, 2014), 134; Ruth Lapidoth and Ofra Friesel, ‘Some Reflections on Israel's Temporary Legislation on Unification of Families', Isr. L. Rev. 43 (2010): 457, 459; HCJ 7052/03, Adalah et al. v. Minister of Interior, Judgment of 14 May 2006 (Rivlin), para. 17.
72 On this see Barak-Erez, ‘Israel’, 185 (noting that the amendment was enacted is based on an assumption that all Palestinians residing in Israel would uniformly place loyalty to their people above loyalty to the state).
73 HCJ 7052/03, Adalah et al. v. Minister of Interior, Judgment of 14 May 2006.
74 Ibid. (Barak), para. 1.
75 Ibid. (Barak), para. 84.
76 Ibid. (Barak), paras 79–81.
77 Ibid. (Barak), para. 81.
78 Daphne Barak-Erez, ‘Preserving Civil Liberties in an Age of Global Terror: International Perspectives: Terrorism and Profiling: Shifting the Focus from Criteria to Effects', Cardozo Law Review 29 (2007): 1, 6–9.
79 Peled, The Challenge of Ethnic Democracy, 138.
80 HCJ 466/07, Galon and als. v. Minister of Interior, Judgment 11 January 2012, http://elyon1.court.gov.il/files/07/660/004/o30/07004660.o30.htm.
81 Ibid. (Levy), paras 32, 46.
82 HCJ 7052/03 (Chesin), para. 47; ibid. (Barak), paras 38–9; ibid. (Levy), para. 7.
83 See also Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, UN Refugee Agency, 2012 Guideline No. 30, http://www.unhcr.org/505b10ee9.html.
84 Guideline No. 30.
85 Article 26 of the Refugees Convention prohibits posing restrictions to individuals that have presented themselves before state authorities. On this see also James Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005), 706–8. For the fact that this is the position adopted also by the European Union see Directive 2008/115/EC of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, O.J. L 348/98, Preamble, Recital 9.
86 Donald Kerwin, ‘The Use and Misuse of “National Security” Rationale in Crafting U.S. Refugee and Immigration Policies', International Journal of Refugee Law 17 (2005): 749, 763.
87 Ibid., 758–9. See also Reuven Ziegler, noting that the lengthy detention period of up to three years is meant to deter future asylum-seekers from crossing Israel's border and as such is not in tandem with the Geneva Convention on the Status of Refugees. Reuven Ziegler, ‘The New Amendment to the “Prevention of Infiltration” Act: Defining Asylum-Seekers as Criminals', 16 January 2012, http://en.idi.org.il/analysis/articles/the-new-amendment-to-the-prevention-of-infiltration-act-defining-asylum-seekers-as-criminals. Ibid., 758–9.
88 A. and Others v. United Kingdom, Grand Chamber, Application No. 3455/05, Judgment, 19 February 2009.
89 Ruvi Ziegler, ‘Detention of African Asylum Seekers: Welcome to Round Three', Interest Group on Migration and Refugee Law, 19 December 2014, https://migreflaw.wordpress.com/2014/12/19/detention-of-african-asylum-seekers-welcome-to-round-three/.
90 N. v. Knesset, Petition for Provisional Decree and Emergency Hearings, 4 October 2012, paras 208–9 (on file with the author) (in Hebrew).
91 HCJ 7385/13, para. 29.
92 N. v. Knesset, Petition for Provisional Decree and Emergency Hearings, 4 October 2012, para. 195 (on file with the author) (in Hebrew).
93 Reuven Ziegler, ‘A Matter of Definition: On Infiltrators and Asylum Seekers in Israel', The Israel Democracy Institute, 26 January 2011, http://en.idi.org.il/analysis/articles/a-matter-of-definition-on-infiltrators-and-asylum-seekers-in-israel. For a similar tendency in the Canadian legal order see Sharryn Aiken, ‘Manufacturing “Terrorists”: Refugees, National Security and Canadian Law, part 2, 19 Refuge, 116 (2001).
94 HCJ 7146/12, para. 50; ibid. (Folgeman), paras 10–11.
95 Ibid. (Arbel), para. 120.
96 HCJ 7385/13, para. 37.
97 Ibid.
98 Ibid. (Folgeman), para. 45.
99 Ibid. (Arbel), paras 112–13.
100 Ibid. (Arbel), para. 120.
101 Ibid. (Jubran), para. 3.
102 HCJ 7146/12, Adam v. The Knesset, Judgment 16 September 2013 [in Hebrew], http://elyon1.court.gov.il/files/12/460/071/b24/12071460.b24.htm.
103 Reuven Ziegler, ‘On the Israeli Supreme Court Judgment', Blogpost, Interest Group on Migration and Refugee Law, 22 September 2013, http://migreflaw.wordpress.com/2013/09/22/blogpost-on-the-israeli-supreme-court-judgment/.
104 Adam v. The Knesset, 120.
105 Anonymous et al. v. The Knesset, Petition, 15 December 2013 [in Hebrew], http://www.acri.org.il/he/wp-content/uploads/2013/12/hit8425.pdf.
106 HCJ 7385/13 Eitan v. Israel, Judgment 22 September 2014.
107 For the need of such a balance see Golder and Williams, ‘Balancing National Security and Human Rights', 49; contra Simon Bronitt, ‘Constitutional Rhetoric v. Criminal Justice Realities: Unbalanced Responses to Terrorism?’ Public Law Review, 14 (2003): 70, 80; Mark Neocleous, ‘Security, Liberty and the Myth of Balance: Towards a Critic of Security Politics', Contemporary Political Theory, 6 (2007): 131.
108 Thus in the realms of Indian constitutionalism see the opinion of former Chief Justice Venkatachaliah that national security and human rights are not antithetical, in: ‘Editorial, National Security and Human Rights Not Antithetical', Times of India, 20 April 1998, at 11. Moreover, in Indian constitutionalism such balancing between national security and human rights is not taking place explicitly but in a more discreet way through the restrictive reading of national security measures such as that of preventive detention. On this see C. Raj Kumar, ‘Human Rights Implications of National Security Laws in India: Combating Terrorism while Preserving Civil Liberties', Denver Journal of International Law & Policy 33 (2005): 195, 213–14. For the fact that in Indian Supreme Court jurisprudence invocation of the ‘public interest’ sometimes has national security grounds lying behind it, see Sudha Setty, ‘Litigating Secrets: Comparative Perspectives on the State Secrets Privilege’, Brooklyn Law Review 75 (2009): 201, 251–4 .
109 Lorenzo Zucca, ‘A Transantlantic Divide on the Balance Between Fundamental Rights and Security’, Boston College International and Comparative Law Review 32 (2009): 231, 232. On the US position see also William W. Burke-White, ‘Human Rights and National Security: The Strategic Correlation’, Harvard Human Rights Journal 17 (2004): 249; Eillen Kaufman, ‘Deference or Abdication: A Comparison of the Supreme Courts of Israel and the United States in cases involving Real or Perceived Threats to National Security’, Washington University Global Studies Law Review 12 (2013): 95, 96.
110 Nicolo Nourafchan, ‘Judging Torture: Lessons from Israel’, Georgetown Journal of International Law 43 (2012): 1259, 1314–15.
111 See also the view of Professor Shlomo Shlonim in Malvina Halberstam, ‘Judicial Review: A Comparative Perspective: Israel, Canada and the United States', Cardozo Law Review 31 (2010): 2393, 2434.
112 See Alison Brysk, ‘Human Rights and National Insecurity in National Insecurity and Human Rights: Democracies Debate Counterterrorism', in National Insecurity and Human Rights, 4 (noting that whereas the US faced 9/11 with a relative dearth of recent security doctrine, Germany had absorbed a systematic reconstitution of its identity following defeat in World War II, previous democratic response to a more manageable terrorist threat during the 1970s and a strong normative and institutional commitment to European regional security). See also Lorenzo Zucca's observation that ‘decades of conflict, which brought condemnation by the European Court of Human Rights, taught the United Kingdom that terrorism should be addressed within the established criminal justice system'. Zucca, ‘A Transantlantic Divide on the Balance Between Fundamental Rights and Security', 236. For the fact that the Israeli Supreme Court has been criticised in the way it treated national security matters in the 1990s see Ardi Imseis, ‘“Moderate” Torture on Trial: Critical Reflections on the Israeli Supreme Court judgment concerning the legality of General Security Service Interrogation Methods', Berkeley J. Int'l. L. 19 (2001): 328.
113 See for example the issue of the drones and the Al-Aulaqi lawsuits in the US. On this see Lesley Wexler, ‘The Role of the U.S. Judicial Branch during the Long War', in Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies, 61.
114 David Cole, ‘International Law and the War on Terror: Rights over Borders: Transnational Constitutionalism and Guantanamo Bay’, Cato Supreme Court Review 47 (2007–2008).
115 Charkaoui v. Canada (Citizenship and Immigration) [2007] 1 S.C.R. 350, 2007 SCC 9.
116 Canada (Prime Minister) v. Khadr [2010] 1 S.C.R. 44, 2010 SCC 3.
117 Manuel Altozano, Garzon Investigara Guantanamo al no Constar Causas Abiertas en EE UU, El Pais, 30 January 2010, http://elpais.com/diario/2010/01/30/espana/1264806007_850215.html.
118 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 4 April 2006, 1 BvR 518/02 (F.R.G.); Bundesgerichtshof [BFG] [Federal Court of Justice] 26 October 2006, III ZR 40/06 (F.R.G.).
119 Olivier Lepsius, ‘Human Dignity and the Downing of Aircraft’, German Law Journal 7 (2006): 761.
120 Solomon, ‘The Dynamic Law of Occupation’, 59.