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Notes
Guy I. Seidman is a Senior Lecturer, the Interdisciplinary Centre, Herzliya, Israel.
1. In common law systems, such review is typically pre-formed by a national court system of general jurisdiction; in civil law systems, by a system of specialized administrative law courts.
2. For further discussion see, for example, Rachel Vorspan, ‘Law and War: Individual Rights, Executive Authority, and Judicial Power in England During World War I’, Vand. J. of Transnat'l L., Vol. 38 (2005), p. 261; Tracey E. George, ‘Symposium: Other Disciplines, Methodologies, and Countries: Studying Courts and Crisis’, Mo. L. Rev., Vol. 69 (2004), p. 951; Diane H. Mazur, ‘Rehnquist's Vietnam: Constitutional Separatism and the Stealth Advance of Martial Law’, Indiana L. J., Vol. 77, p. 701.
3. See Gary J. Jacobson, ‘Judicial Activism in Israel’, in Kenneth M. Holland (ed.), Judicial Activism in Comparative Perspective, London, 1991, p. 90; Martin Edelman, ‘Israel’, in C. Neal Tate and Torbjorn Vallinder, The Global Expansion of Judicial Power, New York, 1995, p. 403.
4. One such instance, concerning both a resetting of precedent and statutory intervention involved the question of the holding of human ‘bargaining chips’.
5. While Israel famously does not have a Constitution, the Knesset has passed a string of ‘Basic Laws’, serving as chapters of a future constitution. For a useful introduction see Marcia Gelpe, ‘Constraints on Supreme Court Authority in Israeli and the United States: Phenomenal Cosmic Powers; Itty Bitty Living Space’, Emory Int'l L. Rev., Vol. 13 (1999), p. 493; Menachem Hofnung, ‘The Unintended Consequences of Unplanned Constitutional Reform: Constitutional Politics in Israel’, Am. J. Comp. L., Vol. 44 (1996), p. 585; Stephen Goldstein, ‘Protection of Human Rights by Judges: The Israeli Experience’, St. Louis L. J., Vol. 38 (1994), p. 605.
6. On the background to the British mandate see www.mideastweb.org/mandate.htm; see the http://domino.un.org/UNISPAL.NSF/0/c7aae196f41aa055052565f50054e656?OpenDocument (on the formation of the mandatory court system; especially sections 43–44).
7. Of course the mandatory regime was non-democratic. For an overall evaluation see E. Malchi, The History of the Law of Palestine, 2nd edition, Tel Aviv, 1953, pp. 166–172 (Hebrew).
8. The Israeli court was more willing to hear appeals against administrative actions carried out by Israeli authorities under emergency powers—most often the very same emergency measures enacted by the British as the Defence (Emergency) Regulations, 1945.
9. The achievements are attributed in particular to court presidents Meir Shamgar (1983–1995) and Aharon Barak (1996–2006); on Barak's judicial vision see Aharon Barak, ‘Foreword: A Judge on Judging: The Role of the Supreme Court in a Democracy’, Harv. L. Rev., Vol. 116 (2002), pp. 16, 97–110.
10. Data available at the Supreme Court's website suggests that during 2006 the number of undecided cases in the court's docket was about 6000 (!).
11. A poll of Israeli's trust of public institutions found that 81 percent of Israelis had trust in the IDF, 76 percent in the Supreme Court, 67 percent in the police, but only 44 percent trust the media, 40 percent trust government ministries and 17 percent trust ‘the political system’, Ma'ariv, 17 January 2003. A recent poll showed a deterioration in public trust: only 22 percent said they trusted political parties; one-third trust the Knesset, 44 percent trust the media, 68 percent trust the Supreme Court and 79 percent trust the IDF, Jerusalem Post, 5 October 2006. For rates of public trust in other countries see James L. Gibson, Gregory A. Caldeira and Vanessa A. Baird, ‘On the Legitimacy of National High Courts’, Am. Pol. Sci. Rev., Vol. 92 (1998), p. 343, http://aja.ncsc.dni.us/courtrv/cr36-3/CR%2036-3.pdf.
12. See Gad Barzilai, Ephraim Yuchtman-Yaar and Zeev Segal, The Israeli Supreme Court and the Israeli Public, Tel Aviv, 1994; Yoav Dotan, ‘Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice During the Intifada’, Law and Society Rev., Vol. 33 (1999), pp. 319, 324–325; Ariel L. Bendor and Zeev Segal, ‘Constitutionalism and Trust in Britain: An Ancient Constitutional Culture, A New Judicial Review Model’, Am. U. Int'l L. Rev., Vol. 17 (2002), p. 683.
13. Admittedly, not all eligible Israeli citizens are drafted. For details see Guy Seidman, Eyal Nun, ‘Women, The Military and the Court: Israel at 2001’, S. Cal. Rev. L. & Women's Stud., Vol. 11 (2001), p. 91 (hereinafter, Seidman and Nun).
14. H.C.J. 7/48 Ahmed Showky Al-Karbutli v. Minister of Defence, 2 P.D. 5 (1949). The case was first brought before the court on 1 November 1948; the decision was given on 3 January 1949).
15. H.C.J. 7/48 Ahmed Showky Al-Karbutli v. Minister of Defence, at 15 (per Justice Olshan for the court).
16. There are two aspects to this statement: first, Israel has annexed some territories occupied in 1967—namely parts of Eastern Jerusalem and the Golan Heights—in a move that is yet to be recognized by the international community. Second, Israeli law applies personally to the Israeli settlers in the territories. As we shall see, the Supreme Court extends to them the full rights and privileges that Israeli citizens enjoy. See, for example, Asher Maoz, ‘The Application of Israeli Law to the Golan Heights is Annexation’, Brook. J. Int'l L., Vol. 20 (1994), p. 355.
17. For discussion see Adam Roberts, ‘Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967’, Am. J. Int'l L., Vol. 83 (1990), p. 44.
18. The court applied international law—as interpreted by the court—and substantive principles of Israeli public law—primarily due process and governmental fairness—in addition to the law prevailing in the territories prior to the Israeli occupation. See David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, Albany, NY, 2002; Daphne Barak-Erez, ‘The International Law of Human Rights and Constitutional Law: A Case Study of an Expanding Dialogue’, Int'l J. Const. L., Vol. 2 (2004), pp. 611, 615–616.
19. By comparison, it recently took the US Supreme Court over two years to hold that federal courts had the jurisdiction to hear challenges brought by an alien. See Rasul v. Bush, 542 U.S. 466 (2004). Also see Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rumsfeld v. Padilla, 542 U.S. 426 (2004).
20. H.C.J. 910/86, Ressler v. Minister of Defence, PD 42(2) 441; available in English on www.court.gov.il.
21. H.C.J. 3267/97, 715/98 Rubinstein and Ressler v. Minister of Defence, PD 52(5) 481; available on the Israeli Supreme Court website: www.court.gov.il
22. See H.C.J. 4541/94, Miller v. Minister of Defence, P.D. 49(4) 94 (8 November 1995).
23. H.C.J. 1284/99 Doe v. Galili, P.D. 53(2) 62 (28 March, 1999); translated in full: Seidman and Nun, pp. 135–151.
24. See Seidman and Nun, pp. 122, 143.
25. The Prevention of Sexual Harassment Law, 5758-1998; see in full www.justice.gov.il/NR/rdonlyres/53D06B83-FBC7-49C8-BA87-A452D4A07DB1/0/PrventionofSexualHarassmentLaw.doc.
26. See Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service (GSS) Regarding Hostile Terrorist Activity, 1987, reprinted in Isr. L. Rev., Vol. 23, 1989, p.146 (1989).
27. Administrative Detention Appeal [A.D.A.] 10/94 Anonymous v. Minister of Defence, 53(1) P.D. 97 (13 November 1997).
28. See Cr.F.H 7048/97, Anonymous v. Minister of Defence, 54(1) P.D. 721. See Emanuel Gross, ‘Human Rights, Terrorism and the Problem of Administrative Detention in Israel: Does a Democracy Have the Right to Hold Terrorists as Bargaining Chips?’, Ariz. J. Int'l & Comp. L., Vol. 18 (2001), p. 721.
29. See H.C. 5100/94 Public Committee against Torture in Israel v. Government of Israel, P.D. 53(4) 817 (9 September 1999); available on the Israeli Supreme Court website.
30. The continued detention of some of the so-called ‘bargaining chips’ was authorized by the Knesset in the Statute for the Detention of Illegal Combatants, 5762-2002; an appeal by one of the Lebanese detainees was rejected by Supreme Court president, Barak, who refused to rule on the constitutionality of the new statute. See H.C. 2055/02 Sheik Obeid v. Minister of Defence. Obeid was released in January 2004 as part of an Israeli–Hezbollah swap. The Israeli government did not ask the Knesset to permit ‘special interrogation methods’ in the General Security Services Act, 5762-2002; human rights organizations maintain that the GSO have developed and implemented tortuous techniques replacing those banned by the Supreme Court.
31. See Melissa L. Clark, ‘Israel's High Court of Justice Ruling on the General Security Service use of “Moderate Physical Pressure”: and End to the Sanctioned use of the Torture?’, Ind. Int'l & Comp. L. Rev., Vol. 11 (2000), p. 145; Emanuel Gross, ‘Human Rights, Terrorist and the Problem of Administrative Detention in Israel: Does A Democracy have the Right to Hold Terrorists as Bargaining Chips?’, Ariz. J. Int'l & Comp. L., Vol. 18 (2001), p.721; John T. Parry and Welsh S. White, ‘Interrogating Suspected Terrorists: Should Torture be an Option?’, U. Pitt. L. Rev., Vol. 63 (2002), p. 743; Emanuel Gross, ‘Symposium Terrorism and the Law: Democracy in the War Against Terrorism—The Israeli Experience’, Loy. L.A.L. Rev., Vol. 35 (2002), pp. 1161, 1193; Stephen J. Schulhofer, ‘Checks and Balances in Wartime: American, British and Israeli Experiences’, Mich. L. Rev., Vol. 102 (2004), p. 1906; Oren Gross, ‘Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience’, Minn. L. Rev ., Vol. 88, 2004, p.1481.
32. The precise number of Palestinian casualties is a matter of dispute. See, for example, http://en.wikipedia.org/wiki/Second_Intifada.
33. As the events have become highly contested, I rely here on the UN Report on the Incident in Jenin, available at www.jewishvirtuallibrary.org/jsource/UN/jenin.html. According to the UN report the effects of Israeli incursions from 1 March to 7 May 2002 were harsh: almost 500 Palestinians were killed and 1450 wounded; round-the-clock curfews affected an estimated 1 million persons; over 2800 refugee housing units were damaged and 878 homes were demolished or destroyed during that period, leaving more than 17,000 people homeless or in need of shelter rehabilitation.
34. Clearly there was no massacre, but there was great destruction. The UN report claims at least 52 Palestinians, up to half of whom may have been civilians, and 23 Israeli soldiers were dead; many more were injured; houses were destroyed and 450 families made homeless.
35. H.C.J. 2936/02 Physicians for Human Rights v. Commander of IDF Forces in the West Bank, 56 P.D.(3) 3 (8 April 2004), www.phr.org.il/phr/.
36. H.C.J. 2977/02 Adalah—Legal Centre for Arab Minority Rights in Israel v. Commander of IDF Forces in Judea and Samaria, 56 P.D.(3) 6 (10 April 2002) www.adalah.org/ara/index.php.
37. H.C.J. 3022/02 Kanoun (Law)—Palestinian Organization for the Protection of Human Rights and the Environment v. Commander of IDF Forces in the West Bank, 56 P.D.(3) 9 (10 April 2002) (per Justice Dorner for the court).
38. See Physicians for Human Rights, p. 4. Justice Dorner adds that this commitment of the IDF must be presented repeatedly before the troops to the level of the individual soldier in the field, together with the provision of concrete instructions that will prevent, to the extent possible even in tough situations, actions incompatible with the rules of humanitarian assistance. The IDF made similar statements in the other two petitions mentioned above.
39. H.C.J. 3114/02 Knesset Member Mohammad Barakeh v. Minister of Defence, 56 P.D.(3) 11 (14 April 2002)(additional petitioners were Knesset Member Ahmad Tibi, and Palestinian public interest groups; a group of Israeli reservist servicemen who fought in Jenin asked to join the cases as respondents; their request was denied).
40. H.C.J. 3114/02 Knesset Member Mohammad Barakeh v. Minister of Defence, p. 15 (per court president Barak).
41. H.C.J. 3114/02 Knesset Member Mohammad Barakeh v. Minister of Defence, p. 15 (per court president Barak).
42. H.C.J. 3114/02 Knesset Member Mohammad Barakeh v. Minister of Defence, p. 16 (per court president Barak).
43. ‘In the case before us it was not argued before us that the arrangement we have reached threatens our soldiers … On the contrary, the arrangement we have reaches is one that all sides are interested in’. H.C.J. 3114/02 Knesset Member Mohammad Barakeh v. Minister of Defence, p. 16 (per court president Barak).
44. For the entire decision see: H.C.J. 316/03 Muhammad Bakri v. Israel Film Council, 58 P.D. (1) 249; available on the Israeli Supreme Court website.
45. For instance, that medication should be supplied to the clergy by the IDF. H.C.J. 3436/02 La Custodia Internazionale di Terra Santa v. Government of Israel, 56 P.D. (3) 22, 24 (24 April 2002).
46. See La Custodia Internazionale di Terra Santa v. Government of Israel, pp. 24–25 (per Justice Strassberg-Cohen, for the court).
47. The first petitioner was the Palestinian governor of Bethlehem, who was himself inside the compound then under siege. H.C.J. 3451/02 Muhammad Almadani v. Minister of Defence, 56 P.D. 30 (2 May 2002).
48. Muhammad Almadani v. Minister of Defence, p. 34 (per court president Barak).
49. Muhammad Almadani v. Minister of Defence, p. 35 (per court president Barak).
50. For details see Alan Cowell, ‘Mideast Turmoil: The Overview; Exile Agreement Appears to Settle Bethlehem Siege’, New York Times, 5 September 2002
51. H.C.J. 3900/02 Terror Victim Headquarters v. Ariel Sharon (8 May 2002).
52. H.C.J. 10223/02 Fish-Lifschitz v. Attorney General, 56 P.D.(6) 517; the two petitioners lost their husbands, whose car was ambushed. In December 2002, months after the siege in Bethlehem had ended, Israeli security forces concluded that several of the militants in the church were responsible for the attack on petitioners and their husbands. Hence this petition.
53. Fish-Lifschitz v. Attorney General, pp. 519–520. Note that the court did not use justiciability of international agreements as a reason for the rejection of the petition.
54. H.C.J. 3239/02 Iad Ashak Mahmud Marab v. IDF Commander in the West Bank, 57 P.D. (2) 349. Available on the Israeli Supreme Court website.
55. See president Barak's opinion, sections 19–23.
56. President Barak, ibid. at section 31 (judicial review can be delayed until after the detainees have been removed from the battlefield and an initial investigation had been conducted).
57. President Barak, ibid. at section 34.
58. The court also held that this nullification would only go into force after six months, allowing the military to reorganize. See president Barak, ibid. at sections 35–36.
59. See president Barak, Ibid. at section 43.
60. The court notes that while detainees were not allowed to meet lawyers, they ‘have the right to be visited by the Red Cross, and their families are informed of their whereabouts. At any time, they may appeal to the High Court of Justice in a petition against their detention’. See president Barak, ibid. at sections 44–46.
61. President Barak, ibid. at sections 47–49. Here too, the court suspends its declaration that parts of the Orders are void for six months, to allow the military to reorganize according to international and Israeli law.
62. See H.C.J. 4764/04 Physicians for Human Rights v. Commander of the IDF Forces in the Gaza Strip, 58 P.D. (5) 385 (30 May 2004) petition was submitted 20 May; available on the Israeli Supreme Court website.
63. President Barak explained that the court does not review the actual decision to take military action, but rather the legality of the military operations taken. See president Barak, ibid. at section 17.
64. See president Barak, ibid. at section 16.
65. Ibid. at section 13.
66. Ibid., at sections 40–45.
67. Ibid., at sections 52–53.
68. Ibid., at section 66.
69. See detailed description in H.C.J. 2056/04 Beit Sourik Village Council v. Government of Israel; president Barak's opinion, sections 1–8.
71. See, www.mfa.gov.il/MFA/About + the + Ministry/MFA + Spokesman/2004/Amb. + Gillerman+- + Dark + day + for + ICJ + 9-July-2004.htm; www.mfa.gov.il/MFA/About + the + Ministry/MFA + Spokesman/2004/Statement + on + ICJ + Advisory +Opinion + 9-July-2004.htm.
72. Villagers will also lose access roads to urban centres required for work, medical attention, education and other services. See petition described in section 9 of president Barak's opinion in Beit Sourik.
73. The Israeli government did finally agree to some changes in the route of the fence. See, in greater detail, Beit Sourik, sections 16–17.
74. See Beit Sourik sections 23-24.
75. See Beit Sourik section 27.
76. See Beit Sourik sections 28–31.
77. Only a small number of military orders were approved by the court. See Beit Sourik, sections 50, 63–67.
78. See Beit Sourik section 86.
79. In H.C.J. 1890/03 Bethlehem Municipality v. State of Israel—Ministry of Defence, 2 June 2004.
80. In H.C.J. 5784/03 Louie Salama v. IDF Commander in Judea and Samaria, 11 August 2003.
81. See, for example, H.C.J. 2117/02 Physicians for Human Rights v. IDF Commander in the West Bank, 56 P.D.(3) 26 (28 April 2002; claims that the IDF shot at medical personnel); H.C.J. 727/02 02 Physicians for Human Rights v. IDF Commander in the Gaza Strip, 56 P.D. (3) 39, 2 May 2002.
82. Susan M. Akramm Terry Rempel, ‘Temporary Protection as an Instrument for Implementing the Right of Return for Palestinian Refugees’, B. U. Int'l. L. J., Vol. 22 (2004), pp. 1, 49–52.
83. In two complicated recent cases the Supreme Court addressed delicate issues concerning the pensions to which the dependants of deceased soldiers are eligible. See H.C.J. 585/01 Klachman v. Chief of Staff, 58 P.D.(1) 694 (1 December 2003); H.C.J. 6758/01 Lifschitz v. Minister of Defence (21 January 2005).
84. In one such case the court reversed the IDF Judge Advocate General's decision to dismiss charges of sexual misconduct. See H.C.J. 4869/01 Anonymous v. Judge Advocate General, 56 P.D. (3) 944 (14 April 2002).