Sunday, April 19, 2009

The Israeli Supreme Court

Israeli Supreme Court President, Dorit Beinisch, gave a talk at Princeton recently on the challenges that face the Israeli Supreme Court.

Media that covered the talk focused on how the judge commented that international law was not properly equipped to fight terror. This problem stems from two major issues. First, there is a lack of an internationally accepted legal definition of terror. Treaties such as the UN International Convention for the Suppression of the Financing of terror does make reference to any "...act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act." This language, however, does not constitute a definitive definition of terror (certainly there are circumstances that do not fit within this definition that could be called terrorism) and not all countries have signed on to such a definition.

A second reason that international law is not yet prepared to deal with terrorism is that much of international law is aimed at state actors not at non-state terrorist groups. Terrorists that do not wear uniforms, that are from non-state organizations or are from territories that are not signatories to international treaties cannot be prosecuted under the regime created by these treaties. Take, for example, the Rome Statute which creates the International Criminal Court (ICC.) To be prosecuted by the ICC one of three conditions need to be met:
"--The accused is a national of a State Party or a State otherwise accepting the
jurisdiction of the Court;
--The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
--The United Nations Security Council has referred the situation to the
Prosecutor, irrespective of the nationality of the accused or the location of
the crime."

What this means is that members of a group like Hamas, for example, which is not a state at all, which is not on territory accepting jurisdiction of the court (even if one accepts that Gaza is occupied by Israel, it makes no difference as Israel does not accept jurisdiction of the ICC,) and which has not been referred by the UN, will not be subject to the jurisdiction of the court.

The Israeli Supreme Court's solution to this gap in the law, according to Beinisch, is to take the existing international legal framework on international human rights law--which, as it is written is generally intended to apply to conflict between states--and interpret it so that the general principles, the so called spirit of the law--is still applied in the war on terror. Beinisch in her comments (all 82 minutes of which can be viewed here) highlights a few examples of how the Israeli Supreme Court has conducted such interpretations. The examples she provides are ripped from some of the most controversial headlines in Israel: the questions surrounding targeted killings of terrorists, administrative detention of combatants, the security fence and the most recent military operation in Gaza.

The whole 82 minutes are worth watching for anyone interested in the Israeli supreme court. It not only discusses these interesting and controversial issues, but also explains the uniqueness of the Israeli Supreme Court (for example, it has jurisdiction by right, meaning all petitions before it have a right to be heard, a fact which results in over 5,000 cases per year and that when a petition relates to human rights before the Court is is always justiceable) and the Israeli procedure for judicial appointment.

The short guide to the video is as follows:

At or about 24:30 the discussion that international law does not work properly when applied to terrorism, begins. The first example presented at about 26:00 is the case of targeted killings and that the court reviews these on a case by case basis. Four criteria must be met. There must be strong evidence of the persons active involvement in terrorism and that removing them could save lives; there must be no other less harmful options available; every effort must be made to reduce harm to innocent civilians and an after-the-fact independent investigation must take place each time.

At about 30:30 there is a discussion of administrative detentions.

At about 40:50 there is a discussion of the security barrier. It is explained (43:50) how the test used in determining the legality of the fence is the proportionality principle and it was found that the lives that could be (and actually have been) saved by the fence outweighed the inconveniences to some. At 46:30 or so it is explained how the Court examines each and every section of the fence to be constructed and that security experts are required to explain why the fence is built the way it is every step of the way.

From about 50:00 to her conclusion (at around 58:40) the speaker describes some of the questions that the court faced surrounding the most recent operation in Gaza. These include questions of supplying Gaza (the duty to supply was upheld 56:10.)

The most interesting thing to take from the judge's talk is that one gets the sense that the "terrorism" related issues faced by those on the bench of the Israeli Supreme Court are more than merely academic. In Canada, when the Supreme Court rules on certain rights for people convicted of various crimes, the judges themselves are not necessarily directly impacted, on a daily basis, by their decisions. In Israel--and Beinisch refers to this when discussing the security barrier--the decisions on terrorism made by these judges literally affects their lives and the lives of people they know on a daily basis. Nonetheless, these judges have made rulings which, in some ways, hamstring the Israeli security apparatus and could, quite literally put the lives of their own acquaintances at risk.

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