Preliminary remarks on the court in an elections period:
There are many calls to reduce the influence of the judicial system, and terminology regarding the Court has become militant and belligerent. Criticism is legitimate; belligerent terminology should not be part of the discourse. Separation of powers involves checks and balances – not a war between the separate branches of power. Keywords should be independence, moderation, balance, neutrality, statesmanship, and attentiveness to towers. It is legitimate to criticize, and certainly reviews are in order. If something needs to be fixed – it should be. Israel’s judicial system does this. Israel’s judicial system is strong, apolitical, and driven by independent thinking. These are key principles – certainly in an election period.
The judicial system and national security:
Laws must not be suspended in war. Even in Israel’s perpetual existential threat – laws are always with us. Warfare with observance of the law defines Israel and the IDF (as opposed to its enemies). Moral ammunition is critical, i.e., observance of the law and human rights.
The IDF ethos is based on observance of the law and respect for human right. As Lt. Gen. Eisenkot emphasized, the military advocacy is a foundation of the IDF.
The Court fords not intervene in operational decisions, and does not come to replace decision makers or intervene in operational issues. Rather, its job is to ensure that security decisions fill the goals and ideals by which it is driven.
For example: instructions om firing at the Gaza border: the Court examined the issue in depth, understood that civilian demonstrations were taking place to be used as cover for terrorist activity, whereby terrorist activity is intermixed with a civilian population, This kind of mix places new challenges before Israel. Warfare and the observance of the law often challenge one another. Therefore the Court discussed the incremental use of force. There must always be a need, and proportionality.
Examples where the Court had clear guidelines in security issues: physical pressure in GSS interrogations; targeted assassinations; human shields.
Can the Court intervene in issues regarding the war on terror? There are arguments on both sides.
The rule of law and national security are mutually supportive. National security rests on the observance of the law and the respe ct for human rights; the law is a pillar if support for national security.
Israel is in a perpetual existential threat, but its understanding of the law and its basis for national security issues will be a hope for nations. So stated Justice Brennan at the Hebrew University over 30 years ago, and this has occurred.