Judgments of the Israel Supreme Court: Fighting Terrorism within the Law Contents Introduction 5 The Supreme Court and the Problem of Terrorism 9 by Aharon Barak, President of the Israel Supreme Court The GSS's Methods of Interrogation 23 HCJ 5100/94 Public Committee Against Torture in Israel 25 v. The State of Israel House Demolitions 59 HCJ 2006/97 Janimat v. OC Central Command 61 Warfare and Humanitarian Matters 66 HCJ 2936/02 Physicians for Human Rights v. The Commander of 68 IDF Forces in the West Bank HCJ 3114/02 Barakeh v. The Minister of Defense 71 HCJ 3451/02 Almandi v. The Minister of Defense 78 Detention 86 HCJ 3278/02 The Center for the Defense of the Individual 90 v. The Commander of IDF Forces in the West Bank HCJ 3239/02 Marab v. The Commander of IDF Forces 108 in the West Bank Assigned Residence 142 HCJ 7015/02 Ajuri v. The Commander of IDF Forces 144 in the West Bank Recent Important Judgments: IDF Operations in Rafah; 179 Israel's Security Fence HCJ 4764/04 Physicians for Human Rights v. The Commander of 182 IDF Forces in the Gaza Strip [The Rafah Case] HCJ 2056/04 Beit Sourik Village Council v. The Government 208 of Israel [The Fence Case] of Interrogation IntroductionIntroduction The terrible events of September 11, 2001 highlighted the dangers of terrorism with painful clarity. They sparked a declaration of war on terrorists and the conditions that allow them to flourish. Though the fight against terrorism is not new, it has turned into a proactive international effort without precedent. There exists a consensus on the need to fight terror, but there is still much controversy regarding the best way to conduct this war. This is no surprise since the price of war is high. Fighting against terrorism in an effective manner entails finding the right balance between security and public interests, on one hand, and the need to safeguard human rights and basic freedoms, on the other. This is a very complex process. Unfortunately, this dilemma is not new to the Israeli legal system. Since its birth, the State of Israel has been the target of significant threats to its existence which have been manifested in many ways, including terrorism. In this sense the Israeli experience in the legal-judicial field, as well as other fields, is relevant to all those interested in the war on terrorism. The citizens of Israel have had to live for many years with the reality of suicide terrorism, where bombers blow themselves up in city centers, to an intensity and frequency unprecedented elsewhere around the world. The immediate challenge faced by Israel’s security system is, on one hand, the urgent need to act in order to halt the attacks, this being part of the basic responsibility of every state to ensure the security of its citizens. On the other hand, the state must carry out these operations pursuant to the law and within the framework of the rule of law in a democratic state. The goal of this booklet is to present examples of how the Israeli Supreme Court has dealt with this dilemma. The booklet presents judgments in which the Supreme Court was required to balance security needs and the public interest of fighting terrorism against human rights, humanitarian obligations 5 and other important values. The Court’s approach to such cases sheds light on dispute brought before it. It has the discretion to establish locus standi (who the dilemmas involved in finding this balance. Should the Court even descend has the right initiate a proceeding) and to decide whether a dispute is to the level of such conflicts and address these types of questions? The justiciable (if it is an appropriate case for the Court to address). Over the years fundamental answer of the Israeli legal system is “yes.” the Court has demonstrated a flexible approach regarding locus standi and justiciable doctrines. It has been willing to hear petitions brought by public Supreme Court President Aharon Barak expressed this succinctly when he organizations with no personal interests in the dispute which clearly set out ruled that the war on terror should not be waged outside of the law, but rather the principle issues of the dispute. The Court has also frequently shown within the framework of the law and using the means that the law affords the readiness to adjudicate military and security cases. This flexibility is at the security forces. This is the analytical basis of the Israeli judicial experience of basis of the numerous judicial decisions of the Court centering on the war on the war on terror, several expressions of which are found in this booklet. This terror. basis is explained in an article (following this introduction) written by President Barak which deals with the Supreme Court and the problem of The High Court of Justice is ever busy adjudicating petitions lodged terrorism. Several judgments handed down by the Supreme Court which against public bodies operating in the State of Israel. But it also hears petitions demonstrate the practical application of this concept follow. In all of these brought by residents of the West Bank and Gaza Strip against the activities of judgments the Supreme Court had to find a balance between the security the Israel Defense Forces and other security bodies in these areas, as well as needs in Israel, the West Bank and Gaza Strip, the human rights of those petitions brought by public organizations (with no personal interests) against suspected of terrorist activities and the human rights and interests of the these operations. Its authority to preside over these cases stems from the view civilian population. that the security forces operating in the West Bank and Gaza Strip are also public bodies which are subject to the law. This policy, which was crystallized Each judgment presented in this booklet is preceded by an introduction after the Six Day War of 1967, allows Palestinian residents to petition the explaining the context in which the judgment was handed down and its Israeli Supreme Court and subjects the operations of Israel in the territories to principle points. judicial review. Most of the judgments presented in this booklet are an expression of this judicial review. Before moving on to the judgments we must first briefly explain the essential character of the judicial review exercised by the Israeli Supreme Court over the activities of the security forces fighting terrorism. All the judgments brought in this booklet were handed down by the High Court of Justice. The High Court of Justice is one of the forms assumed by the Israeli Supreme Court. It reviews the activities of public authorities, including the security forces, to ensure they are in line with the law (see section 15(4)(2) of the Basic Law: The Judiciary). This judicial review is exercised as the first instance. This means that the High Court of Justice is the first court to address the case and it is not a court of appeal. It is also the last instance. There is no appeal on its rulings since it is the Supreme Court, the highest in the land. In general the panel is composed of three justices, but for petitions of particular importance a larger panel of an odd number of justices may preside (to date, up to 15). The High Court of Justice need not adjudicate every 6 7 The Supreme Court and the Problem of Terrorism* by Aharon Barak President of the Israel Supreme Court A. Terrorism and Democracy Terrorism plagues many countries. The United States realized its devastating power on September 11, 2001. Other countries, such as Israel, have suffered from terrorism for a long time. [FN1] While terrorism poses difficult questions for every country, it poses especially challenging questions for democratic countries, because not every effective means is a legal means. I discussed this in one case, in which our Court held that violent interrogation of a suspected terrorist is not lawful, even if doing so may save human life by preventing impending terrorist acts: We are aware that this decision does not make it easier to deal with that reality. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties. [FN2] Terrorism creates much tension between the essential components of democracy. One pillar of democracy—the rule of the people through its elected representatives—may encourage taking all steps effective in fighting terrorism, even if they are harmful to human rights. The other pillar of democracy—human rights—may encourage protecting the rights of every individual, including the terrorists, even at the cost of undermining the fight against terrorism. Struggling with this tension is primarily the task of the legislature and the executive, which are accountable to the people. But true * from Foreword: A Judge on Judging - The Role of a Supreme Court in a Democracy by Aharon Barak - President of the Israel Supreme Court. Originally printed in Harvard Law Review, November, 2002. 8 9 democratic accountability cannot be satisfied by the judgment of the people the Court for all time has validated the principle of racial discrimination in criminal alone. The legislature must also justify its decisions to judges, who are procedure and of transplanting American citizens.