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Human rights in times of terror – a judicial point of view

Published online by Cambridge University Press:  02 January 2018

Aharon Barak
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Abstract

This paper, delivered as the Second Scarman lecture, argues that the role of a judge on the Supreme Court of a democratic state is to protect both the constitution and the democracy. Judges in modern democracies should protect democracy both from terrorism and from the means the state wishes to use to fight terrorism. Judges meet their supreme test when they face situations of war and terrorism. The protection of human rights of every individual is a duty much more formidable in situations of war or terrorism than in times of peace and security. But if judges fail in their role in times of war and terrorism, they will be unable to fulfil their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace. The paper explores these issues through an examination of the need for a balanced and proportionate approach and by using illustrations from the example of the Israeli Supreme Court, with a focus on the role of judicial review in the ‘war on terror’.

Type
Research Article
Information
Legal Studies , Volume 28 , Issue 4 , December 2008 , pp. 493 - 505
Copyright
Copyright © Society of Legal Scholars 2008

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References

1. For a comprehensive analysis of my thesis, see Barak, A The Judge in a Democracy (Princeton, NJ: Princeton University Press, 2006) p 20.Google Scholar

2. See generally Cappelletti, M Judicial Review in the Contemporary World (Indianapolis, IN: Bobbs-Merrill, 1971) p 45 Google Scholar; M Angel ‘Constitutional Judicial Review of Legislation: A Comparative Law Symposium’ (1983) 56 TEMP LQ 287.

3. HC 5364/94, Velner v Chairman of the Israeli Labor Party 49(1) PD 758 at 808 (internal citations omitted).

4. See Korematsu v United States 323 US 214 at 245–46 (1944) (Jackson J dissenting): ‘[A] judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty…A military order, however unconstitutional, is not apt to last longer than the military emergency…But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need…A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image’. See Patricia Hughes ‘Judicial Independence: Contemporary Pressures and Appropriate Responses’ (2001) 80 Can B Rev 181 at 186 (noting the general agreement that ‘judicial independence is both an individual and a systemic, institutional or ‘collective’ quality’).

5. HCJ 7052/03, Adalah v The Minister of Interior (2006) Israel Law Reports 34–35, forthcoming.

6. In contemporary Germany, the militant democracy (streitbare Demokratie) is one of the foundations of the constitutional structure. See Currie, Dp The Constitution of the Federal Republic of Germany (Chicago, IL: University of Chicago Press, 1994) p 213 Google Scholar; . See also

7. Cicero, [NH Watts (trans)]Pro Milone (Cambridge, MA: Harvard University Press, 5th edn, 1972) p 16.Google Scholar

8. See Re Application Under S 83.28 of the Criminal Code [2004] 2 SCR 248 at 260: ‘While Cicero long ago wrote “inter arma silen legas” we, like others, must strongly disagree’ (Iacobucci and Arbour JJ). But cf WH Rehnquist All the Laws But One: Civil Liberties in Wartime (Vintage, 1998) p 224.

9. Steyn, J Guantanamo Bay: the Legal Black Hole’ (2004) 53(1) International and Comparative Law Quarterly 1.CrossRefGoogle Scholar

10. See Hongju Koh, H The Spirit of the Laws’ (2002) (43 Harv Int'l LJ 23 Google Scholar: ‘In the days since, I have been struck by how many Americans – and how many lawyers – seem to have concluded that, somehow, the destruction of four planes and three buildings has taken us back to a state of nature in which there are no laws or rules. In fact, over the years, we have developed an elaborate system of domestic and international laws, institutions, regimes, and decision-making procedures precisely so that they will be consulted and obeyed, not ignored, at a time like this’.

11. HC 2161/96, Rabbi Said Sharif v Military Commander 50(4) PD 485 at 491.

12. See EA 2/84, Neiman v Chairman of Cent Elections Comm for Eleventh Knesset, 39(2) PD 225 at 310; cf Terminiello v Chicago 337 US 1 at 37 (1949) (Jackson J dissenting).

13. Neiman, above n 12, at 310. The judgment cited is Terminiello, ibid (Jackson J dissenting).

14. Adalah, above n 5, at 33–34.

15. See HC 428/86, Barzilai v Gov't of Israel 40(3) PD 505 at 585 (Barak J dissenting).

16. HCJ 8276/05, Adalah – The Legal Center for Arab Minority Rights in Israel v The Minister of Defense (unpublished, para 30 of my judgment).

17. HC 5100/94, Pub Comm Against Torture in Israel v Gov't of Israel 53(4) PD 817 at 845.

18. Adalah, above n 5, at 93–94.

19. See Judgments of the Israel Supreme Court: Fighting terrorism within the law, vols 1 and 2 (Israel Supreme Court, 2004 and 2006).

20. See Ressler v Minister of Defence 42(2) PD 441 at 458.

21. Ibid.

22. See HC 3239/02, Maraab v Commander in Judea and Samaria 57(2) PD 349.

23. See HC 3278/02, The Center for Defense of the Individual Founded by Dr Lotta Salzberger v IDF Commander in the W Bank, 57(1) PD 385; HC 5591/02, Yassin v Commander of Kziot Military Camp 57(1) PD 403; HC 253/88, Sajadia v Minister of Def 42(3) PD 801.

24. Maarab, above n 22, at 377 (the right to legal representation). See Public Comm Against Torture in Israel, above n 17 (means of interrogation).

25. The Israeli Supreme Court's general approach is that in cases of serious violation of the rule of law, everyone in Israel has standing. For an analysis of this approach, see Barak, above n 2, at p 190.

26. HCJ 7957/04, Maraabe v the Prime Minister of Israel (2005, forthcoming) para 56 to my judgment.

27. Pub Comm Against Torture in Israel, above n 17.

28. Chevron USA, Inc v Natural Resources Defense Council, Inc 467 US 837 (1984).

29. HCJ 2056/04, Beit Sourik Village Council v The Government of Israel (2005) PD 58(5) 845.

30. Brennan, Wj Jr, ‘The Quest to Develop a Jurisprudence of Civil Liberties in Time of Security Crises’ (1988) 18 Isr Yearbook Hum Rts 11 Google Scholar at 19.

31. See HC 4054/95, Pub Comm'n Against Torture in Israel v Gov't of Israel 43(4) PD 817.

32. In Secretary of State for the Home Department v Rehman [2001] UKHL 47, WL 1135176 (11 October 2001, HL (UK)), Lord Hoffmann noted that ‘the judicial arm of government [needs] to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security’. I hope the meaning of these comments is limited to the general principle that a court determines not the means of fighting terrorism but rather the lawfulness of the means employed.

33. HC 7015/02, Ajuri v IDF Commander in the W Bank 56(6) PD 352 at 375–376.

34. Barzilai, above n 15 (citation omitted).

35. Pub Comm'n Against Torture in Israel, above n 31, at 845.