In this thesis I focus on legal complications of fighting terrorism. Democracies are faced with a threat that fights outside the laws. Imposing restrictions on liberties and rights in order to constrain the threat may be argued necessary; nonetheless it challenges one of the pillars of democracy itself: the rights and liberties of the individual.
The state of Israel has, as occupant of the Palestinian Territories since 1967, faced international – and domestic – criticism concerning the rights of the Palestinians. The Supreme Court of Israel (ISC), sitting as the High Court of Justice (HCJ), has by its judicial annexation of the Palestinian Territories faced the dilemma of the competing values of Israeli security and Palestinian human rights for decades. The recently retired President of the ISC (September 7, 2006), Aharon Barak describe that:“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.”
Critics of the HCJ like the Israeli sociology professor Baruch Kimmerling claims that the laws are not equal to everyone. Liberal rhetoric in rulings and statements give the impression of legal equality but do not create precedence and are often so vague that the initial problem is not actually solved. Kimmerling is by no means moderate in his article “Jurisdiction in an Immigrant-Settler Society” which “will demonstrate that the practices of the Israeli HCJ generate a façade of legitimacy to the Israeli state’s internal and external colonization and territorial expansion efforts.”
Aharon Barak pointed out above that the ISC needs to ensure that the state of Israel is respecting the rule of law also in times of conflict. The dilemma of Israeli security and preservation of Palestinian rights is often exaggeratedly viewed as a zero-sum game by both parties: Neither interest can be satisfactory fulfilled without reducing the others. Without a matrix of control over the occupied Palestinian territories (OPT) the frequency of terrorist attacks would definitely increase in lack of a complete political solution. At the same time, the matrix of control is splitting the West Bank up in Bantustans, hindering free movement of the individual, choking the Palestinian economy and in lead to hardship in the life of the Palestinians which again fuel the conflict.
Additionally, the conflict has been viewed as a typical territorial conflict: Neither parts have alternative homelands and is frequently referred to by both parties as a conflict of existence. After the breakout of the second Palestinian intifada , the wave of terrorist attacks gained political and public support to the old plans of building a separation barrier to separate Israelis and Palestinians. The Israeli professor Ronen Shamir stress that a Court’s impartiality is a prerequisite if they are to play a legitimizing role. Studies suggest that courts systematically support and uphold state-sponsored policies. Shamir claims that analysis of cases where the HCJ ruled to defend Palestinian’s and Israeli Arab’s human rights did not lead to similar results in subsequent cases and the significance of the cases was exaggerated, allowing them to appear as symbols of justice. The ISC enjoys a special position in Israeli in the public opinion and in the political system of Israel, which enables it to be a possible unique actor in terms of reducing tension between Israelis and Palestinians.
The initial question would be if it manages, or even has the possibility, to be truly impartial as an integrated part of the Israeli state. This thesis addresses implications of exercising judicial review over the military authorities’ actions in an occupied territory, being the sole guarantee of the individual rights of the conflicting party.
Following the liberal rhetoric of the Aharon Barak and the criticism from scholars, organizations and others I would like to do an analysis of the ISC, sitting as High Court of Justice, ruling of 30th of June 2004; HCJ 2056/04 – Beit Sourik Village Council v. 1.The Government of Israel and 2.Commander of the IDF Forces in the West Bank. The ruling was made 10 days prior to the advisory ruling on the security fence made by the International Court of Justice in Hague and got a lot of attention. It appeared to be a “landmark case” ruling against the legality of the orders of taking possessions of land north-east of Jerusalem and to erect a separation fence on the land. The Beit Sourik ruling was the first ruling where the HCJ extensively reviewed the legality of the separation barrier and its route. In light of the criticism of the Supreme Court cited above, I will do an critical review of the HCJ 2056/04 ruling as it is stated in the Piskei Din (decision).