More than a decade ago, Aharon Barak, President of the Israeli Supreme Court, illustrated just how far his judicial philosophy "everything is justiciable" extends by arguing that the Court even has the power to review troop movements in wartime. The Court’s recent decision ordering the Defense Ministry to redraw the lines of a 20-mile stretch of the security fence running north of Jerusalem suggests that Barak’s comment was no idle boast. In the midst of a war that has claimed the lives of over 1,000 Israeli civilians during the last three years, the Court felt free to substitute its own judgment concerning the proper location of the security fence for that of the defense establishment.
Critics of the judicial activism of the Israeli Supreme Court have focused on the manner in which the Court has usurped the function of the legislature in representative democracies to establish basic societal values.
Professor Shlomo Avineri, a former director-general of the Foreign Ministry and one of Israel’s leading political theorists, lamented in the July 7 Yediot Aharonot the anti-democratic nature of the process by which those ‘’on both the Right and the Left attempt to gain through the least democratic body in the state [i.e., the Supreme Court] that which the democratic majority of the nation and in the Knesset does not permit."
It would be hard to think of a more normative judgment than that posed by the security fence. The Supreme Court defined the issue as one of striking a balance between the security needs of Israeli citizens and the humanitarian "rights" of Palestinians who will be adversely affected by construction of the fence. The Court candidly admitted that greater sensitivity to the humanitarian needs of Palestinians might result in diminished security for Israeli citizens. In other words, greater accommodation of Palestinian needs will cost Jewish lives.
The names of the future Israeli victims may not be known, but they are not merely hypothetical constructs. The IDF would have been forbidden from destroying the house from which the terrorists who killed Tali Hatuel and her four daughters operated, that on the edge of Khan Yunis from which terrorists dug to place explosives under an army lookout tower in Gush Katif, and that used by the terrorists who killed five soldiers in the Philadelphia Corridor under the "proportionality" test enunciated by the Court, noted Ran Baretz in Maariv.
With what moral calipers does the Court profess to be able to measure such incommensurate values as that of Jewish lives versus Palestinian inconvenience to determine what security measures are proportionate? That determination is a pure value judgment, and in a democracy such choices, as Professor Avineri makes clear, should be made by the elected representatives of the people, not by a Court representing an extremely narrow strata of societal values.
Even on its own terms, the Court is ill-equipped to perform the balancing of security concerns with Palestinian inconvenience. As Court President Barak stressed in his opinion, the Court lacks security expertise. In other words, it cannot even assign a value to one side of the equation.
Not that Justice Barak seemed overly constrained by the court’s professed lack of expertise. The IDF argued that it was necessary to establish the security barrier at some distance between Highway 443 between Jerusalem and Modiin in order to prevent Palestinian snipers from shooting at motorists below, as has happened in the past. In another instance, the IDF stated that a certain location of the fence was impossible because the steepness of the grade leading to the fence would make it impossible to patrol. In both cases, however, the Court insisted, over the IDF’s objections, that alternatives are available.
Inconvenience to Palestinian landowners was placed by the Court in the framework of "humanitarian rights." So characterized, the Court showed little interest in determining the precise degree of the inconvenience or the adequacy of the IDF’s efforts to lessen Palestinian inconvenience. Thus Justice Barak wrote that it did not matter whether Palestinian residents of Beit Anan would be separated from 1,250 dunams, as the IDF claimed, or nearly five times that amount (6,000 dunams) as the Palestinians claimed. Either was too much. "Rights" are the Court’s trump cards.
No Israeli is surprised that last Friday’s decision by the International Court of Justice in the Hague failed to place the security fence in the context of the non-stop terrorist assault on Israeli civilians that led to construction of the security fence in the first place. But it is shocking that the Israeli Supreme Court felt so little need to evaluate Palestinian inconvenience in the light of the "inconvenience" caused to Israelis by the intifada.
Surely being blown up on a bus must rank as the ultimate "inconvenience". Indeed one such irreversible "inconvenience" outweighs thousands of smaller and reversible inconveniences. The omnipresent fear, the searching looks cast at all one’s fellow passengers on buses, the worry that accompanies any decision to send one’s children on public transportation – these too rank pretty high on the scale of inconvenience. So too the cost of billions of dollars to the Israeli economy from the Palestinian intifada.
Highway 443 was built at the cost of hundreds of millions of shekels to the Israeli taxpayer in order to relieve the congestion on the main Tel Aviv-Jerusalem Highway. But after a number of motorists were killed by terrorists in the early days of the intifada, Highway 443 nearly emptied of traffic. And morning traffic into Jerusalem still remains snarled to a near standstill for several hours each day. Surely these inconveniences also carry some weight. But they are absent from the Court’s decision.
Nor are the Palestinians exactly innocent bystanders, who bear no responsibility for the inconveniences that they now endure as a result of the last three years of warfare. Every Palestinian opinion poll shows large majorities in support of terrorist actions against Israelis, and the official Palestinian media continues to glorify suicide bombers.
No doubt Court President Aharon Barak is sincere when he writes that the principles of "law" embodied in the Court’s decision ultimately serve Israel’s long-term interests. Barak surely sought to take the wind out of the sails of the expected negative verdict of the ICJ on the security fence by demonstrating how solicitous the Israeli Supreme Court is to the "rights" of Palestinians, even at the risk of the lives of its own citizens.
But these considerations will be of scant solace to all those Jews who lose their lives because of the large delays in the completion of the fence caused by the pall the Court’s decision casts not only over the sections to be built but those already built.