A land of milk, honey -and the rule of law

National Post ^ | May 10 2008 | David Asper

[knighthawk]

In all the commentary on Israel's 60th anniversary that has appeared on these pages over the last week, little has been said about what may be the most remarkable and important attribute of the Jewish state: the rule of law.

Noting, as so many have, that Israel is a democracy in a region awash with totalitarianism is important, but that broad concept has many specific attributes. At the core of democracy is a method by which undemocratic or illegal behaviour by government can be challenged by citizens. If such challenges are successful, government must then be bound to change its ways. Israel is a country in which this is so.

While much of the attention given to Israel focuses on its armed conflict with terrorists and neighbouring terrorist states, it would be useful for observers to spend a bit of time looking at judgments of the Israeli Supreme Court. While less dramatic than footage of combat and carnage, they provide an interesting perspective that engages almost every aspect of the Arab/Israeli dispute.

Rather than casting the propaganda-maligned "big bad Israel" against poor "refugees," or murderous Islamist terrorists against innocent victims (as those tags are used), instead, courts in Israel deal with the conflict according to constitutional and human rights law. The law in Israel is firmly focused around the concept of human dignity in perhaps as contextually meaningful a practical form as exists on Earth.

The Israeli Supreme Court is open to Palestinians to challenge actions taken by the Israeli government in pursuit of its legitimate security objectives. Thus, it has considered cases brought by Palestinians involving demolition of homes from whence terrorists launched their attacks against Israel; the legitimacy of the security fence and the path chosen in its construction; restrictions on Palestinian family reunification; conditions of detention; targeted killings; and torture methods employed in the course of interrogation, to cite a few examples.

Far from being a rubber stamp for the Israeli government, the Supreme Court has intervened on many occasions and declared numerous actions taken under the guise of security to be either wholly illegal or disproportionate to the outcome sought. As a result, the Israeli government has had to change its policies many times, for the benefit of its enemies.

For example, in a case brought by villagers in the Palestinian area known as Beit Sourik, the court heard from farmers about the severe consequences the security fence would have on their ability to maintain their livelihoods. For all that stuff we saw on television when the fence went up, about apartheid walls and such, did anyone notice that those affected actually had the right of access to the Israeli courts and availed themselves of it? How much reportage was devoted to the fact that the route of the fence was modified several times as the result of judicial intervention for the benefit of West Bank Palestinians?

Is it ever reported or noted by Palestinian sympathizers that prior to demolishing a terrorist's home, an administrative order for destruction must be issued by the military commander in the area and advance notice provided to those affected; or that such orders are justiciable and have been challenged by Palestinians in the Israeli courts? All too often, we see vivid images of a home being destroyed, but nothing of the due process that led up to it.

When was the last time you heard a news report telling you that in spite of the fact Israel is in a near perpetual state of war and literally fighting for its very survival, nevertheless, in the conduct of its self-defence operations, Palestinians outside Israel's formal boundaries have the de facto benefit of Israeli constitutional law? This is because the Supreme Court has held that Israeli soldiers, even in the midst of forward military operations, must themselves abide by Israeli constitutional law as it pertains to Jewish values and principles underlying human dignity.

Aharon Barak, a former president of the Israeli Supreme Court, repeatedly noted that the guns of war should never silence the law -- and in fact, wrote many judgments asserting that the war on terrorism must be fought with law as much, if not more, than by military means.

Understanding the application of the rule of law and legal process in Israel paints a detailed picture of a humane and rights-based society. Given the context -- one in which the country is surrounded by governments sworn to its extinction, such that a survival instinct could easily (and perhaps justifiably) overcome rationality -- surely the evolution of the Israeli legal system is something worth noting as Israel celebrates its 60th year.

[knighthawk]

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