Gabriella Blum Comments on the Role of the Judiciary in Israel in Counterterrorism

(Note from Ken: OJ has been very pleased to have Amos Guiora guest-blogging with us last week, offering a series of posts on the question of administrative detention in Israel, and how its legal and security system address the many complex questions raised.  I raised to Amos a question about the role of the judiciary in Israel in counterterrorism operations, administrative detention, and other activities by security forces, to which he responded at the bottom of this post. I put the same question to Gabriella Blum, professor at Harvard Law School, who writes back the following from Israel.  We are delighted to have Professor Blum’s comments, as well as those of Professor Guiora, on a question that is not entirely clear to non-Israelis, like me, who have never been or lived in Israel and have only passing acquaintance with its legal traditions, but which has considerable importance both for how Israel undertakes its security operations but – most interesting to me, at least, the extent and ways in which the United States can look comparatively at Israel in coming up with its own policies and institutions.  So, with our thanks, Professor Blum writes from Tel Aviv:)

The question of the comparative role of the judiciary in Israel and the United States is an important one with respect to counterterrorism. There are undoubtedly many similarities between the American and Israeli counterterrorism strategies, not least the determination by both countries that the fight against terrorism was a “war,” and not only in the colloquial sense.  Despite the common wisdom, the U.S. wasn’t the first to declare a “war on terrorism”; by the end of 2000, Israel had already determined that it was in an “armed conflict” with Palestinian terrorists, in light of the new scale and effect of hostilities. The novelty was the American determination that it was in a global war on terrorism.

The war paradigm is the ultimate source of contention between American and Israeli approaches to counterterrorism on the one hand, and European approaches on the other . Europeans believe that the threat of terrorism can and should be met through law-enforcement means, just like any other crime. Ken is correct in suggesting that a major reason for this difference is the fact that European experience with terrorism has been largely limited to home-grown terrorists and not foreign terrorists (notwithstanding Palestinian terrorism in Europe in the 1970s that was directed mostly at Israeli targets). Investigations, searches, arrests, and trials may be available and effective means to fight domestic terrorism. However, what it would mean for Israel to fight missile attacks from Gaza through law enforcement is unclear to me, unless Israel were to reinvade and reoccupy Gaza and deploy thousands of troops that would be able to conduct searches and make arrests.

From the war paradigm stem obvious further similarities between the Israeli and American experiences: the use of military force against terrorists and terrorist targets (including the acceptance of some civilian casualties as legitimate collateral damage), targeted killings, and long-term detention to suspected terrorists without trial. All of these practices have been employed, in one form or another and in some degree or another, by both countries, long before the “war on terrorism,” but they have become much more widespread, public, and contested in their current use.

There are also striking differences between the two countries’ experience, some that stem from objective differences in the types of war each fights and some that are related to the role of law – and of courts – in both societies. As for the type and context of war, first, the American war is more diffuse than then Israeli one. The American declaration of war was global, stripped of any geographical boundaries and focused upon actors. In a way the declaration called upon the enemy to declare itself, to show its true colors wherever it was. In the Administration’s eyes, the AUMF was sufficient authorization for the use of military force against suspected terrorists/enemies anywhere, anytime. The Israeli conflict, on the other hand, is largely confined to the territories of Israel, Gaza, and the West Bank though it is constantly fed resources from the Middle East and elsewhere. This fact is tied to the difference in the nature of the enemy in the two cases.  Al Qaeda is understood to be a geographically-dispersed network that is comprised of numerous semi-independent cells. By comparison, Palestinian armed groups are relatively well-defined, and although they have ties to and are reliant on external powers (Iran, Syria), they operate mostly from within the Palestinian territories.

Second, unlike the American war which began (or took a new form) on 9/11, the Israeli-Palestinian conflict is intertwined with a century-old national, ethnic, religious, and territorial conflict. In its more recent incarnation, it is tied to the occupation, since 1967, of Palestinian territories. The legal relevance of the ongoing, belligerent occupation is still debated; recall that the ICJ in its Advisory Opinion on the West Bank Barrier determined that a country did not have a right to self-defense against a threat emanating from an occupied territory, but this determination has been widely criticized by numerous governments (including the EU) and international lawyers. Regardless of its legal aspects, however, the ongoing occupation of Palestinian land and Israeli territorial ambitions in the West Bank is in the background of international reviews of Israeli counterterrorism practices, especially in Europe.

As Ken also notes, one other crucial difference to be taken into account is that of the involvement of domestic civilian populations in the two wars, and civilians in very close geographic proximity across territorial lines. Notably, ever since 9/11, American civilians have been spared from the war on terrorism – as indeed from the wars in Afghanistan and Iraq. Israelis are part of the war, in a direct, immediate and continuous manner. Whether from suicide bombings or rockets launched, no part of Israeli territory has been immune to attacks. The vulnerability of the civilian population in Israel places heightened pressure on the government to react with force to the terrorist threat. It also affects the public psyche in terms of its assessment of the threat and the place of the threat in Israeli daily life. One of my strongest memories returning to the U.S. in the summer of 2005 was going to Target and automatically opening my handbag to a man standing outside the store. The man was waiting very patiently for his wife to finish her shopping, and was quite confused at my gesture. In Israel, it would be unthinkable to walk into a shopping mall (or a university, or a theater, a café or any other public venue) without submitting your bags and sometimes your person to a security check.

The role of law, particularly international law, as well as the role of courts and judicial review has been fundamentally different in both countries. In the U.S., a country otherwise committed to an almost religious degree to the rule of law, legal constraints have been viewed by the former Administration as a threat to be reckoned with. The 2005 National Defense Strategy document warned that “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” Even though the American sense of hypocritical reliance on international law and the threat of manipulative lawfare by some actors has been shared by Israelis, it would have been unthinkable for an official Israeli document to group together international fora, judicial proceedings, and terrorism. Whereas the notorious OLC memos explained why domestic law was irrelevant and international law – inapplicable, thus creating a de facto “no-law zone,” the Israeli Attorney General’s position has been that although existing IHL is far from a perfect fit for the current war on terrorism, the fundamental principles of IHL are applicable mutatis mutandis (see the government’s response to the Targeted Killing petitions).

That the Israeli government was more hesitant about operating outside any legal framework was not, I think, a sign of any deeper inherent commitment to the rule of law than that of its American counterpart.  Rather, it was the cognizance of a singularly proactive Supreme Court, which has essentially made moot the common constitutional considerations of standing or justiciability. The staggeringly highly-divided SCOTUS’s jurisprudence on the war on terrorism has no cognate in the Israeli High Court of Justice review of the Israeli experience. This is in part due to the context of an ongoing belligerent occupation, which has made the HCJ more accustomed to intervening in national security matters.

But there is also a fundamental difference between the SCOTUS’s and the HCJ’s self-perception of their respective roles in their societies. Under the judicial presidency of Aharon Barak, the Israeli HCJ saw itself not just as a palace of justice, but also as a public educator, thus assuming a far more expansive stance on judicial review than that of its American or any other counterpart. Readers are probably familiar with the HCJ’s jurisprudence on torture in interrogations, targeted killings, or the detention of terror suspects. But the most telling example of the court’s power of intervention, in my mind, is that of a case from April 2002: Operation “Defensive Shield” was a military operation to resume control of earlier-evacuated Palestinian cities in the West Bank, following the deadliest month of Palestinian terrorism within Israel. The harshest battle took place in Jenin, ultimately claiming the lives of 23 Israeli soldiers and 53 Palestinians. While the fighting was still ongoing, Palestinian NGOs petitioned the Court to demand that ambulances be allowed to enter the city and evacuate the wounded. The Judges hearing the petition then established direct contact with Israeli military commanders in Jenin to ascertain the security situation and the limits and possibilities of allowing for medical evacuation from the city.

There are two remarkable features to this story.  One is that judges called military commanders in the midst of an ongoing battle. The other is that the commanders picked up the phone.  Subsequent HCJ rulings addressed the humanitarian situation in the city of Rafah (in Gaza) including access to food, water, electricity, and medical assistance, with the Court demanding institutional reforms in the IDF’s operations that would ensure humanitarian relief for the local residents. The Israeli Court also reviewed the legality of the use of certain types of weapons, rules of engagement, reliance on Palestinian residents in arrest operations, and more. In this legal climate, it becomes obvious that it would have been unthinkable for the Israeli legislature to even contemplate a law like the 2006 version of the U.S. Military Commissions Act that stripped courts of their judicial review powers.

This proactive judicial review has generated still further differences in the substantive legal rules applicable in both wars:

• The SCOTUS has determined that the “global” war on terrorism is an armed conflict governed by Common Article 3.  Perhaps ironically, the HCJ found that the Israeli armed conflict with its adjacent/occupied Palestinian neighbors is a full-blown international armed conflict, governed by the entire Geneva Conventions and the customary provisions of Additional Protocol I.
• The SCOTUS has accepted the administration’s position that there are three categories of people, namely civilians, lawful and unlawful combatants, whereas its Israeli counterpart has rejected the notion of unlawful combatants, determining instead that terrorists were civilians taking direct part in hostilities.
• Moreover, the Israeli Court has sought ways to mediate the gap between what the war paradigm allowed the state to do and the constraints the state would otherwise have to meet under a human rights paradigm, and added some restrictions on the government’s war powers (e.g., a prohibition on targeted killings operations where the terrorist could otherwise be apprehended).

It is not clear that the more aggressive judicial review by the HCJ has resulted in a more humanitarian war on terrorism. The very different contexts of the two wars makes such comparisons highly debatable on most counts. On at least one point, in my mind, Israel would do well to learn from the U.S.: Whether as a legal obligation or political expediency, the U.S. has been far more generous in compensating civilians in Iraq and Afghanistan who have been inadvertently harmed in the course of military operations. Israel, for the most part, has resisted payment of compensation for “wartime operations.” As the U.S. Military Counterinsurgency Manual suggests, sometimes using less force (and by extension, showing more benevolence to the local population) is more effective than the opposite. In other words, the international laws of war may be less relevant to the modern wars on terrorism not because they constrain governments too much but because they allow them too much. This is a lesson both countries should probably pay more attention to.