The Judge as Geokrat and Maximalist
GB discusses the evolution of the judicial branch in the Middle East and in the new century’s wars with Israel’s most famous jurist
GB: Are there any political or strategic activities of government in the 21st century that should never be reviewable by courts?
GB: None at all?
AB: None at all.
GB: What about declarations of war or peace agreements?
AB: According to my theory of the law, even declarations of war or peace agreements are reviewable by the courts. The discretion given to the executive branch is, of course, very wide. Therefore, the scope of review is very limited. But take the case of peace and war. Suppose you can find that the chief negotiator or that the prime minister or the president received bribes. Do you not agree that the courts should be able to say that, under such circumstances, the agreement is void, or that the declaration of war is illegal or unconstitutional?
GB: The traditional approach would be to treat this as a political problem – that is, as a problem that is for the political branch to resolve.
AB: Yes, of course, this is a political problem – and likely also a criminal law problem. And if there is a criminal law element, then you have to have a court that will give due process.
GB: If a country – Israel or other – were to declare a war or broker a peace, any judicial action would presumably happen some 20 or 30 days after the war or peace declaration. This would seem quite late. What would be the practical effect of the judicial oversight?
AB: What is the practical effect of Roe v. Wade on the right to abortion when the case lasts more than nine months? What is the relevance? These are questions that every court has to face. In many cases, war will already have been declared. So be it. Take the US and the Vietnam war. The war is declared. I do not see any reason for which the US Supreme Court should not have jurisdiction to determine whether the war was constitutional – including whether the declaration was made (or not) by the proper authority.
GB: What would be the remedy if the court determined that the war or the declaration of war was unconstitutional?
AB: This again depends on the circumstances. In some cases, the only remedy would be a declaration to the effect that something is unconstitutional. But even a declaration has a major effect. We are, after all, telling our rulers that what they are doing is unconstitutional. In other cases, there will be more immediate, practical effect. For example, in Israel, we had a case in which the government was negotiating a peace agreement, and there was an argument to the effect that the government could not negotiate the agreement because it was in fact an interim government – that is, interim governments could not negotiate peace agreements. The Supreme Court took the case. Some of the judges thought that the matter was not justiciable. The majority of the judges – I among them – thought that the case should indeed be discussed. One other judge thought about issuing an injunction – on the premise that an interim government could not make such major policy changes. My own theory was that even an interim government could act out of necessity – as circumstances dictate. If this were an urgent matter, then even an interim government could act.
GB: Can you envision circumstances in which a war in an advanced state is declared unconstitutional, after which an injunction is declared so as to require the executive branch to lay down arms?
AB: This depends on the constitutional culture and maturity of the country in question. In most countries, a court would not issue such an injunction. However, it is not inconceivable that if, say, the German constitutional court or the Japanese constitutional court were to find the policy objectives or the conduct of the German or Japanese army unconstitutional, it would issue an injunction. I see no problem with this. In other countries, of course, even if there is a determination of unconstitutionality, there might only be a declaration to this effect. Still, as I mentioned earlier, a declaration may also be very effective. Note that we have been talking about jurisdiction, and not about the content of the jurisdiction. It is not enough that a judge should fancy that a war should not be declared – that is, that he or she as a prime minster or president would not have declared the war. This is not the question at hand. This is not the judge’s jurisdiction. So whether a war is wise or not is not a legal matter. Procedural propriety is a legal matter, however – for instance, the right organ of state must have been the one to declare a war – as might be questions relating to proportionality or reasonableness.
GB: Given the complexity of these issues, would judges have to have specific training or preparatory culture in order to be legitimate in correcting or disciplining the executive on matters of war and peace?
AB: What is relevant is not the training of the judiciary per se, but rather the training of the public. The entire country needs to understand that in a mature constitutional system, the legislative branch, the executive branch, and even the judicial branch have no powers unless those powers are provided expressly or implied in the national constitution. This is what is meant by constitutional democracy. And the ones who ultimately decide whether there are disputes, in the event that there is express or implied constitutional provision of such power, are the courts.
GB: Yes, but do today’s judges know enough about, say, national security to be able to make those types of decisions? Surely, if this is the case in Israel, it cannot be the case in all countries?
AB: Consider that whenever there is a national crisis in Israel or in other common-law countries, a commission of inquiry is appointed. Was the behaviour of the army in Sabra and Shatila legal or illegal? An inquiry looked into this. And a judge headed this inquiry – as is the case with most other commissions of inquiry. So are judges qualified to make the decisions in the context of such complex inquiries?
GB: But one must presume that this would still require a particular type of culture – both a public culture and a judicial culture. Do you not agree?
AB: This would require a public culture in which judges should not say that simply because one is a judge, one will decide. The judge will understand that there are limits to his or her power. The public culture would have to be alive to the basic fact that human beings have all of the rights unless these are taken away. By contrast, the executive and the legislative branches have powers only to the extent that these are given to them in the constitution. If there is a dispute on this question, then the courts will adjudicate it.
GB: What about subject-specific knowledge or expertise about war and peace and national security? Surely, whatever their constitutional powers, judges ought to have some knowledge base in order to decide intelligently in matters of war, peace or national security?
AB: I was, of course, talking about the culture of a country – that is, the constitutional culture. You are asking about knowledge – and my answer in this regard is yes, obviously. In different systems, judges should know what other intelligent people in the country know. But that clearly is not enough. Judges can adjudicate only according to facts that are brought to them in a proper way. I do not see that there are any questions that, if brought in a proper way, cannot be adjudicated. A very complicated matter comes before the court – take, for example, a case wherein a submarine or a sophisticated jet has crashed, and families are suing the state for negligence. Can a judge decide in this case? Yes. This is manifestly a very complicated matter, but if the court has the evidence before it, then the judge can decide. If the evidence is not there, then he or she will acquit.
GB: So you are quite confident that there does not need to be a specialized knowledge set for judges – that is, that an intelligent judge, for all intents and purposes, only needs to know his or her role, and that the facts need to be presented and then interpreted?
AB: Correct. However, the judges are acting within a particular culture, and it would evidently be more complicated to convince a judge in respect of cultural matters that are foreign to him or to her. Still, my main point is that I do not believe that there are issues that are so complex that while a regular minister can apprehend them, a judge in the same legal-constitutional system cannot.
GB: Which countries’ jurisprudence and courts do you most admire?
AB: I am an admirer of the American courts – American constitutional law, the US Supreme Court. I am a great admirer of the German constitutional court, which has done wonderful work since WW2. I am a great admirer of the South African constitutional court, which has done wonderful work since the end of apartheid. And, finally, I am a great admirer of the Canadian Supreme Court, which does first-rate work in the context of the Canadian Charter of Rights and Freedoms.
GB: Did you draw actively and consciously on these courts in your decisions?
AB: Yes, always.
GB: Did you draw beyond these courts?
AB: In the beginning, when Israel was established, we were drawing a lot on English case law – because Britain has a wonderful judiciary, and the country does not have a formal constitution. When constitutional questions came up, the English courts were not the main source. We do, in exceptional cases, go to other countries. We are evidently not limited to the four supreme courts that I mentioned. I am an admirer, for instance, of the Indian Supreme Court.
GB: What would be the more advanced courts that you would be interested in studying in the immediate Middle East?
AB: I just do not know – regrettably. I know more about the German constitutional court than about the Egyptian constitutional court.
GB: Is this due to a cultural gap, a development gap, or is it conscious ignorance?
AB: I think that it is a question of language.
GB:Is Israel involved or interested in judicial training or capacity-building in any country in the region – particularly after the Arab Spring?
AB: I was certainly interested in such training, in my time. Israel was interested in it, but it did not materialize, unfortunately.
GB: Would there be any reciprocal interest in that type of arrangement from other countries in the region?
AB: I have no idea.
GB: What is the proper role of religion in Israeli society – legally and philosophically?
AB: The role of religion in Israel’s society should be the same as the role of religion in other advanced societies. We have many, many religious people in Israel, and they should all have the right to freedom of religion. I even think that the state can support religion without undermining democracy – provided that it does so on an equal basis.
GB: Would this involve the Israeli state supporting different strands of Judaism, or would it also support religions other than Judaism?
AB: There is one Jewish religion. There are not several Jewish religions. Within the Jewish religion, you have Orthodox, you have Conservative, and you have Reform movements. Each should be supported on an equal basis. As for state support of other religions, indeed, the state should support all religions in Israel – not just Judaism.
GB: What is the status of Arabs or Palestinians in Israeli law and jurisprudence today?
AB: You mean the Arabs who are Israeli citizens?
GB: The Arabs who are Israeli citizens, as well as those who are not. What is their status?
AB: We have some 7.7 million people in Israel. Well over a million of these people are Arabs. They are Israelis. They have full Israeli rights and citizenship. They have full equality with others under the law. They vote for Knesset members. There are Arab Knesset members. Of course, human nature being what it is, there is discrimination. The state does its level best to fight this, and the Supreme Court along with it. Then there are Palestinians – in the West Bank, for instance. They are under the rules of belligerent occupation, or under the agreement between Israel and the Palestinian Authority pursuant to the Oslo Accord.
AB: This is outside the realm of my expertise.
GB: What will the Israel-Palestine situation look like in 2020?
AB: Who knows? I do not know how it will look tomorrow.
GB: How did you come to your 2006 decision establishing the legal framework for targeted killings – hisulim – in Israel?
AB: The court had a targeted killing situation. The first question that we asked was: what is the legal framework? The First Additional Protocol of the Geneva Convention addresses the protection of civilians in international armed conflicts. That was our starting point. The Protocol also speaks to cases in which civilians are not protected, and the extent to which they are not protected. The Protocol itself is not binding in Israel, as Israel is not a party to it. But I came to the conclusion that those parts of the Protocol that deal with the rights of civilians constitute customary international law. Under our theory, customary international law is part of Israeli common law. As such, it is binding on Israeli courts, unless there is legislation to the contrary. In the event, there was no legislation to the contrary, so we applied the Protocol. I analyzed the First Protocol, which I thought gave the answer to one of the key questions: if civilians are protected, are the terrorists civilians? According to the Geneva Convention structure, we determined – and there are many people who were unhappy with this determination – that the terrorists are in fact civilians because they are not combatants under international humanitarian law. In other words, they do not comply with the definition of a combatant: uniform, ranks, etc. However, civilians are not protected to the extent that they taking part – active part – at that time in hostilities.
GB: What is your sense of the extent to which a similar framework is being applied or ought to be applied to targeted killings by other advanced states? Take drone warfare in the US, for instance. Does it concern you?
AB: I feel that the same rules should apply. I do think that the same rules apply.
GB: What is the nature of Israel’s relationship with international legal bodies like the International Criminal Court (ICC)?
AB: I do not know what the evolution of this relationship will be. This is a sensitive question that has become quite political in Israel.
GB: Does the international community have a legal obligation to intervene in the event of mass atrocities in other countries?
AB: International law has gone through major changes in this respect. If there is a decision of the Security Council to this effect, then such intervening capability is there. There are those who think that this is wrong, or that it should be changed. This is an open moral and political question. Of course, this is not my area of expertise, but I do think that humanitarian intervention is authorized to the extent that it is authorized by the Security Council.
GB: What are the most important societal challenges for Israel over the next 10 to 20 years?
AB: There are so many. But the most important one, in my view, is to finalize our constitutional scheme. Our basic laws, which are the basis of the constitutionalization of Israel – of Israel being a constitutional democracy – have not yet been finalized. They are not comprehensive. Our bill of rights is partial. It is very easy to change this bill of rights. Israel needs to have a better constitution – a broader framework, including an entrenched bill of rights, which takes into account the needs of Israel in the 21st century. We do not yet have this. South Africa has this. Canada has this. We need to move on this front.
Aharon Barak is Professor at IDC Herzliya, former President of the Supreme Court of Israel, and former Attorney General of Israel.