It would not be an exaggeration to say that Aharon Barak has influenced the Israeli legal system and constitutional discourse more than anyone else. His mixed legacy of incredible judicial activism on the one hand, and relatively security-oriented jurisprudence on the other, has left the Israeli Court open to criticism from both Left and Right, but – bottom line – has also contributed greatly to the development of Israeli democracy.
Barak, who retired two years ago from his position as President (i.e. Chief Justice) of the Supreme Court, is usually reticent, reluctant to talk about himself. As a judge he almost never spoke to the press, preferring to let his jurisprudence speak for itself and to maintain the deeply Israeli myth of the professional, neutral judge, devoid of personal beliefs. In a rare personal interview (click here for Hebrew) in today’s Haaretz magazine, he shares some interesting reflections on his judicial legacy.
For one thing, he expresses regret for having approved the policy of house demolitions in the Occupied Territories. Or rather, he notes that he personally opposed the policy, but felt – and still feels – that he could not have struck it down:
“That is not how we approached this issue in the court’s rulings down through the years. I felt that I was obligated to the approach we took. Maybe I was mistaken. Maybe this is a situation in which discretion can be applied. I did a cold, clear legal analysis of the issue against the background of the history of the subject and its place in the Defense (Emergency) Regulations. I told myself, even though I am very much against house demolitions, that the article of the law allows demolition and all I can do is apply the principle of proportionality. I could have said, in my analysis as a justice, that while it is true that the military authority can exercise the discretion to demolish a house, that power can be used only in the most extreme cases. For example, if someone threw a stone that struck glass but no one was hurt, his house must not be demolished.”
Strange analysis, to be sure. Strange, among other things, because the policy in question – allowing a suspected terrorist’s house to be blown up, even if he is already dead and his innocent relatives live there – is a classic instance of collective punishment, in direct contravention of international law and of even the most basic constitutional principles. It is not even something that is done as a form of punishment, after someone has been duly tried and convicted; it is an adminstrative measure, used as a form of deterrence without trial. How can punishment that is not directed at the guilty ever been called “proportional”?! In order to find the policy legal, the Court actually had to adopt a position that was in violation of the Fourth Geneva Convention, which is supposed to be binding in Occupied Territory. For Barak to argue that purely legalistic considerations led him to approve the policy, that he lacked the necessary discretion, is odd to say the least.
Also interesting is the development in Barak’s approach to the issue, which he mentions during the interview:
“My thinking on the subject has developed since then. I now think that a house demolition is viable solely in situations in which the house was used to commit an offense, in which case it is like a weapon that was used. The house is the weapon. You sleep there and it is your place of departure for perpetrating the terrorist act. In that situation, an attack on the house is like confiscation of a car that you drove to commit an offense. I see no problem with that – provided, of course, that it is your house and not someone else’s. That it is the house you set out from, not a house you haven’t visited for the past 10 years. Those are the only situations in which I do not see a problem with demolitions. But use has been made of demolitions not only in clear-cut situations like those. No one understands why the house of a terrorist’s father is demolished. If the house belongs to the terrorist’s father, it must not be demolished.”
Huh? Human Rights Mom admits once again to a bit of confusion (and this time it doesn’t seem to be the result of Human Rights Baby wailing for cookies, making her head go all fuzzy)… The house is the weapon? Can’t say I really get that one. And what can be clear-cut about destroying a person’s house without trial? Again, regardless of the criteria employed, house demolition is an administrative measure, not a form of punishment.
Barak also mentions his famous (infamous?) “bargaining chips” decision (hopefully I’ll have time to post about it later), in which the Court originally upheld a policy allowing people to be held in administrative detention, even when the State admitted that they posed no individual danger to security and were being held simply as “leverage” for the release of abducted Israeli soldiers. Later, after the decision was made public (at first it was secret), the Court revisted the issue and overturned its previous ruling. In his decision, Barak courageously admitted his previous error.
Human Rights Mom knows how easy to sit back and criticize other people. Like those annoying people in the mall, who can’t resist coming up to her and saying things like, “Isn’t Human Rights Boy cold, walking around with no shoes when it’s snowing out?” or “Are you sure it’s a good idea to let Human Rights Baby drink Coke out of his bottle and have a Hershey’s bar for breakfast”? I mean, really.
But one has to wonder whether that combination of extreme activism in theory and self-restraint in practice is such a good thing. It’s one thing for a Court to place formal limits on its ability to intervene in certain issues; it’s quite another for it to claim “everything is justiciable”, and then turn around and give the ultimate seal of approval to things that are patently illegal.
Food for thought.
