The Israeli Law Professors’ Forum for Democracy, an ad hoc and voluntary group of experts on Israeli law and specifically Israeli public law, expresses its grave concern over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney general and civil service legal counsels, and to violate human rights. In this position paper we examine the case law of the Israeli Supreme Court relating to security and the occupied territories.
We find that:
● The Israeli Supreme Court rarely intervenes and practices extreme restraint as concerns government measures in security matters or in matters relating to Israel’s policy in the occupied territories.
● Presenting the Supreme Court’s involvement as ‘restrictive’ in a manner which impedes the government’s ability to act is mistaken and misleading.
● Empirical studies over recent decades indicate that despite using human rights rhetoric, the Supreme Court rarely strikes down policy concerning the conduct of hostilities or counterterrorism measures.
● Insofar as concerns active fighting and use of lethal force, the Supreme Court has not restrained the government in a significant manner.
● The Supreme Court has refused to decide on the legality of the settlement policy, effectively paving the way to the expansion of the settlement policy by Israeli governments. .
● For decades the Supreme Court has been interpreting the international norms applicable to the occupied territories in a manner which grants the government broad powers, often in contravention of the accepted understanding of these norms in the international community.