When he served as prime minister, Menachem Begin was outspoken in his defense of the Supreme Court, even when its rulings didn't quite suite him. His habit was to remind all and sundry that "there are judges in Jerusalem." The subtext was that this is above all a land of law.
Regardless of whether one favors or opposes yesterday's court decision to erase in effect 30 kilometers of the 40-km. route of the security fence between the Modi'in region and Givat Ze'ev, the inescapable message that decision must send to those who would put Israel in the dock is that "there are judges in Jerusalem."
This message is particularly pertinent to the International Court of Justice in The Hague, expected to issue its own ruling on fence on July 9. Israel had refused to participate in the ICJ's deliberations on the grounds that Israeli security is unequivocally outside the international tribunal's jurisdiction.
There is certainly no remote justification for a panel, some of whose members represent patently dictatorial regimes, to sit in judgment of a country as deeply democratic as Israel, a country which has – once more – proven how independent its judiciary is.
In its latest ruling, controversial though it is, the court again demonstrated that Israel can very effectively judge itself.
Given Israel's circumstances, it can be fairly assumed that no other democracy would be as broad-minded, certainly not to the point of sacrificing its own security interests and quite possibly risking the lives of its citizens. As a yardstick, it would serve us to recall that the US Supreme Court only this week permitted Guantanamo inmates, locked up for years, to seek legal redress. In Israel, this was never a question, not even in the cases of arch-terrorists, as the recent trial of Marwan Barghouti showed. Israel has nothing to be ashamed of in comparison to any other Western democracy. In fact it can only benefit from the comparison with democracies hardly as threatened as itself.
Israel's judicial branch didn't shrink from challenging the government and the security establishment's weightiest decisions, including the fence's basic legality and legitimacy. While the court didn't hesitate to reject its own government's routing of the fence in a very key area (along Route 443 where drivers and passengers face very real dangers), it did uphold the government's right to construct the barrier, as long as its raison d'etre is based on security and it is not intended as a political boundary.
Moreover, the court indicated that each fence segment is liable to be scrutinized in order to ascertain that the benefit accrued from it (i.e. the security it provides Israelis) does not disproportionately impose hardships on the Palestinians. The court even went so far as to say that "the state must find an alternative that may give less security but would harm the local population less. These alternative routes do exist" (emphasis added).
A judicial system that is willing to explicitly say that Palestinian convenience can, at times, trump Israeli lives isn't a court the nations of the world have any right to mistrust.
All this might not instill cheer in too many Israeli hearts, however, and not just for security reasons. The decision rightly raises the question of whether our Supreme Court has stepped over its proper bounds and into the realm of judicial activism.
It would be one thing, for example, if the court had ruled against the route of the fence on grounds that (Palestinian) humanitarian considerations were not taken into account. This is not the case. The court accepts that the IDF and the government, through its approval of the plan, did try to minimize dislocation for Palestinians consistent with the considerations of security and topography. The decision went further, however, to question the exact balance the executive branch struck in weighing conflicting considerations.
The purpose of the court is not to become a super-executive branch, second-guessing complicated decisions in which judgment calls are made within the realm of the reasonable. That's what we elect the government to do. But if judges in Jerusalem should not arrogate themselves such rights, all the more so those in the Hague.
