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For Israel to win, the judicial system must be reformed

The Supreme Court should not have a veto over Israeli security and counterterrorism policies.

Israeli Supreme Court President Esther Hayut (center) with other justices at court in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.
Israeli Supreme Court President Esther Hayut (center) with other justices at court in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.
Alex Nachumson
Alex Nachumson

The American Declaration of Independence famously guarantees the right to “life, liberty and the pursuit of happiness.”

Over the last 250 years, people have tended to focus on “liberty and the pursuit of happiness,” but it is no coincidence that the phrase begins with the right to life.

The right to life is and should be paramount over all other considerations, because it is the basis of existence. In the current debate over potential reforms to Israel’s judicial system, this element has been glaringly absent.

The conflict with the Palestinians has been raging for over 100 years. It has taken many forms—economic, diplomatic and mainly terrorism. It is not a war that can end Israel’s existence in one fell swoop, but it can deliver devastating blows to the longevity of the Jewish state.

Let there be no doubt, this war will continue until one side gives up. Sadly, we have witnessed this once again with the deadly terrorist attacks over the weekend.

We know that Palestinian rejectionists envision nothing less than the dismantling of Jewish sovereignty in the Jews’ ancestral and indigenous homeland. As such, Israel must ensure that it takes the necessary steps to force the Palestinians to give up on this dream.

We know quite well that the Palestinians use the international establishment, whether multilateral institutions like the United Nations and the International Court of Justice or the media, to further their aims, but there is an obstacle closer to home.

Following the 1992 passage of Israel’s Basic Law: Human Dignity and Liberty, the increasingly activist Supreme Court has used it as a tool to overturn many of the Knesset’s laws, especially in the security sphere.

According to the Israel Democracy Institute, some of the laws the Court has struck down are Exemption from Damage Claims against Security Forces (2006), which grants the state immunity from compensation claims made by Palestinians injured by security forces.

There is also Security Detention without Appearing Before a Judge (2010), which revoked a temporary order that allowed for a hearing to extend the detention of a suspect in a security offense without the suspect’s presence. The Supreme Court rejected the state’s position, which argued that the purpose of the law is to improve law enforcement officials’ capacity to conduct effective counterterrorism and investigations into security offenses.

Most recently, in 2021, the Supreme Court struck down a law that allowed the government to withhold benefits from the parents of a minor imprisoned for security offenses. The Court found that the law was unconstitutional and violated the parents’ rights.

These are just three examples of how the Supreme Court’s unregulated power has hampered Israel’s efforts to defeat terrorism and violent Palestinian rejectionism. These are not minor issues. They have prevented Israel from using all the tools at its disposal to fight and win.

Another problematic decision taken by the Supreme Court was in 2019, when it overruled then-Defense Minister Avigdor Liberman’s attempt to prevent over 200 Palestinians from attending an event on Remembrance Day for Fallen Soldiers and Victims of Terrorism. Liberman felt that the presence of the Palestinians blurred the line between those who perpetrate and those who suffer from terrorism.

The Court’s decision didn’t necessarily hamper Israel’s security forces, but it did delegitimize Israel’s war on terror and created a false equality between the two sides. This has a chilling effect on those who believe in the righteousness of Israel’s cause, a necessary element for any people that has to fight for its national existence against those who seek to extinguish it.

Simply put, the justice system may see itself as the bastion of liberty and equality, but it is prioritizing those ideals over the right to life, both personal and national.

The right to life should be prioritized, especially in a war against an enemy that does not care about our right to life. Our elected representatives should be able to pass laws to protect that right and assist our security forces in taking all measures necessary, within reasonable boundaries, to end this war in victory for Israel and peace and security for all.

Judicial reform will not prevent the justice system from challenging laws, but it will put an end to the judiciary’s complete and unrestricted veto over our democratically-elected representatives who seek to provide the security forces with the ability to win.

This is as it should be in any democracy, especially one constantly fighting ruthless enemies who challenge our long-term national existence.

For Israel to win, the judicial system must be reformed.

Alex Nachumson is a Major (Res) in the IDF, CEO of Mivtachi Israel, an organization of former IDF officers, and an adviser to the Israel Victory Project.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.

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