Chief Justice of the U.S. Supreme Court John Roberts, in a 2017 decision on a controversial national security policy, declared: “Any rule of constitutional law that would inhibit the flexibility of the president to respond to changing world conditions should be adopted only with the greatest caution. Our inquiry into matters of … national security is highly constrained.”
Unfortunately, the Israeli Supreme Court has not adopted this approach; instead, it has taken steps in cases brought by left-leaning NGOs that are undermining Israel’s war effort.
Regardless of one’s views on Israeli judicial reform, achieving victory in Israel’s current existential war on terror requires the Israeli Supreme Court to borrow a page from its American counterpart and adopt a “highly constrained” approach to interfering with national security.
Over the past several months, left-wing activist groups, prompted by lawsuits against Israel in the International Court of Justice and International Criminal Court, brought two cases to the Supreme Court against the Israeli government for allegedly violating the rights of Gazans.
One case dealt with claims related to the alleged obstruction of humanitarian aid to Gaza; the second addressed the conditions of security prisoners in the Sde Teiman Detention Center.
Fearing international condemnation for supposed violations of international law, the Supreme Court agreed to hear the allegations and indicated they would respond favorably to them. The IDF and the Shin Bet took steps to placate the Supreme Court and demonstrate that they were taking measures to address these concerns with the aim of preventing the Court from ruling completely against them.
Both cases undermine the twin goals of the war effort: To destroy Hamas’s military and governance capabilities, and free all of the hostages.
Increasing “humanitarian aid” to Gaza only results in more aid being stolen by Hamas. It thus strengthens the terrorist group’s ability and resolve to keep fighting.
The petition arguing for improved conditions for incarcerated Hamas terrorists without Jerusalem receiving similar assurances for the Israelis being tortured in Hamas captivity limits the leverage Israel has to improve the hostages’ situation while leading to the release of those complicit in Hamas terror.
Indeed, the pressure generated by the Court’s willingness to hear the Sde Teiman petition played a key role in the universally condemned decision to release the Director of the Al-Shifa Hospital Mohammad Abu Salmiya, who oversaw the institution that Hamas turned into a terror base and in which Israeli hostages were tortured and murdered.
Additionally, the Court’s interim order against the government requiring the state to demonstrate that it was sending a sufficient amount of humanitarian aid to Gaza prompted the IDF’s announcement of 11-hour “tactical pauses” in the fighting to allow for the passage of more aid convoys before the decision was overturned.
Providing an avenue for third parties to challenge and influence the government’s military and national security policies amidst an existential war is extremely destructive to the government’s efforts to prosecute the war effectively. Moreover, the Supreme Court lacks the technical experience and holistic outlook on the national security needs of the state to adjudicate the claims based on the overall interests of national defense.
In light of these concerns, the Israeli Supreme Court should adopt the approach of the American judicial system of deferring matters of national security and military strategy to the executive branch.
This deference to the executive branch does not eliminate the judiciary’s ability to weigh in on contested legal questions and overturn policies that clearly violate constitutional rights. However, it does provide the executive with the discretion to implement necessary national security policies without being subject to excessive obstruction and second-guessing by outside groups.
As noted, Chief Justice Roberts upheld this position in his majority ruling in the 2017 case of Trump vs. Hawaii. This ruling recognized the Supreme Court’s limited ability to intervene on matters of national security and upheld President Donald Trump’s executive order restricting entry to the U.S. of citizens from countries with high rates of terrorism and did not undergo proper vetting procedures. The ruling took into account that the president is better equipped to respond to rapidly evolving threats to homeland security than the courts.
In Israel’s case as well, it is the executive branch, the Security Cabinet and the appropriate ministers and security bodies who have the knowledge and expertise to make the critical and complex decisions in the existential war facing Israel.
Although judicial reform is a divisive issue that led to extreme civil strife before the Oct. 7 terrorist attack, it is nonetheless necessary for this limited reform to be implemented so that Israel can achieve victory over Hamas and all its enemies. A cross-party consensus on this particular issue can likely be forged.
Israel must be allowed to achieve its war aims without being constricted by improper judicial intervention that puts international pressure regarding Gaza above the well-being and safety of Israeli citizens.
