key: cord-0060118-70i5vsnl authors: Barak, Aharon title: Human Rights in Times of Terror—A Judicial Point of View date: 2020-05-07 journal: Constitutionalism Under Extreme Conditions DOI: 10.1007/978-3-030-49000-3_8 sha: 6417bb050cbf2bd9495dd21244a19707eff1e0af doc_id: 60118 cord_uid: 70i5vsnl In this chapter, Former President of the Israeli Supreme Court argues that the role of a judge on the Supreme Court of a democratic state is to protect both the constitution and democracy. Judges in modern democracies should protect democracy both from terrorism and from the means the state wishes to use to fight terrorism. Judges meet their supreme test when they face situations of war and terrorism. The protection of human rights of every individual is a duty much more formidable in situations of war or terrorism than in times of peace and security. But if judges fail in their role in times of war and terrorism, they will be unable to fulfil their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace. The chapter explores these issues through an examination of the need for a balanced and proportionate approach and by using illustrations from the example of the Israeli Supreme Court, with a focus on the role of judicial review in the ‘war on terror’. accepted. Anything can happen. If democracy was perverted and destroyed in Germany of Kant, Beethoven and Goethe, it can happen anywhere. If we do not protect democracy, democracy will not protect us. I do not know if the Supreme Court judges in Germany could have prevented Hitler from coming to power in the 1930s. But I do know that one of the lessons of the Holocaust and of the Second World War is the need to have democratic constitutions and ensure that they are put into effect by judges whose task is to protect democracy. It was this awareness, in the post-World War II era that helped disseminate the idea of judicial review of legislative-action both on the national level and on the international level-and make human rights central. And it shaped my perspective that the main role of the judge in a democracy is to maintain and protect democracy. According to this approach, judges-whether national or international-have a major role to play in protecting democracy. They should protect it both from terrorism and from the means the state wishes to use to fight terrorism. Judges are, of course, tested daily in their protection of democracy, but judges meet their supreme test when they face situations of terrorism. The protection of human rights of every individual is a duty much more formidable in situations of terrorism than in times of peace and security. If judges fail in our role in times of terrorism, they will be unable to fulfill their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of terror and the status of human rights during a period of tranquility. It is self-deception to believe that judges can limit their judicial rulings so that they will be valid only during terror, and that they can decide that things will change in peacetime. The line between terror and tranquility is thin. In any case, it is impossible to maintain this distinction in the long term. Judges should assume that whatever they decide when terrorism is threatening security will linger many years after the terrorism is over. Indeed, judges must act with coherence and consistency. A wrong decision in a time of terrorism plots a point that will cause the judicial curve to deviate after the crisis passes. 2 2 See Korematsu v United States 323 US 214, 245-246 (1944) : "[A] judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty […] A military order, however unconstitutional, is not apt to last longer than the military emergency. […] But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. […] A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image". See Hughes (2001) , p. 186 (noting the general agreement that "judicial independence is both an individual and a systemic, institutional or 'collective' quality"). See also Tassopoulos (2019) (discussing the importance of continuity and of distinguishing between the emergency and the existing constitutional order created through overarching political deliberation), and Kuo (2019) (discussing the role of the judiciary in protecting the rule of law in perpetual states of emergency). Moreover, democracy ensures judges-national and international-independence. It strengthens them, because of their political non-accountability against the fluctuations of public opinion. The real test of this independence comes in situations of terrorism. 3 The significance of the judges non-accountability, becomes clear in these situations when public opinion is more likely to be near-unanimous. Precisely in these times of terrorism, judges must embrace their supreme responsibility to protect democracy. They should always reflect history-not hysteria. Admittedly, the struggle against terrorism turns our democracy into a "defensive democracy" or "militant democracy." (András Sajó 2004) . Nonetheless, this defense and this militant fight must not deprive our regime of its democratic character. Judges should act in the spirit of defensive fighting or militant democracy, as opposed to uncontrolled democracy. There is a well-known saying that when the cannons speak, the Muses are silent. A similar idea was expressed by Cicero in his maxim "Silent enim leges inter arma" (In battle, indeed, the laws are silent) (Cicero 1972). These statements are regrettable; I hope they do not reflect the way things are. I am convinced they do not reflect the way things should be. Every battle a country wages-against terrorism or against any other enemy-must be waged in accordance with rules and laws. There is always law according to which the state must act. There are no black holes in which there is no law. And the law needs Muses. We need the Muses most when the cannons speak. We need laws most in times of war. The struggle against terrorism is not conducted outside the law, but within the law, using tools that the law makes available to a democratic state. Terrorism does not justify the neglect of accepted legal norms. This is how we distinguish ourselves from the terrorists themselves. They act against the law, by violating and trampling it. In its battle against terrorism, a democracy acts within the framework of the law and according to the law. Indeed, the battle against terrorism is a battle of a law-abiding nation and law-abiding citizens against lawbreakers. It is, therefore, not merely a battle of the state against its enemies; it is also the battle of the law against its enemies. Democracies should conduct the struggle against terrorism with a proper balance between two conflicting values and principles. On the one hand, we must consider the values and principles relating to the security of the state and its citizens. Human rights cannot justify undermining national security in every case and in all circumstances. Human rights are not a stage for national destruction. 4 The Constitution is not a suicide pact. Judges always recognize the power of the state to protect its security and the security of its citizens. On the other hand, we must consider the values and principles relating to human rights. National security cannot justify undermining human rights in every case and under all circumstances. National security does not grant an unlimited license to harm the individual. Judges always emphasis that the rights of every individual must be preserved, including those of the individual suspected of being a terrorist. Also a terrorist is a human being and his dignity must be protected. Every balance that is made between security and human rights will impose certain limitations on both security and human rights. A proper balance will not be achieved when human rights are fully protected, as if there were no terrorism. Similarly, a proper balance will not be achieved when national security is afforded full protection, as if there were no human rights. The balance is the price of democracy. Only a strong, safe, and stable democracy may afford and protect human rights, and only a democracy built on the foundations of human rights can exist with security. It follows that the balance between security and human rights does not reflect the lack of a clear position. On the contrary, the proper balance between security and freedom is the result of a clear position that recognizes both the need for security and the need for human rights. When I speak about the balance, I don't mean an external normative process that changes the scope of rights and the protection accorded them because of terror. I mean the ordinary process and the ordinary balancing rules we have that take place when we address the relationship between individual rights and the needs of society. In this latter process, rights are not absolute. They may be limited to serve the needs of society. In a judgment that dealt with the battle on terror I wrote 5 : […] Israeli constitutional law has a consistent approach to human rights in periods of relative calm and in periods of increased fighting. We do not recognize a clear distinction between the two. We do not have balancing laws that are unique to times of war. Naturally, human rights are not absolute. They can be restricted in times of calm and in times of war. I do not have a right to shout 'fire' in a theatre full of spectators […] War is like a barrel full of explosives next to a source of fire. In times of war the likelihood that damage will occur to the public interest increases and the strength of the harm to the public interest increases, and so the restriction of the right becomes possible within the framework of existing criteria […] Indeed, we do not have two sets of laws or balances, one for times of calm and the other for times of terror. When the court rules on the balance between security and freedom during times of terrorist threats, it often encounters complaints from both sides. of human rights argue that the court gives too much protection to security and too little to human rights. The supporters of security argue that the court gives too much protection to human rights and too little to security. Frequently, the persons making these arguments read only the judicial conclusion without considering the judicial reasoning that seeks to make a proper balance between the conflicting values and principles. None of this should intimidate the judge. He or she must and does rule according to his or her best understanding and conscience. This balance is based upon the view that in democracy, not all means are acceptable. The ends do not justify the means. Thus, we ruled that parts of the separation fence in the West Bank, which is intended to prevent terrorists from the West Bank from entering Israel are not legal. We determined that the additional security attained by the location chosen for the security fence by the army is not proportional to the harm which that fence location causes to the fabric of the lives of the local inhabitants. In one case I wrote 6 : Ends do not justify the means. It is a manifestation of the idea that there is a barrier of values which democracy cannot surpass, even if the purpose whose attainment is being attempted is worthy. In one case we decided that the executive branch has no authority to authorize (ante) torture. This prohibition is comprehensive, and applies even in a "ticking bomb" situation. In my judgment I wrote 7 : We are aware that this judgment of ours does not make confronting that reality any easier. That is the fate of democracy, in whose eyes not all means are permitted, and to whom not all the methods used by her enemies are open. At times democracy fights with one hand tied behind her back. Despite that, democracy has the upper hand, since preserving the rule of law and recognition of individual liberties constitute an important component of her security stance. At the end of the day, they strengthen her and her spirit, and allow her to overcome her difficulties. In one of my last judgments, I had to deal with the constitutionality of a statute that imposed a temporary flat ban of family unification between an Israeli and his West-Bank spouse. The reason for the ban was that in twenty six cases the non Israeli spouse, who came to Israel by the program of family unification, was directly involved in terrorist activities. I decided that the statute is unconstitutional as it affects in a non-proportional way the right to family unification, which in Israel is a constitutional right derived from the right to dignity. In my judgment I Examination of the test of proportionality (in the narrow sense) returns us to first principles that are the foundation of our constitutional democracy and the human rights that are enjoyed by Israelis. These principles are that the end do not justify the means; that security is not above all else; that the proper purpose of increasing security does not justify serious harm to the lives of many thousands of Israeli citizens. Our democracy is characterized by the fact that it imposes limits on the ability to limit human rights; that it is based on the recognition that surrounding the individual there is a wall protecting his rights, which cannot be breached even by the majority. This is how the court acted in many different cases. Thus, for example, adopting physical measures ('torture') would without doubt increase security. But we held that our democracy was not prepared to adopt them, even at the price of a certain harm to security. Similarly, determining the route of the separation fence in the place decided by the military commander [in Beit Sourik Village Council] would have increased security. But we held that the additional security was not commensurate with the serious harm to the lives of the Palestinians. Removing the family members of suicide bombers from their place of residence and moving them to other places ('assigned residence') would increase security in the territories, but it is inconsistent with the character of Israel as a 'democratic freedom-seeking and liberty-seeking state'. We must adopt this path also in the case before us. The additional security achieved by abandoning the individual check and changing over to a blanket prohibition involves such a serious violation of the family life and equality of many thousands of Israeli citizens that it is a disproportionate change. Democracy does not act in this way. Democracy does not impose a blanket prohibition and thereby separate its citizens from their spouses; Democracy does not prevent them from having a family life; democracy does not impose a blanket prohibition and thereby give its citizens the option of living in it without their spouse or leaving the state in order to live a proper family life; democracy does not impose a blanket prohibition and thereby separate parents from their children; democracy does not impose a blanket prohibition and thereby discriminate between its citizens with regard to the realization of their family life. Indeed, democracy concedes a certain amount of additional security in order to achieve an incomparably larger addition to family life and equality. This is how democracy acts in times of peace and calm. This is how democracy acts in times of war and terror. It is precisely in these difficult times that the power of democracy is revealed. Precisely in the difficult situations in which Israel finds itself today, Israeli democracy is put to the test. Judicial review of the battle against terrorism, by its very nature, raises the question of the timing and scope of judicial review. There should not be a theoretical difference between applying review at a time that the state is under threats of terrorism and doing so at a time after the terrorism seems to be gone. We should never postpone our judgment until terror is over, because the fate of a democracy and of human beings may hang in the balance. Protection of human rights would be bankrupt if courts-consciously or unconsciously-decided to review the behavior of the state only after the period of emergency ended. Furthermore, we should not accept arguments that the battle on terror in nonjusticiable. When human rights are effected by state action, such action should always be justiciable. 9 What is the scope of judicial review in time of terror? The answer to this question should vary according to the essence of the concrete question raised. On the one end of the spectrum stands the question-"what is the law on the battle against terror?" That question is within the realm of the judicial branch. The court is not permitted to liberate itself from the burden of that authority. The question which the court should ask itself is not whether the executive branch's understanding of the law is a reasonable understanding. The question should be is it the correct understanding. On the other end of the spectrum is the decision, made on the basis of the knowledge of the military professionals, to execute an operation against terrorists. That decision is the responsibility of the executive branch. It has the professional-security expertise to make that decision. The Court will ask itself only if a reasonable military commander could have made the decision which was made. If the answer is yes, the Court will not exchange the military commander's security discretion within the security discretion of the Court. True, "military discretion" and "state security" are not magic words which prevent judicial review. However, the question is not what the judge would decide in the given circumstances, rather whether the decision which the military commander made is a decision that a reasonable military commander was permitted to make. On that subject, special weight is to be granted to the military opinion of the official who bears the responsibility for security. Between these two ends of the spectrum, there are intermediate situations. Each of them requires a meticulous examination of the character of the decision. One of those legal aspects is the decision about proportionality. Who decides about proportionality? Is it a military decision to be left to the military, or a legal decision within the discretion of the judges? My answer is that the proportionality of military means used in the fight against terror is a legal question, left to the judges. In the case, regarding the proportionality of the harm which the separation fence causes to the fabric of life of the local inhabitants, I wrote 10 : The military commander is the expert regarding the military quality of the separation fence route. We are experts regarding its humanitarian aspects. The military commander determines where, on hill and plain, the separation fence will be erected. That is his expertise. We examine whether this route's harm to the local residents is proportionate. That is our expertise. Proportionality is not a standard of precision. At times there are a number of ways to fulfill its conditions. A zone of proportionality is created. It is the borders of that zone that the Court guards. The decision within the borders is the political branch's decision. Often the court will encounter the argument from the legislator or the executive that security considerations led to an action of the state, followed by a request that the court be satisfied with this statement. Such a request should not be granted. "Security considerations" are not magic words. The court must insist on hearing the analysis on the role of judicial review on emergency executive decisions and the rule of law in the Philippines, see Gatmaytan (2019 specific security considerations that prompted the states actions. The court must be persuaded that the security considerations actively motivated the state's action and were not merely a pretext. The court must be convinced that the security measures adopted were proportional. Indeed, in several of the many security cases that the Supreme Court heard, senior army commanders and heads of the security services testified before us. Only if we were convinced that the security consideration was the dominant one and that the security measure was proportionate, did we dismiss the challenge against the security action. In dismissing challenges to security actions, judges should not be naïve or cynical. Judges should analyze the evidence before the objectively. In the case dealing with review under the fourth Geneva Convention, of the state's decision to assign Arab residents from the West Bank to the Gaza Strip, I noted that 11 : In exercising judicial review […] we do not make ourselves into security experts. We do not replace the military commander's security considerations with those of our own. We take no position on the way security issues are handled. Our job is to maintain boundaries, and to guarantee the existence of conditions that restrict the military commander's discretion […] We do not, however, replace the commander's discretion with our own. We insist upon the legality of the military commander's exercise of discretion and that it fall into the range of reasonableness, determined by the relevant legal norms applicable to the issue. Is it proper for judges to review the legality of the fight on terrorism? Many argue that the court should not become involved in these matters. These arguments are heard from both ends of the political spectrum. On one side critics argue that judicial review undermines security. On the other side, critics argue that judicial review gives legitimacy to actions of the government authorities in their battle against terrorism. Both arguments are unacceptable. As to the argument that judicial review undermines security: Judicial review of the legality of the battle on terrorism may make the battle against terrorism harder in the short term. Judicial review, however, fortifies and strengthens the people in the long term. The rule of law is a central element in national security. As I wrote in a case of pre-trial pardon given to the heads of the General Security service who committed crimes against terrorists: 12 And I will add-to the confidence in international courts. As to considerations of legitimacy: To the extent that legitimacy by the court means that the acts of the state are lawful, the court fulfills its traditional role. Both when the state wins and when the state loses, the rule of law and democracy benefit. It should be remembered that the effect of the judicial decision does not occur only in the individual instance that comes before it. Rather the main effect occurs in determining the general norms according to which the state acts, and in establishing the deterrent effect this norm will have. The test of the rule of law arises not merely in the few cases brought before it, since state authorities are aware of the ruling of the court and act accordingly. The argument that judicial review somehow validates the state actions does not take into account the nature of judicial review. In hearing a case, the court does not examine the wisdom of the battle against terrorism, but only the legality of the acts taken in furtherance of the battle. The court does not ask itself if it would have adopted the security measures that were adopted, if it were responsible for security. Instead, the court asks if a reasonable person responsible for security would be within the bounds of the law to adopt the security measures that were adopted. Thus, the court does not express agreement with the means adopted but rather fulfills its role by reviewing the legality of the executive acts. Naturally, one must not go from one extreme to the other. One must recognize that the court will not solve the problem of terrorism. It is a problem to be addressed by the other branches of the state. The role of the court is to ensure the legality of the battle against terrorism. It must ensure that the battle against terrorism is conducted within the framework of the law and not outside it. This is the court's contribution to the struggle of democracy to survive. It is an important contribution, one that aptly reflects the judicial role in a democracy. Realizing this role during the battle against terrorism is difficult. Judges cannot and would not want to escape from this difficulty. I regard of myself as a judge who was sensitive to his role in a democracy. I took the tasks imposed on me-protecting democracy-seriously. Despite criticism often heard I have continued on this path for twenty eight years. I hope that by doing so, I was serving my legal system properly. Indeed, as judges, we must continue on our path according to our consciences. Judges, have a North Star that guides them: the fundamental values and principles of democracy. A heavy responsibility rests on their shoulders. Even in hard times, they must remain true to themselves. I discussed this in the opinion considering whether extraordinary methods of interrogation-torture or inhuman treatmentmay be used against a terrorist in a "ticking bomb" situation. The answer was no. I wrote: 13 Deciding these petitions weighed heavily on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. We know its problems, and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. Our concern Economic crisis and fundamental rights protection: the case law on austerity measures in comparative perspective Foreword: a judge on judging: the role of a supreme court in a democracy The role of a supreme court in a democracy, and the fight against terrorism Judging, democracy and terror Human rights in times of terror: a judicial point of view Financial crisis as a new genus of constitutional emergency? Cicero WNH (1972) Pro milone, 5th edn. Harvard UP Dialogue between Judges (2016) European Court of Human Rights Judicial review and emergencies in post-Marcos Philippines Hadjigeorgiou N, Kyriakou N (2019) Entrenching hegemony in Cyprus: the doctrine of necessity and the principle of bicommunality Judicial independence: contemporary pressures and appropriate responses From institutional sovereignty to constitutional mindset: rethinking the domestication of the state of exception in the age of normalization 2004) Militant democracy. Eleven International Publishing, The Hague Tassopoulos I (2019) Political emergencies as challenges to the impartiality of public law Public health emergencies and constitutionalism: between the national and the international Cases EA 2/84 Adalah legal centre for Arab Minority Rights in Israel v Minister of Interior Available in English at: https://supremedecisions.court. gov.il/Home/Download?path=EnglishVerdicts\7608213&fileName=05082760_a13.txt& type=4 Public committee against torture in Israel v The State of Israel Ajuri v. IDF Commander in West Bank Barzilai v Government of Israel Korematsu v United States 323 US 214 A. Barak that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges. Our fellow-citizens demand that we act according to the law. This is also the same standard that we set for ourselves. When we sit at trial, we too stand trial.