Last week, Israeli police finally agreed to allow an anti-war protest in Israel's third-largest city, Haifa. It took aggressive litigation by the Association for Civil Rights in Israel to get Israel's Supreme Court to put pressure on the police to allow a protest against the war organized by Palestinian citizens of Israel. This follows an earlier Supreme Court decision that struck down Prime Minister Benjamin Netanyahu's plans to strip Israeli courts of much of their jurisdiction over matters involving government abuse of power.
These actions by the Court are good news for democracy and human rights, but the job of Israel's Supreme Court is only beginning. In times of crisis in particular, democracies require independent and strong judiciaries to protect the rule of law and fundamental rights, like freedom of expression.
Long before Hamas's attack on Israel and the ensuing war that has led to tens of thousands of deaths, Israelis were embroiled in weeks of mass protests against government proposals that would have changed the very nature of the nation by stripping the courts of their powers to review government actions. Israel, unlike the United States, has no written constitution and it operates effectively with only two branches of government. On the one side is the Knesset, Israel's parliament, which is unicameral and whose majority coalition chooses the Prime Minister, the chief executive, effectively fusing the two branches together. On the other side is the judiciary, headed by a Supreme Court, which acts as the only check on government abuses of power.
For decades in Israel, a tension existed between the two sides, in the same way that tensions exist in other liberal democracies between the courts and the government, and over the years, the Israeli Supreme Court has been the central platform in Israel for the protection of human rights and the rule of law.
For example, in 1999, the Court held that the security services did not have the authority to employ certain interrogation methods, including those that subject individuals to physical pressure that could be described as torture (although it allowed certain defenses). In 2017, the Court protected the right to protest, stating "Criticism of state authorities and public figures is the lifeblood of democracy."
However, the Court has been a lot slower to act on issues related to the human rights of Palestinians in the Occupied Palestinian Territories and has historically been hesitant to interfere in the acts of government in the context of national security. It has even given a green light to government actions that in our view violate human rights.
Last year, the Court ruled that in times of national unrest, protests may be limited or even banned in order to not disrupt public order. It has allowed the expulsion of Palestinian residents in the Occupied West Bank and even the demolition of entire villages in the West Bank to make space for Jewish settlements, has upheld laws that restrict Palestinian family unification, and has permitted the practice of administrative detention, where prisoners (most of them Palestinians) may be detained for months or even years without formal charges or a trial.
Today, Israel needs a Supreme Court that is committed to the protection of human rights and the rule of law, and the Court's recent decisions should be just the beginning of its work to defend democracy.
Since the October 7 Hamas attacks, Israelis have seen a backlash on civil liberties in the state, mostly focusing on cracking down on Palestinian citizens of Israel. Hundreds of Palestinian citizens have been arrested for expressing critiques of the war, including on social media, and Israelis have faced extraordinary restrictions on their abilities to protest in the streets and criticize their government's practices. Protesters have been beaten, dragged to the ground and arrested for no reason. Police have allowed demonstrations calling for the reoccupation of Gaza and more settlements while refusing permits for protests by Arab leaders. New laws are being proposed that would further erode freedom of expression for people who are critical of Israel's war as well as due process rights for those accused of war-related crimes.
In the Occupied West Bank, hundreds of Palestinians have been killed in clashes with Israeli security forces and new restrictions on freedom of movement and on other rights have taken hold since Hamas's attack on October 7.
It is also inevitable that the "day-after" scenario in Gaza, whatever it may end up being, will need a vigilant Supreme Court to uphold human rights, including when it comes to providing remedies to those harmed by the war and to address future problems that will likely arise, like continuing humanitarian issues, land being confiscated for security purposes, the ongoing health crisis, and the rebuilding of Gaza.
Without a strong and independent judiciary that is empowered to review government practices, even in times of war, human rights violations will flourish. A strong and independent judiciary is the last line of defense against the sacrifice of civil liberties in the name of national security, especially under the extreme right wing Netanyahu government.
In the aftermath of the September 11 attacks against the United States, it became clear that the nation needed an independent judiciary to act as a check on the executive as it prosecuted its war on terror. The United States Supreme Court issued major rulings on the Bush administration's authority to prosecute the war. So too does Israel require an independent judiciary as it wages its own war. In times of crisis, it is more important than ever for the rule of law to take hold and for a system of constitutional checks and balances to guide government responses.
As stated by retiring president of the Israeli Supreme Court, Justice Esther Hayut, "even at this difficult time, the court must fulfill its role and decide on the issues brought before it. That's all the more so when it comes to issues involving the core characteristics of the identity of Israel as a Jewish and democratic state."
As tthe Court noted in its most recent decision to allow anti-war protests, "We need to state the obvious: the right to protest isn't a privilege, it is a basic right. That is true also in war time."
Udi Ofer is the John L. Weinberg Visiting Professor of Public and International Affairs at Princeton University, a former ACLU attorney for 20 years, and chair of the International Advisory Council of the Association for Civil Rights in Israel (ACRI). Noa Sattath is the Executive Director of the Association for Civil Rights in Israel, the largest human rights organization in Israel. ACRI represented 38 human rights organizations in the Supreme Court challenging the amendment to the reasonableness standard.
The views expressed in this article are the writers' own.
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