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    Preserving an independent court

    By Amnon Rubinstein

    All of a sudden, the world is taking an interest in verdicts handed down by Israel's Supreme Court.

    This interest will continue to grow in the wake of the temporary appointment of Arab judge Salem Jubarin to the Supreme Court. It should be hoped the appointment, which is to take effect today, becomes permanent.

    The bulletin of the Venice Committee, the Law Committee of the Council of Europe, has published a compendium of decisions handed down by the Israel Supreme Court, a rare honor for a non-European country. The legal press and others have also published news items about the Supreme Court.

    The most recent issue of The American Journal of International Law quotes a decision of Israel's High Court of Justice. The case involved a petition to the court following an injunction issued by the Israel Defense Forces to transfer relatives of a suicide terrorist from the West Bank to the Gaza Strip.

    The court applied the Fourth Geneva Convention to the injunction issued by the military commander and determined that this type of deportation was permitted only if it could be proved that those subject to deportation had aided the terrorist or had known of his plans. The High Court of Justice set aside the injunction against one of the petitioners, for whom these conditions were not fulfilled.

    The editors of the journal added the following comment to the Supreme Court's decision: "One admires the meticulous and courageous way in which the Israeli Supreme Court, acting as it did in the immediate vicinity of violence, approached the task of distinguishing between appropriate and inappropriate uses of the executive's security powers. One wonders whether, if security problems in the United States were to reach the same level of intensity, American courts would do as well."

    An answer was recently provided by a federal court in the District of Columbia, in a ruling on a petition filed by foreign nationals under arrest in the U.S. detention camp in Guantanamo Bay, Cuba. The court ruled the petitioners could gain no relief from the court during a time of war - neither as criminal detainees nor as prisoners of war.

    Veteran journalist Anthony Lewis wrote a scathing response to this decision. In a New York Times op-ed ("Marbury v. Madison v. Ashcroft," February 24, 2003), Lewis compared the American ruling to that of the Israeli court, which "has gradually - if not always consistently - developed a determination not to sacrifice the values of freedom in the fight against terrorists."

    He added, admiringly citing Aharon Barak, president of the Supreme Court, that "the real test of [judicial] independence and impartiality comes in situations of war and terrorism. Precisely in these times, we judges must hold fast to fundamental principles and values; we must embrace our supreme responsibility to protect democracy and the constitution."

    Indeed, it is easy to talk of human rights when living in peace and security. The real test comes in times of trouble.

    As was recently noted by the eminent American jurist Alan Dershowitz, many countries have signed the convention against torture, but only one court - the Israeli one - has ordered its government, during a time of emergency, to cease all illegal pressure used on those being interrogated.

    The great interest taken in the Israeli court's rulings on these matters derives from their rareness. Most courts follow the view that says "when the cannons roar, the laws fall silent."

    In Israel, this doctrine has not been accepted and laws don't fall silent, even when the cannons roar.

    True, the Supreme Court rulings won't prevent terrible acts of cruelty in the territories. In a place where a hated occupation army has the upper hand, there will be violence - and the investigation into those suspected of killing Amran Abu Hamediya and of carrying out a vendetta in Hebron sheds horrific light on this chilling reality.

    But that is exactly why it is so important for us to determine, by means of our legal system, the boundary between what is permitted and what is not, even in a time of war and terrorism. And it is all the more important that Israel preserve and protect the very important asset it holds in the eyes of the world - its independent and high quality court.

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