A Supreme Court at the Centre of a Deeply Divided Society
The Foreign Law Clerks scheme was established by Supreme Court Justice Aharon Barak to allow judges access to international perspectives. During my Clerkship I worked directly for Justice Neal Hendel, discussing approaches to cases, drafting judgments, and preparing briefs on foreign jurisprudence (from the UK, USA, Canada, the EU judicature and the European Court of Human Rights). The legal subject matter was diverse, including criminal law, tort, discrimination law, tax law, electoral law, freedom of expression, and public order law.
My reasons for choosing the Israeli Supreme Court were twofold: First, I was interested in working in a legal system which owed its genesis to the British ‘un-codified’ constitution, but had been gradually drifting from these roots. Secondly, my research on counterterrorism law left me curious about a jurisdiction which operates under an ever-present existential threat—Israel has been in a continuous ‘state of emergency’ since 1948, and securitisation affects every aspect of daily life. During my stay there were several terrorist attacks in downtown Jerusalem, and several more in other cities.
In her discussion of constitutionalism, Lerner includes Israel in her taxonomy of ‘deeply divided societies’. For Lerner, Israel ‘is still very far from fulfilling the requirements of a liberal democratic system, and the Israeli polity should be understood in terms of an “ethnic democracy” or even a non-democratic “ethnocracy”.’ The Israeli Basic Law mandates that the State of Israel shall be both ‘Jewish’ and ‘Democratic’, and these values are occasionally at odds with one and other. Coming from a post-independence referendum Scotland, where discussions of national identity were conspicuous by their absence, the ubiquitous discussions of the nature and identity of the state came as something of surprise. Israeli demographics from 2014 recorded that the population was c. 75% Jewish, 20% Arab-Israeli, and around 5% from other identities. The Supreme Court has historically been seen as a defender of the rights of minority-citizens in Israel. Additionally, there is frequent political conflict between the secular and religious communities, in particular the secular and ultra-orthodox Jewish communities.
Unlike the British Supreme Court, the Israeli Supreme Court has a prominent place in the national psyche. Its decisions are divisive. Even as I arrived in Israel in December, the media reported on tensions between the Knesset and the Supreme Court, regarding the length of time asylum seekers could be detained without judicial proceedings, and how this related to the right to liberty.
During my stay I travelled widely, including into the occupied territories over which the Court has jurisdiction. Whilst the inside of the Court is reminiscent of any Western liberal democratic judicial institution, the city of Jerusalem which surrounds it is awash with contradictions: at once ancient and modern, at once as peaceful as a temple, but simmering with discontent.
I was at the Court in a time of transition. The term of the conservative and right-wing Supreme Court President Grunis was coming to an end. In his final judgment, the court held that Mustafa Dirani, a Lebanese Militia fighter, did not have standing to sue for his alleged torture at the hands of the Israeli Defence Forces (analysis available here). The Palestinian Authority also accepted the jurisdiction of the International Criminal Court (ICC) after their bid to secure Israeli withdrawal from the Occupied Territories at the United Nations failed.
As I left Israel a new government was forming with Benjamin Netanyahu continuing as Prime Minister. This could have significant consequences for the Supreme Court. Since 2009, several Bills (including one by Netanyahu’s party, Likud) had been proposed which sought to limit the Supreme Court’s power to invalidate statutes which contravened the Basic Law. Whilst this may seem unexceptional to a British lawyer, it is notable that there is no second chamber in the Knesset, which provides additional protection to human rights, and societal divisions are much more acute. There is also no right of petition to an international court after the exhaustion of domestic remedies, in the same manner as is available in respect of EU law and Convention rights in the UK. The isolation of the Israeli Supreme Court makes its role all the more vital.
There is much to be gained from immersion in another legal system. What we take for granted (or even resent) in our own society comes much more sharply into focus. In this regard OPBP internships can be of great benefit to individuals regardless of whether their long-term goals lie on the front lines of public interest law or the relative comfort of the Ivory Tower.