Fighting terrorism within law a daunting challenge

GEOFF SIFRIN

“We see our [the Supreme Court] role as the guardian of human rights even of those who are terrorists and the enemy; by the checks and balances put on our armed forces who must understand and abide by our rulings.

“The concept of ‘proportionality’ is lively in international law, particularly during the recent Gaza conflict when it was the subject of much debate – how to fight terrorism without causing harm to the civilian population, especially when terrorists are using schools and hospitals and tall buildings to fire from.

“So the court developed regulations, implemented by the military and government (there is no question that they must abide by the decisions of the Supreme Court). Even the Red Cross whose role is to protect civilians, says it is difficult to apply this proportionality. But the point is that any legal issue in any realm is subject to the scrutiny of the court.”

There are three elements to proportionality, he says: The measure used should conform to the military aim; the option which is less harmful to citizens must be used; and there should be a proper proportion between the benefit from the action and harm caused to civilians.

“Once when I was attorney general in 2003, a group of security generals told me they had intelligence that a gathering of the main Hamas leaders would take place in a building in Gaza. We knew there were civilians in the building and we decided not to allow an attack, although we could have done away with the whole leadership of Hamas.

“Now in Gaza we use SMSes, flyers, and so on – these are all for the proportionality – to tell people we are going to shoot at the building, and they should leave the building. There is also the big question of who are the terrorists? They don’t wear uniforms.”

Rubinstein was asked by a questioner from the floor whether there was not a better principle than proportionality – which is a vague concept – to regulate the military’s behaviour. For example an absolute “red line” where you cannot fire on a hospital or similar institution under any circumstances.

Rubinstein replied that a commander in the field facing firing of missiles from a hospital had to make the decision whether it still was in reality a hospital and what the best response would be.”

He addressed another question – legal options available to Palestinians suspected of terrorism who are in administrative detention. “They have two military courts to appeal to, but if they petition our Supreme Court, three justices of the court will sit on any individual case.

“This is necessary because they are detained on the basis of intelligence, which cannot be put into open trial – whether human intelligence or electronic. So three justices will sit with the full intelligence file and go through it page by page on the opinions of the military and security services, to see if the detention is appropriate.

“This question of legal oversight applies not only to Gaza, but the fight against Palestinian terrorism over many years. We live within the reality in Jerusalem, not somewhere in Cape Town or New York… but our goal is to make sure that our security forces, our military are working within the law. Terrorism keeps changing its methods, sometimes stones, sometimes suicide bombers – in the early years of the former decade it could be coffee shops exploding or buses exploding.”

While the Supreme Court is there primarily to address Israeli legal questions, in 1967 it was decided to open the court to [non-Israeli] Palestinians from the occupied territories, so they could petition it on issues relating to their rights. The court also does not require ‘standing’, that is, the petitioner does not have to show any personal connection to the case – ‘locus standi’.

Since 1980, the court has received hundreds of petitions every year on various issues connected with Palestinians’ rights. Such as detentions, the security fence, and so on. The procedure is that three justice’s deal with every case.

“Regarding the security fence [erected roughly along the Green Line to prevent terrorists entering Israel from the territories], the International Court said – without any factual basis – that the fence was illegal. So there were petitions to our court, that it was hurting the life of Palestinians around the fence.

“The court decided in a number of cases, that by international law (Israeli law incorporates international law, the fourth Geneva Convention, and so on), the purpose of the fence was to defend our people – the first obligation of a government.

“So the idea of the fence as a barrier to terrorism was fine. But we had another obligation, to the Palestinians according to the Hague Convention and others. So the court said the fence must be rerouted to cause less interference to the Palestinians and more gates should be opened for them to move. We kept the principle of the fence, but also paying attention to the needs of the Palestinians.

The vigorous arguing after Rubinstein’s session illustrated how complex legal oversight of the military was in practise, including the core issues of how one actually defines terrorism.