Judicial Setbacks, Material Gains: Terror Litigation at the Israeli HCJ

45 Pages Posted: 5 Jul 2009 Last revised: 7 Apr 2015

See all articles by Menachem Hofnung

Menachem Hofnung

Hebrew University of Jerusalem - Faculty of Science

Keren Weinshall

Hebrew University of Jerusalem - Faculty of Law

Date Written: July 3, 2009

Abstract

Recent research indicates that even in countries with strong judicial review, supreme courts have proved reluctant to oppose restrictions on civil liberties in times of war, or in crises which resemble war-like emergencies. Accordingly, most research conducted on the Israeli High Court of Justice argues that despite using the rhetoric of human rights, the HCJ rarely intervenes in security-based decisions targeted to prevent terrorist activity.

Our research, based on empirical samples of cases litigated at the HCJ in 2000-2008, argues that the picture is more complex, and that in fact the Israeli Court does play a significant role in reducing human rights violations. Although in most cases the HCJ does not overtly intervene in the decisions of the security authorities, we show that the Court’s decisions on terror contain an implicit, yet no less important facet in preventing numerous harmful decisions. We further test the relationship between the overt and latent nature of the HCJ’s power, and show how different political and security conditions, such as the public mood or the occurrence of deadly terror attacks, affect justices’ decisions to reject a petition, openly accept it, or intervene more latently in the security authorities' policies.

Keywords: Law & Politics, Courts & Judges

Suggested Citation

Hofnung, Menachem and Weinshall, Keren, Judicial Setbacks, Material Gains: Terror Litigation at the Israeli HCJ (July 3, 2009). CELS 2009 4th Annual Conference on Empirical Legal Studies Paper, Available at SSRN: https://ssrn.com/abstract=1429330 or http://dx.doi.org/10.2139/ssrn.1429330

Menachem Hofnung (Contact Author)

Hebrew University of Jerusalem - Faculty of Science ( email )

Jerusalem
Israel

Keren Weinshall

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, 91905
Israel

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