IDI Senior Fellow Professor Yuval Shany explains the increasingly critical relationship between international law and the Israeli legal system, in an article that was published at the end of the third millennium as part of a collaboration between IDI and Walla!, a popular Israeli website.
In recent years, we have witnessed a number of dramatic developments in the field of international law, including an increase in the blurring of boundaries between international law and national court systems. International law's scope of activity has expanded gradually (e.g., the development of norms to regulate activity within respective countries, such as human rights laws and environmental protection laws), and a growing number of state courts apply nowadays international law standards to sensitive political issues once considered outside the bounds of both state and international courts.
Manifestations of this development include the British courts' recent use of international treaties in their evaluation of the compensation claim presented by relatives of an Iraqi prisoner tortured to death by British soldiers in Iraq; the Spanish courts' reliance on international norms to bring charges of 'crimes against humanity' against military figures from Argentina and Guatemala; and the U.S. Supreme Court's rejection of the military court system set up by President Bush for Guantanamo Bay prisoners, which was found to be in violation of the Geneva Convention.
These processes are taking place in Israel as well. In fact, Israel is among the world leaders with respect to the number of references to international law in its Supreme Court rulings and in the "quality" of these references. Israel's sensitivity to international law norms is manifest in the Court's determination to review security situations in accordance with international law standards, and in the central role played by international law in the final rulings. For instance, the Supreme Court based its decisions on international law in cases dealing with the route of the security barrier, the policy of targeted killings, and the detention without trial of Hezbollah operatives in Israel (who were to serve, in part, as bargaining chips to retrieve Israeli captives).
The use of international law in Israel has not been limited to cases related to the Israeli-Palestinian conflict. The Supreme Court also relied on international law in considering questions of extradition, violence against children, integrating children with special needs into the public education system, and human trafficking. It should be noted that the manner in which international law has been implemented in Israel during the past decade differs from the way it was employed in previous decades. In the past, the Supreme Court referred to international law primarily as "comparative law," a set of non-binding reference points with little impact on actual judicial outcomes. In contrast, during the past decade, the court has been increasingly inclined to view international law within the rubric of mandatory laws within the body of Israeli law. Today international law serves as an important tool to interpret Israeli laws and as principal means of assessing the legality of military and government activities.
How can these changes be explained and what are their ramifications? Certainly these trends can be partially attributed to the globalization process and the consolidation of international law enforcement mechanisms. These developments enhance the visibility of international law, "raise the price" of violating international norms, and encourage local courts to consider international law in their decision-making processes. Furthermore, the possibility of conducting legal procedures against Israel and against senior Israeli officials in foreign or international courts (as in the case of the separation barrier, and in attempts to launch criminal proceedings in European courts against Ariel Sharon, Doron Almog, and senior officials involved in the assassination of Salah Shehadeh, the head of Hamas' military wing) provided Israeli courts with the incentive and increased legitimacy to apply international law domestically. The threat of external legal interference prompted the Israeli court to act to reduce the normative gaps between Israeli law and international law, and thereby lessen the likelihood of foreign legal proceedings.
In other words, by applying international law, Israeli courts may obviate the need for foreign courts to interfere with Israeli affairs. Moreover, by implementing international law, Israeli courts can influence the content of international law in an effort to adjust its norms, as much as possible, to fit the needs of the State of Israel and the challenges it faces. Indeed, a number of the Israeli Supreme Court's decisions in the past decade are considered important international precedents (while other Supreme Court decisions sparked controversy outside of Israel).
Still, strengthening the status of international law through judicial practice raises thorny questions regarding the legitimacy of this strategy. The Knesset's limited involvement in formalizing commitments to international laws (in Israel, the government decided whether or not to ratifies most treaties) means that the courts are left to apply international law without public debate and without substantial political support. This activity by the courts has at times been considered "undemocratic." Consequently, it appears that in the coming decade there will be no alternative other than to reassess the rules regulating the process of concluding treaties (as proffered in some of the constitutional proposals currently before the Constitutional, Law, and Justice Committee of the Knesset). This would achieve a better correspondence between the growing status of international law in Israeli courts and the democratic mechanisms for overseeing their integration.
Professor Yuval Shany is a Senior Fellow at IDI and holds the Hersch Lauterpacht Chair in International Law at the Hebrew University of Jerusalem.