Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice during the Intifada

Abstract

Many studies suggest that courts fail to protect individual rights since they support and uphold state repressive practices during periods of emergency or confrontation. Previous studies focused on judicial policies as reflected injudicial declarations and decisions that were fully disposed by judges and officially published. I argue that the study of out-of-court settlements and the comparison between the outcomes of settlements and the judicial rhetoric are key to understanding the behavior of courts in times of national crisis. At such times, courts may hesitate to openly confront the government on the issue of minority rights, but they may strive to protect minorities by exerting pressure on the governmental legal apparatus and by effecting out-of-court settlements more favorable to minorities than official decisions. Thus, courts influence social practices while avoiding government or public opinion counterreactions that would impair their institutional autonomy. This argument is demonstrated in a case study of the Israeli High Court of Justice during the Palestinian Intifada.

A Strategic Court and National Security: Comparative Lessons from the Israeli Case

“…Th e Court deals with major issues on the national agenda (Bogosh and Holzman-Gazit 2008;Negbi 2004, Rattner andFishman 1998;Saban 1996;Shamir 2000;Sharfman 1997) and serves as a deliberative body giving reason to political occurrences in a democratic polity, in which political bargains have oft en taken the place of democratic deliberation (Dotan 1998). Over the years, the HCJ has increasingly gained power, resolving complicated issues, with its decisions resonating in public and political spheres.…”

“…A logistic regression is then used to analyze extralegal infl uences on strategic behavior of the Court within the theoretical framework off ered in Barzilai (2004). Although previous studies have argued that the ISC is strategic (Dotan 1999;Shamir 1990;Sommer 2009;Yadlin 2003), this article is the fi rst to both formalize the panel system that governs the collegial game and quantitatively analyze the decision on the merits.…”

Government Lawyers and Non-judicial Constitutional Review in Estonia

“…While some comparative study of the role of government lawyers in the adjudication process has been conducted (see Clayton, 1995;Epp, 1998;Dotan, 1999b;Layton, 2001), comparative analysis of the role of extra-court, governmental legal actors on constitutional adjudication by a national court is a still emergent enterprise. Review of the literature in the preceding section suggests that theories accounting for the influence of one government actor, the Solicitor General, on the decision making of the US Supreme Court might usefully be applied to understand and assess similar influence on constitutional adjudication by government lawyers in non-US court contexts.…”

Judicial Behaviour: A Socio-Cultural Strategic Approach—Conceptual Framework and Analysis of Case Studies in IsraelAssaf Meydani teaches at the Academic College of Tel Aviv Yaffo, Israel.

“…With regard to the discussed cases we may see the role of the Israel Land Administration as controlled by the agenda designed by the Kibbutzim and Moshavim 53 and by the GSS, which have interests identical to those of the Israeli prosecutors. 54 Another type of bureaucrat is the Supreme Court, which plays a significant role in the determination of public policy on human rights.…”