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Israel's Supreme Court is looked to internationally for its expertise in balancing the need for security in the face of terrorist threats with the human rights protected in a democracy, according to Supreme Court President Dorit Beinisch. Beinisch spoke about the challenges the court has faced regarding issues like administrative detention, deportations, limitations on freedom of movement, and the security fence at the yearly Donald S. Bernstein '75 lecture, titled "Defending Human Rights in Times of Terror" April 16 at Princeton University.

Beinisch has presided for nearly three years over a court that is very different from the United States Supreme Court. Whereas the U.S. court hears a limited number of cherry-picked cases each year, the Israeli Supreme Court, as the highest court of appeal for all cases, hears about 5,000-6,000 every year. The Israeli court also serves as the high court of justice, and in that capacity exercises judicial review over other branches of government, including the military, and grants relief on issues of justice. As a result, its decisions touch on nearly every aspect of public life in Israel.

Further complicating the court's work is the fact that Israel lacks a single coherent constitution, relying instead on nine basic laws in conjunction with international law, where applicable. And of course the court is working in a social context where many will not agree with its findings.

The court sits at a nexus between security needs and human rights. On the one hand, said Beinisch, "the public demands security, and the government is under pressure to protect the public and to ensure it has a peaceful and a safe life." While acknowledging security needs, however, the Supreme Court must also preserve democracy. She explained, "We recognize the duty of the judiciary to guarantee that a nation fighting for survival will not sacrifice those very values that make the fight worthwhile. If the state doesn't protect human rights in times of emergency, it may lose its democratic character in times of peace."

Maintaining that "the battle against terrorism must be fought within the law," Beinisch outlined principles that guide the court's decision-making.

First of all, the court offers broad access to all segments of the Israeli population, including Palestinians in the West Bank and Gaza. "The court is open to people seeking redress to the government and the military, even in the territories," she said, adding that civil rights groups have standing to challenge measures taken against Palestinians in the territories.

Secondly, the court is willing to apply judicial review to both the Israeli government and military, determining whether security measures are proportional. Although the state sometimes argues that the court does not have standing in issues of security, Beinisch disagreed. "When there is a claim of direct violation of human rights, it is always in our purview," she said.

She explained that the military institutes security measures, not the court, but the court judges whether the measures are taken out of necessity and whether they are reasonable and proportional to the security need. "If they are meeting these guidelines, there is no justification for our intervention," she said. "But 'security concerns' are not magic words that the court accepts whenever they are raised."

The court must often exercise judicial review in real time. During the war in Gaza and as the security fence was being planned, the court examined issues as they were raised. In some cases, for example, the route of the fence was changed based on decisions by the court.

The court was also asked by residents of Gaza and civil rights groups to consider whether the embargo on electricity and fuel contradicted basic human rights. The court determined that, even though the state did not have a duty to look after the welfare of the citizens of Gaza after its withdrawal -- because of the long-term relationship and Gaza's dependence on the electricity, Israel needed to supply some electricity. But because of the continuing terrorist attacks, it was under no obligation to supply unlimited electricity and fuel.

Adding that the court had to make decisions during the war with regard to medical assistance and water supply, Beinisch observed, "The law is not silent before the guns of war."

Another principle followed by the court is to use international law as substantive law and as a guide. In looking at targeted killings, for example, the court determined that, under the Geneva Conventions, members of terrorist organizations have the status of civilians, except at such times that they are taking direct part in hostilities.

Because the conventions do not give guidance in the gray areas entailed by this definition, the court follows four principles when dealing with these cases.

First, it can only make a categorization on well based, strong, and convincing information.

Second, a civilian taking a direct part in hostilities cannot be attacked if a less harmful means can be employed.

Third, after an attack on a suspect civilian, the target's identity and the circumstances are subject to a thorough retroactive, independent investigation, with compensation paid for harm caused to an innocent civilian.

Fourth, every effort must be made to minimize harm to innocent civilians. "In a democracy, the fight against terror must be subject to the rules of law," said Beinisch.

Born in Tel-Aviv, Beinisch earned her bachelor's and master's degrees in law at the Hebrew University. She started her career in public service in the Ministry of Justice, serving as senior attorney in the Criminal Law Department and director of the Department of Constitutional and Administrative Law. In 1982, she became deputy state attorney and six years later, state attorney of Israel. She was appointed as a Justice of the Supreme Court in December 1995.

Beinisch noted that the court is not popular in some segments of Israeli society, and politicians have introduced legislation to narrow the court's jurisdiction on security issues. She is concerned that such a narrowing would limit the court's entire scope and that other Israeli courts do not have the means to protect human rights violations. Noting that the court does not initiate cases, but only responds to matters brought before it, she expressed grave concern with efforts to limit the court's jurisdiction.

"A democracy that ignores basic issues of human rights is likely to give terrorism the victory that it seeks," she concluded.