In recent years, the interpretation given by the Supreme Court to the rules of international humanitarian law have been more in line with the accepted opinion of international experts in the field, Supreme Court Justice Dorit Beinisch said earlier this week.
This, she continued, has been demonstrated in a series of decisions taken by the court during the period of the so-called Aksa intifada, despite the fact that these years have been among the most difficult from a security point of view because of the flood of terrorist acts.
Beinisch was speaking at a symposium held by the Hebrew University's Forum on International Law. The justice, who is expected to succeed Aharon Barak as president of the Supreme Court at the end of the year, indicated that she strongly supported the direction that Barak had moved the court regarding the status of international law.
Beinisch said Israel has been forced to take international humanitarian law into account since it captured the West Bank, Gaza and other territories during the Six Day War. The entire system of military government in the occupied territories, in which the military commander is responsible for security and order and for the welfare of the occupied population, is based on international humanitarian law.
During the ensuing decades, the international community accepted some of the court's rulings and rejected others as violations of international humanitarian law.
"Today," Beinisch said, "I think the Supreme Court's interpretation of international law comes closer to the accepted interpretation of the international legal community."
She added that no other court in the world had as much experience in dealing with international humanitarian law as the Supreme Court, and that many democratic countries were trying to learn from Israel how to cope with terrorism within the restrictions of the law.
"There is no other country that applies international humanitarian law like the Israeli Supreme Court does in terms of the scope of the issues raised and the interpretation and application of the law," she said.
"Terrorism has caught many countries by surprise and their national courts were unprepared to deal with it. They do not have the experience that Israel does of a democratic country which approaches international humanitarian law on the basis of democratic values, including the use of balancing mechanisms contained in international law and also in human rights legislation in Israeli law which developed simultaneously."
According to Beinisch, other countries have been taking a great interest in the Supreme Court's rulings and interpretation of international humanitarian law.
Two notable examples of the Supreme Court's greater adherence to international law of late, Beinisch said, were its landmark rulings in the Beit Surik and Alfei Menashe cases involving the separation barrier, and the Ajouri case, involving the expulsion of Palestinians from the West Bank to Gaza.
In the former, the court stressed the importance of finding the proper balance between Israel's security needs and the responsibilities of the area commander for the welfare of the Palestinians. As a result, the court approved the separation fence in principle but ordered the route in the Beit Surik area to be changed. In another case, involving the fence around Alfei Menashe, the court respectfully addressed the ruling of the International Court of Justice against the separation fence, but rejected its decision. At the same time, it ordered the army to tear down the existing fence and build another one closer to the built up area of Alfei Menashe.
In the Ajouri case, the court ruled that the army could not force members of the family of a terrorist to move from the West Bank to Gaza as a deterrent punishment, since they had personally done nothing wrong.
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