We are grateful for suggestions and comments by Sharon Asiskovitch, Travis Coan, Ami Glazer, Liora Norwich, Parina Patel, Moshe Shayo, Raanan Sulitzeanu-Kenan, Mark Tushnet, Patricia J. Woods, Asaf Zussman, and the anonymous reviewers of this article.
Judicial Setbacks, Material Gains: Terror Litigation at the Israeli High Court of Justice
Article first published online: 18 NOV 2010
© 2010, Copyright the Authors. Journal compilation © 2010, Cornell Law School and Wiley Periodicals, Inc.
Journal of Empirical Legal Studies
Volume 7, Issue 4, pages 664–692, December 2010
How to Cite
Hofnung, M. and Margel, K. W. (2010), Judicial Setbacks, Material Gains: Terror Litigation at the Israeli High Court of Justice. Journal of Empirical Legal Studies, 7: 664–692. doi: 10.1111/j.1740-1461.2010.01192.x
- Issue published online: 18 NOV 2010
- Article first published online: 18 NOV 2010
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 that 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 an empirical sample 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.