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Israeli High Court Rulings on the Security Wall

National and International Effects

Udi Sommer

With the ever-growing significance of international law both domestically and internationally, courts mediate much of the give and take between the international system and the national political arenas, thus acting in settings where global and local are mixed. Such a pivotal position, I argue, lends courts the ability to maximize a twofold utility, which is inextricably linked. First, on the international level, judicial institutions play an increasingly important role and form what is essentially a transnational epistemic community. Second, on the domestic level, courts capitalize on this pivotal position to become increasingly central in the decision-making process, forming alliances with other domestic players and thereby securing the implementation of judicial rulings. A case study of decisions of the Israeli Supreme Court concerning the security fence Israel built around the Occupied Territories is offered as an empirical test for the Court-Pivot Dual Utility Model that I present in this article.

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Udi Sommer

This article analyzes decision making in national security cases on the Israeli Supreme Court and draws broader comparative conclusions. In the post-9/11 era, security has topped the national agendas in numerous established democracies, with repercussions involving their courts. Analyses of decision making on national security in Western judiciaries may benefit from lessons from the Israeli Court, which has been a pivotal player in this domain. A formal model analyzes how internal court institutions plus the rationality of individual justices are conducive to strategic Court behavior. Predictions are tested empirically using an original database with security decisions from 1997 to 2004. The findings indicate that constitutional design, Court leadership, ideology of the ruling coalition and interest group activity have influenced decisions of the Israeli Court on national defense. This study builds on and expands existing scholarship on the complex links among law, politics, and national security in Israel and beyond.

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Tamar Morag

In the early 1990s, soon after Israel had ratified the UN Convention on the Rights of the Child, the Israeli Supreme Court issued several rulings that focused on the issue of children's rights, which would now be addressed as a fundamentally new doctrine. Presented as reflecting a significant change in the attitude of the case law, this doctrine was ascribed to the ratification of the Convention and to the enactment in 1992 of Israel's Basic Law: Human Dignity and Liberty. In this article, I argue that the recognition of children as rights bearers is not new and that signs of it are evident in the Court's case law dating back to the early years of Israel's existence. The development of the case law, however, has not been linear. In this article, I analyze the spiral progression of this process and suggest explanations for the particular course that Israeli case law has taken with regard to the recognition of children's rights.