When does a court systematically deviate from its own principles? the adjudication by the Israel supreme court of house demolitions in the occupied palestinian territories

Guy Harpaz*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

3 Scopus citations

Abstract

The judiciary's counter-majoritarian role in the realm of national security is of paramount importance. By and large the Israel Supreme Court has taken cognizance of this truism and has imposed significant procedural and substantive restrictions on the Israeli military authorities, relying more and more on public international law. Yet when faced with house demolition measures, it has adopted a different stance, preferring to conduct a judicial review which is devoid of any meaningful scrutiny of the measures according to international law. The article attempts to ascertain the reasons for the Court's different judicial position, by advancing, inter alia, legal, historical, socio-political, and personal reasons, reasons relating to the nature of the petitioners, as well as those pertaining to the intertwined concepts of status quo bias, omission bias, and loss aversion. The findings of the case study may be relevant to other courts, in other countries. When faced with deterrent measures that are employed at times of severe security threats and that are strongly supported by the political establishment and by the public, courts may find it difficult to perform a counter-majoritarian role and to abide by their own judicial doctrines and principles.

Original languageAmerican English
Pages (from-to)31-47
Number of pages17
JournalLeiden Journal of International Law
Volume28
Issue number1
DOIs
StatePublished - 27 Jan 2015

Bibliographical note

Publisher Copyright:
© 2015 Foundation of the Leiden Journal of International Law.

Keywords

  • Israel Supreme Court
  • house demolitions
  • judicial coherence
  • laws of belligerent occupation

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