The Israeli Supreme Court's Political Role in Matters of National Security

Abstract

In recent years, extensive judicial review has been a constant factor in Israel’s National Security decision making. The Israeli Supreme Court (ISC) handed down several decisions which influenced various spheres of National Security, including reviews of actions taken by the armed forces and the disbarment of specific military policies. This paper asks not why the court reaches the decisions it does, but why Israeli society and its political institutions accept a state of affairs that grants the court full authority to intervene in matters of national security in general and in military matters in particular. I base a possible answer on theories of the “rational choice” or “public choice” approach to legal institutions. My main claim is that Israeli society in general, and the political elected branches of government in particular, gain from the independence and intervention of the court,: First, the court serves as a monitoring mechanism of the public over its elected officials, and as a monitoring mechanism of both the public and political institutions with regards to the activity of the military and other security institutions. Second, elected political branches, and especially the Knesset, the Israeli Parliament, find it useful to delegate decisions to the ISC because of their reluctance to arrive at unpopular decisions, or their inability to overcome political interest groups capable of influencing the decision-making process.