Israel , Guy Shani, The Constitutional Rights of Foreigners in Israel

human rights. The fact that Israel is experiencing an almost permanent state of
emergency complicates this delicate balancing act even further.
From the outset, it was clear to the Court that, in spite of the security difficulties
facing Israel, it had to ensure that the State acts within the rule of law. On the domestic
plane, this meant upholding administrative and constitutional law; on the international
plane, this meant adhering to international law and principles. While the Israeli Supreme
Court recognized that human rights cannot serve as a tool for national destruction, it
also stressed that national necessity cannot justify widespread infringement of human
rights.
Critics of the Court argue that security considerations must prevail when they
conflict with human rights. The Court's jurisprudence on this point is clear. A state of
emergency does not justify the neglect of legal norms and constitutional values.
Although the Court acknowledged that it lacked military expertise and refrained from
interfering with military considerations per se, it did not hesitate to intervene in what it
considered to be its area of expertise and responsibility: the considerations of equality,
human dignity, and freedom. Thus, the Supreme Court was faced with the daunting
challenge of striking a balance—which may vary from case to case—between these two
eminent and clashing considerations.
To illustrate this point, I will describe an Israeli Supreme Court case that
concerned the issue of interrogation methods, requiring the Court to balance the
interests of national security with the human rights of Palestinian suspected of being
involved in terrorist activity. 8 The case dealt with the General Security Services, the
8 HCJ 5100/94 Public Committee Against Torture in Israel v. Israeli Government [1999] IsrSC 53(4) 817.
8