Israeli Judge Speaks to Critical Crowd

Israeli Supreme Court Justice Ayala Procaccia portrayed her court as a moderating force in Israeli politics—to vehement criticism from some audience members—in a speech at Harvard Law School (HLS) yesterday.

Procaccia said she aimed to show the audience the difficulty of combating terrorism from the perspective of another liberal democracy.

Throughout her speech, Procaccia emphasized the role of the Court as a mediator in Israeli politics, saying that “the Court is often confronted with balancing security and military issues with those of human rights and individual liberty.”

She said that ultimately the Court is respected because, she believes, “there is a deep public trust in the judicial process in Israel.”

For the assorted audience of nearly 50, Procaccia gave an overview of the role of the Supreme Court in Israeli society and the tests that the Court employs in order to adjudicate controversies.

Procaccia said that her court hears roughly 12,000 appellate cases each year—compared to 100-150 for the U.S. Supreme Court.

She also spoke at length about several prominent controversies, including the recent rerouting of Israel’s security barrier, the use of torture and other interrogation methods by Israeli authorities, and the detention of foreign nationals.

“[The court has ruled] that there was no legal basis for the use of any physical means under current [interrogation] law,” she said. “Holding detainees for 12 days without a hearing is [also] contrary to law.”

But Procaccia was questioned by several members of the audience, some of whom criticized the Court’s “balancing-test” approach to cases.

Darryl C. Y. Li ’01, who served as a fellow at Human Rights Watch in 2003 and 2004, sharply questioned Procaccia about her court’s “watering down” of international human rights safeguards through its balancing test.

Li referred to Procaccia’s support for a 2002 decision that allowed the practice of punitively demolishing Palestinian homes.

“This practice has been universally condemned as collective punishment, a violation of the Fourth Geneva Convention,” Li wrote in an e-mail to The Crimson after the event.

“Ironically, the Court’s justification relies on British colonial emergency regulations that were themselves used to repress the Zionist movement,” he wrote.

Li added that even the Court’s decision to end torture is “deeply flawed and has holes you can drive a truck through” because it allows for The Knesset, the Israeli parliament, to pass a law explicitly authorizing torture.

“For decades, the Court has been rubber-stamping human rights violations,” Li wrote. “[This] ultimately benefits no one.”

Several other questioners said they shared Li’s criticisms of the Court’s approach.

Prior to the event, Procaccia had lunch with faculty members, including Harvard Law School Dean Elena Kagan, and hosted a discussion on the role of the courts in Israel.

Her speeches were co-sponsored by three HLS initiatives, the Program on Negotiation, Human Rights Program, and the International Legal Studies program.