Israeli Supreme Court's Judicial Oversight Creates Parallel Command Chain in Military Decisions
The Israeli Supreme Court (High Court of Justice) exerts significant influence over military and security policies through judicial review, even when it formally rejects petitions. This influence shapes the behavior of the military, prosecution, and political leadership by imposing legal scrutiny on operational rules, such as the rules of engagement along the Gaza border. For example, in 2018, the court rejected petitions against the opening fire orders but required the state to justify these orders under international law, leading to stricter military guidelines and uncertainty among soldiers during critical moments.
This dynamic creates a "parallel command chain" where military officers consider not only operational needs but also what the military prosecution and the court’s legal department will approve. This judicial oversight extends beyond formal rulings into informal pre-litigation processes known as "pre-GHCJ" (pre-High Court of Justice), where the court’s legal department investigates complaints before petitions are filed, influencing policy behind the scenes without public hearings.
The court’s involvement in operational matters is unprecedented globally, as seen during Operation Defensive Shield when it ruled on issues like the siege of the Church of the Nativity and humanitarian access. Although the court states it does not manage combat or negotiations, its real-time interventions and orders during operations make it a key actor in these events.
Controversies also arise over the court’s role in political-security decisions, such as its partial annulment of the West Bank separation barrier route in the Beit Sourik case, where it ruled on proportionality, a political judgment cloaked in legal terms. Similarly, rulings on targeted killings imposed operational conditions without banning the policy outright, maintaining the court’s power to intervene case by case.
This judicial activism fuels right-wing opposition to state inquiry committees, as the Supreme Court appoints their members despite having shaped the legal framework governing security policy. Critics argue that security decisions should rest with elected government and military officials who bear responsibility and possess the necessary information, while courts should only intervene in clear legal violations. Professor Moshe Cohen-Eliyahu, a constitutional law expert, emphasizes that judges should not act as unelected members of the war cabinet, openly or behind the scenes.
