A brouhaha has been raging within the legal community here in Israel since Prof. Daniel Freidman was appointed justice minister a year ago. From Day 1, he declared his intention to make changes in the Supreme Court and the judicial system in general.

He has since set about drafting bills and proposals in this vein, and a serious rift has ensued between him and Supreme Court president Dorit Beinisch. Politicians, lawyers, professors, journalists and former justices have joined the fracas. Some very injudicious words have been spoken. There is talk that some of these plans, if put into practice, might even bring down the government (if the Winograd Committee’s report on the mishandling of the 2006 Lebanese war doesn’t do so beforehand).

Freidman’s wrath was further piqued recently when the Supreme Court issued an injunction prohibiting the state from cutting the electrical supply to the Gaza Strip, as a proposed response to the continued Qassam missiles barrage on the town of Sderot and other parts of the western Negev. It ordered the state to re-think its decision and bring it more in line with rules of proportionality and reasonableness.

Soon afterward Freidman stated his intention to introduce rules of nonjusticiability (issues that can’t be subject to legal ruling) aimed at curtailing the Supreme Court’s authority to review government agencies’ actions when these deal with security, political and fiscal matters. In his view, these are areas that should not be within the courts’ discretion. Let’s examine the issue.

Israel’s Supreme Court has a unique role when it sits as the High Court of Justice. As noted on the Court’s website, in such cases, the “Court rules as a court of first instance, primarily in matters regarding the legality of the decisions of state authorities: government decisions, those of local authorities and other bodies and persons performing public functions under the law. It rules on matters in which it considers it necessary to grant relief in the interest of justice, and which are not within the jurisdiction of another court or tribunal.” Cases coming before the Court under this jurisdiction are often high profile, especially when top level government decisions or officials are challenged.

Taking security-related issues out of the High Court’s jurisdiction would be imprudent. I have had considerable experience for some 25 years as a legal advisor in the Israel Defence Forces, culminating in 2004-2007 when I served as the legal advisor to the IDF in Judea and Samaria. During this period, many decisions regarding West Bank issues were challenged in the High Court – between 400 and 500 in 2006 alone. Petitions dealt with a variety of topics, including means and methods of warfare, different aspects of the security barrier between the West Bank and Israel, Palestinian travel restrictions, family reunification in Israel and the West Bank, land seizures, administrative detentions, the dismantling of unauthorized Israeli outposts, the myriad issues relating to the renewed Jewish community in Hebron.

Military commanders are often exasperated by these petitions. They are sticks in the spokes of the military administration, slowing or halting its machination. They require many lawyers and long hours to prepare adequate responses. However, making these issues nonjusticiable would be unwise. These petitions keep decision-makers honest, understanding that their powers are not boundless. Don’t misconstrue. It’s not that they are immoral or insensitive to the potential victims of their actions. But knowing these actions may be challenged legally, they more carefully balance between the military necessity of their plans and the impact these might have on individuals and their legitimate rights.

The military seldom loses cases brought before the Court, because most of its actions have firm legal grounds. But the Court doesn’t always rule in the military’s favour. Judges’ remarks during court proceedings sometimes lead to plans being modified or abandoned, making adverse rulings superfluous.

And there’s another important rationale. Israel’s Supreme Court has an excellent international reputation. In an era when IDF officers are unjustifiably being threatened with international indictments and cases are brought against Israel in the International Court of Justice, it is imperative for both the IDF and the state that the highest court in the land adjudicates objectively on these often sensitive matters. When the court rules in its favour, the military’s actions gain legal and moral credence from a highly respected tribunal.

Wherever Beinisch and Freidman take their other differences, Freidman must shelve his plans on this specific issue.