Trafic Statistics and Inernational Law

Last weekend a few newspapers in Israel published articles about the notorious Route 443, citing IDF sources who claim that, since the route was reopened to the use of Palestinian cars, in accordance with the Israeli Supreme Court decision, only five Palestinian cars, in average, use it each day (Haaretz in Hebrew, JPost in English). According to the item, sources in the IDF feel frustrated with the fact that 60 million NIS were invested in following the Supreme Court's ruling, mainly in fitting security measures to the mixed use of the route, and they doubt that such an expense was worth the result.
I have to say that, at first, I was pretty surprised by the fact that army officials dare challenging a Supreme Court decision, let alone for its financial cost. The item, that appeared simultaneously in too many media sources to be a reporter's initiative, suggest an IDF criticism directed at the Court for not putting the right price tag on the freedom of movement, or on the free movement itself. 
But, putting aside the troubling notion of an army that claims to know better than to Supreme Court how to balance human rights, isn't there a point to the IDF's claims about balancing expenses with results? 60 million NIS is not a small amount, and proportionality has always been a factor in international and constitutional law. Could it be that the Court really should have not issued a decision that forced the government to spend so much in order to protect so few?
I think that the answer is clearly no, for two reasons. First, the fact that only five Palestinians are using Route 443 every day is due, more than anything else, to the restrictions the IDF is imposing on them while trying to get on and off that road, in the form of checkpoints and blockades. If the IDF itself is the force that is preventing more common use of the road, it simply cannot claim that little use is why the Supreme Court's decision is flawed. Moreover, since the main legal justification of the land appropriations involved in making Route 443 into a highway in the first place was its benefit to local Palestinian population, it seems that alongside the IDF's duty to protect Israeli cars on the road it is also obligated to make it usable to Palestinian cars.
Second, not every financial consideration can be relevant when debating human rights. Although balancing expenses with results should always be a consideration in putting legal obligations on governments, it's clear that not every financial expense should influence the courts' deliberations. For instance, when a court needs to decide whether a government has a duty to provide a free service to its citizens (e.g. free education, free access to water, free health care)  it's relevant to consider how much such a service would cost to the government (and tax payers) before reaching a decision. The courts should definitely acknowledge the limited resources available for allocation by their orders, and not impose a financial obligation that they find unreasonable. But these financial, utilitarian considerations can only be taken into account when they are intrinsic to the right involved, so much that it is the actual right itself. The right to free education, for instance, is the government's duty to provide educational services free of charge. Since education costs money, the right to free education is, in fact, the government's duty to pay for its citizen's education. Whether or not such a right exists should depend, to an extent, on how much that duty would cost.
Freedom of movement, however, is different. The duty it imposes on the government is the duty to refrain from blocking a citizen or resident's movement. This duty is not expensive. The 60 million put into allowing Palestinians free travel on Route 443 did not pay for the governments efforts in refraining from blocking the road. Rather, it was put into balancing the free movement - the right that the Supreme Court found to be illegally infringed - with other important interests, such as security and protection of others (let alone illegitimate interests of Israeli settlement). In fact, rather than enabling free movement, the amounts spent by the IDF were put into security measures that restrict that right. Without even going into whether these restrictions are legitimate or not - they are clearly not intrinsic to the freedom of movement itself. The cost, then, is not the right the Supreme Court ruled on. Therefore, it cannot be a relevant consideration in deliberating the protection of the right itself.
To put it in different words, if someone in the IDF thinks that 60 million NIS is what it costs to follow the Supreme Court's decision, it is up to the IDF to reconsider the measures it decided on. deciding on human rights should be left to the court.

Is Gay Equality Equal?

A few days ago the Israeli Supreme Court issued a decision that forces the Jerusalem Municipality to fund the Gay Rights March organized by the local glbt (gay, lesbian, bisexual, and transsexual) organization - the Jerusalem Open House (Ynet report here, the full decision in Hebrew as a pdf file here). This decision is great news, I think, for anyone who supports glbt rights and equality. However, when I read the decision I felt troubled by it. In pragraph 54 of the decision, Justice Amit mentions that "the Israeli law regarding the gay community and its members reflects the changes that the Israeli society had gone through over the years. The Israeli society believes that the law must be indifferent to sexual orientation..." (my translation). Then Justice Amit goes over important milestones in the history of the gay struggle for legal equality in Israel and concludes, in paragraph 55, that "there's no wonder that scholars described the 1990's as the 'gay decade'... it should be mentioned that Israel's approach towards its gay population is one of the ways in which it proves it is a democratic and liberal state, unlike all other near and far states in the Middle East..." (again my translation).
Without addressing the motives of Justice Amit to compare Israel to its neighbors where such a comparison is completely irrelevant, these comments made me feel like Justice Amit, writing for the court, doesn't see glbt equality as a matter necessitated by a basic principle of justice. Rather, it is an expression of a public opinion that should be praised for its liberalism and acceptance. It should be appreciated.

And if you think that this is only an Israeli thing - yesterday the U.S. Senate voted against a bill that would allow to repeal the 'don't ask don't tell' policy of the U.S. armed forces (here). What I found amazing is not that the bill was repealed but that the bill itself made the repeal of the policy dependent on the outcome of a poll conducted by the Pentagon to survey the opinions of soldiers and find out if the change of policy would not hurt troop morale.

Somehow, glbt equality seems to be perceived as different from women's equality or racial equality. There were always people against them - but I don't think that those supporting them felt like they are doing someone a favor or that such equality depends on public opinion or the willingness of the voters to accept such equality. Is equality something that everyone deserves or does equality depend on the current beliefs of the crowd? Cause if equality should only be given to those who the public sees as equal - doesn't that make equality redundant? I mean, equality is worth something only if the political institutions are forced to provide equal rights to those that the public desires to discriminate. Otherwise, is equality a protection against discrimination at all? Is it even a right?

The Rock It Cannot Lift

In his book, "The Concept of Law", H.L.A. Hart asks if a legislative body can bind itself and its successors by transferring legislative powers over specific issues to a new and different body:

"[I]t might be conceded that Parliament might irrevocably alter the present constitution of Parliament by abolishing the House of Lords altogether... It might also be concede, as Dicey says, that Parliament could destroy itself totally, by an Act declaring its powers at an end and repealing the legislation providing for the election of future Parliaments. If so, Parliament might validly accompany this legislative suicide by an Act transferring all its powers to some other body, say the Manchester Corporation. If it can do this, cannot it effectually do something less? Can it not put an end to its powers to legislate on certain matters and transfer these to a new composite entity which includes itself and some further body?... It is quite possible that some of the questionable propositions... will one day be endorsed or rejected by a court called on to decide the matter." (pp. 151-152)

Yesterday, the Supreme Court of Israel decided on a strikingly similar matter. In a case questioning the constitutionality of an amendment to the law that made it possible for the state to privatize its prisons, the Court ruled such transfer of authority to be unconstitutional. The State, according to the Supreme Court, not only has the right to use hold a person prisoner if he or she committed a crime, it also has the duty to execute that right by itself and not delegate it to others. In what is pretty much an international precedent, the Court ruled that, with regards to certain issues, the government is incapable of stripping itself of its powers and transfer them to others, since no other body but the state itself is capable of balancing the proper interests of state and the individual.

It's easy to think of this ruling as dealing with human rights of prisoners, as even some of the Justices do. But I think the real question that was answered here is not 'what are the prisoner's rights?', but, rather, 'what is a state?'. So far, constitutions restricted governments only in what they are allowed to take or deprive their citizens. This, however, is an unprecedented decision about what the government must provide. While constitutional law was thus far focused on keeping governments small, this decision is focused on making sure the government won't grow too small. The truth is, that - as Justice Levi writes in his dissenting opinion - conditions in state prisons are sometimes so bad that prisoners might be better of in private hands. Nonetheless, the court decided that the government simply doesn't have the power to give away some of its powers to others.

Much like in the question whether an almighty god can create a rock he himself cannot lift, the Israeli Supreme Court was faced with the question which kinds of rocks can the parliament create. Yesterday it decided that there's a new kind of rocks that are has to be left on the ground.


Here is the Court's ruling (Hebrew) and a brief report (Hebrew and English).