Human rights in times of terror – a judicial point of view

Abstract

This paper, delivered as the Second Scarman lecture, argues that the role of a judge on the Supreme Court of a democratic state is to protect both the constitution and the democracy. Judges in modern democracies should protect democracy both from terrorism and from the means the state wishes to use to fight terrorism. Judges meet their supreme test when they face situations of war and terrorism. The protection of human rights of every individual is a duty much more formidable in situations of war or terrorism than in times of peace and security. But if judges fail in their role in times of war and terrorism, they will be unable to fulfil their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace. The paper explores these issues through an examination of the need for a balanced and proportionate approach and by using illustrations from the example of the Israeli Supreme Court, with a focus on the role of judicial review in the ‘war on terror’.