Article

The benefits and dangers of proportionality review in Israel's High Court of Justice

Michael Kleinman

• Emory international law review, Vol. 29, issue 3, 2015, p. 589-635

English

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In the landmark case Beit Sourik Village Council vs. the Government of Israel, the Israeli Supreme Court, sitting as the High Court of Justice (HCJ), grappled with a highly charged question: should a state have to sacrifice its own security to improve human rights? The Court answered in the affirmative and held that certain sections of Israel’s controversial security fence could not be built as planned. In these sections, the loss of human rights outweighed the security benefit of placing the fence through certain villages. Scholars from both sides of the political spectrum have voiced strong opinions about this case, and many of these debates have centered on the determinative aspect of the case: the court’s proportionality review. This Comment will not grapple with politics, nor will it focus exclusively on the Beit Sourik case. Rather, it will analyze this case and similar cases to argue about the theoretical implications of proportionality review in HCJ decisions. Through an analysis of these cases, this Comment will determine the best way that a court could grapple with the issue of balancing security and the right to life and bodily integrity against other human rights.

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