"In times of change and danger when there is a quicksand of fear under men's reasoning, a sense of continuity with generations gone before can stretch like a lifeline across the scary present."
- John Dos Passos

"Democratic nations should conduct the struggle against terrorism with a proper balance between two conflicting values and principles. On one hand, we must consider the values and principles relating to the security of the state and its citizens. Human rights are not a stage for national destruction; they cannot justify undermining national security in every case and in all circumstances, Similarly, a constitution is not a prescription for national suicide. But on the other hand, we must consider the values and principles relating to human dignity and freedom. National security cannot justify undermining human rights in every case and under all circumstances. National security does not grant an unlimited license to harm the individual."¹

^- Justice Aharon Barak, President of the Supreme Court of Israel.

Traditional wartime protocol is not always effective in combating terrorism. Today's democratic societies are challenged by threats of terrorist warfare which aim to strike at democracy itself. Dealing with this type of activity in a swift and resolute manner without causing damage to their democratic values is a formidable task faced by these nations. Each country struggles within its own cultural and political identity to find its own just solution to this issue. Israel is no stranger to this dilemma.

As a state committed to the protection of the values of individual freedoms and human dignity, Israel is impelled to respond to the constant onslaught of terrorist activity, violence and propaganda against it in a manner that complies with the rule of democratic law. The Supreme Court of Israel has played an integral role in the fight to maintain the nation's democratic principles. In the words of the President of the Supreme Court, Justice Barak, "(T)he struggle against terror - is to occur 'inside' the law, and through the tools that are lawfully approved as appropriate for a democratic state."

Many times the Court defends positions that are contrary to opinions held by some public and political figures in Israel. Due to Israel's singular position as a true democracy in the Middle East and the fact that the continuance of the wave of terrorism against the state threatens Israel's very existence, swift and resolute measures must be taken by its security agencies to protect the Israeli public and prevent further attacks. Sometimes, the means of protection come into direct conflict with the individual rights of those engaged in terrorism.

Justice Barak recognized this issue and stated, "While terrorism poses difficult questions for every country, it poses especially challenging questions for democratic countries, because not every effective means is a legal means." About this dilemma, Justice Barak noted that, "one pillar of democracy - the rule of the people through its elected representatives - may encourage taking all steps effective in fighting terrorism, even if they are harmful to human rights... (t)he other pillar - human rights - may encourage protecting the rights of every individual, including the terrorists, even at the cost of undermining the fight against terrorism."

Since the start of the intifada terror campaign in October 2000, Israel has confronted not only terrorist activity in the form of physical violence against its citizens, but has also contended with a media war being fought for the minds of the public in both the national and international arena. Both these forms of attack pose a great challenge to Israel as a state committed to protecting individual democratic values and liberties.

Nonetheless, Israel's resolve to adhere to democratic principles can be seen in its response to attempts made to restrict one of the basic tenets of a democracy, freedom of expression. In this area, Israel has established a method by which a democracy can meet the challenge of a national conflict while concurrently defending the traditions of democracy, in general, and freedom of speech, in particular.

Freedom of expression is one of the most valued principles of Israeli democracy. In 1953, the Israeli Supreme Court, notwithstanding the lack of a formal, written constitution, recognized that freedom of expression was a "supreme right" that derived from the existence of the State of Israel as a democratic entity.

The belief in the paramount nature of freedom of expression in Israel has always been anchored to the recognition that freedom of speech is a necessary and essential tool for the existence of a democracy, and important for the investigation and clarification of the truth through a "marketplace of free ideas." However, balanced against this right is the right of the state to protect its citizenry. Like other democratic nations, when faced with a confrontation between these two rights, the right to free expression must be carefully balanced against the nation's security concerns.

In 1953, just a few years after the State of Israel had ended fighting its War of Independence against an Arab invasion, the Supreme Court issued an important ruling, holding that the government may not shut down an Arab newspaper that criticized the state's actions, even if such criticism was deemed to be harmful. The Court, basing itself in part on American jurisprudence, held that freedom of expression must be respected under all circumstances with the exception of a number of situations in which there is an accumulative danger of near certainty of serious harm to the security of the nation or public order. In the absence of such a "clear and present danger", freedom of expression cannot be restricted.²

The intifada terror campaign, since late 2000, characterized by suicide bombings against Israeli civilians, created a situation where Israel's commitment to providing a free atmosphere of expression was challenged by security concerns.

For example, documentary director, Mohammed Bakri, interviewed Palestinians in the Jenin refugee camp about the fighting that had taken place in April 2002, during which 23 Israeli soldiers and 52 Palestinians were killed. The film only portrayed the Palestinian version of events and did not offer a corresponding view by Israelis who were present as well.

The film was submitted for approval to the Israel Film Censorship Board as required by the 1927 Cinematographic Films Ordinance. The Board, in a rare majority decision of 8 to 3, banned the screening of the film by claiming that it distorted the events that had occurred, constituted propaganda against the state, bordered on incitement, and would destroy Israel's democratic nature. An appeal was filed before the Supreme Court in its role as the High Court of Justice. The High Court of Justice granted the appeal and overturned the decision of the Film Censorship Board. While the High Court of Justice agreed that the film hurt the sensitivities of many of the Israeli public, especially the soldiers who fought in the battle and the bereaved families of those who fell, it found that harm to sensitivities, notwithstanding the extent of the harm, is a price that Israeli society must bear for the right of free expression.³

In January 2003, Israel held national elections for seats in the Knesset. Arab parties, composed of Israeli citizens, campaigned for Knesset seats as well. As part of their campaign, two of the Arab parties displayed the Palestinian flag, a symbol of identification with the Palestinian Liberation Organization (PLO), during their election broadcasts. The Chairman of the 16th Central Knesset Election Board, and a Justice of the Supreme Court, Michael Cheshin, censured the broadcasts, arguing that the elections were held for the Israeli Parliament and that Israel was "embroiled in a bitter and ugly war" with the PLO.

An appeal was lodged with the High Court of Justice by the Association of Citizens Rights in Israel (ACRI). The Court confirmed the importance of freedom of expression during election broadcasts as an integral part of the democratic process which consists of the right to elect and be elected to parliament. The Court then granted the appeal and held that the broadcasts must be shown in their entirety.⁴

In both of the above cases, as in other similar instances, the Israel Supreme Court rose to the challenge of protecting the democratic principle of freedom of expression, while simultaneously maintaining the trust of the people in the law. The Court's rulings reflect its belief that the paramount right to freedom of expression supercedes perceived threats to the feelings of the public and potential danger to its security. It should be noted that this protection is much broader than that offered by other democratic nations who face similar situations.

As Professor Alan Dershowitz noted in his book "The Case for Israel"  (2003): "Israel is a small democracy surrounded by hostile enemies and battling for its very survival. It is fighting a many-pronged war against enemies both within its borders and outside them, as well as against hostile nations and groups seeking to delegitimize it within the international community. Its actions in defense of its citizens and its nationhood have been far from perfect over the years... (t)he same, and worse, can be said of most other democracies."

The extent to which Israel strives to protect individual liberties even in times of war, when it has an inalienable right to defend itself and its citizens from attack, demonstrates its commitment to maintaining a democratic system of law. Israel deals with this balancing act on a daily basis. Issues such as the demolition of the homes of terrorists, administrative detention, and even the interrogation of suspected terrorists are not free of the restrictions and constraints of the law.

Accordingly, upon being petitioned on the legality of the route of a security fence that would reduce the risk of terrorists entering into Israel to conduct deadly attacks, but would cut through the fields and villages of many Palestinians, the Supreme Court, in accordance with international and Israeli law, ruled that construction of the fence was security-related and not politically motivated. However, at the same time, the Court emphasized that the routing must also take into account humanitarian considerations and a balance must be created between these two issues.⁵

Israel is navigating its way through a reality foreign to most democratic nations. The struggle to be a democracy under constant attack and in a hostile neighborhood has taken its toll on the tolerance level of the Israeli public. That it has succeeded in preserving its democratic nature throughout this journey is a testament to Israel's strong commitment to doing so.

"Any balance that is struck between security and freedom will impose certain limitations on both. A proper balance will not be achieved when human rights are fully protected, as if there were no terrorism. Similarly, a proper balance will not be achieved when national security is afforded full protection as if there were no human rights. The balance and compromise are the price of democracy. Only a strong, safe, and stable democracy may afford and protect human rights and only a democracy built on the foundations of human rights can have security."
Justice Aharon Barak.

1. Quotes by the President of the Supreme Court, Aharon Barak, are taken from his article: The Supreme Court 2001 Term: Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116(1) Harvard Law Review 16 (2002).
2. H.C. 73/53 Kol Haam Ltd. v. Minister of the Interior, 7 P.D. 871.
3. H.C. 316/03 Mohammed Bakri v. The Film Censorship Board, 58(i) P.D. 249.
4. H.C. 651/03 Citizens Rights Association of Israel v. Chairman of the Central Board of Elections for the Sixteenth Knesset, 57(ii) P.D. 62.
5. H.C. 2056/04 Beit Sourik Village Council v. The Government of Israel, et al (June 30, 2004).

Dr. Yuval Karniel, the editor of "A Free People in Our Land", is a leading communications attorney in Israel and is a professor of law and communications. He is the author of two books on media and commercial law.