Aharon Barak, world-renowned jurist and eighth President of Israels Supreme Court (1995-2006), spoke before an audience of nearly 250 in Sherman Function Hall Sunday about the sensitive and difficult balance between the freedom and dignity of the individual and [national] security.
Addressing primarily faculty and non-students in a discussion entitled, Human Rights and the Battle Against Terror: The Israeli Case, Baraks speech focused on the problem of torture in the context of the war on terror. He pronounced, we must never relax protection of the rule of law and allow torture, for the ends do not justify the means. Barak made clear his position that in a democracy torture is illegal in all cases whatsoever, including the provocative ticking-bomb scenario.
Yet the justice recognized the controversial clash of values implicit in the question of torture during a time of war. In answer to the question of extenuating circumstances, such as war, with regard to the legality of torture, the judge quoted one of his decisions, decidingweighed heavily on this court[but] from the legal perspective the path is smooth. The justice sought to dispel the suggestion that there can be a distinction between human rights in wartime and human rights in peacetime, proclaiming the irrelevance of context with regard to the practice of torture within a democracy.”
Barak also pointed out, however, that rights are not absolutethey may be limited. He said, the constitution is not a suicide pact. The justice explained that civil rights depend upon the existence of the state. If the survival of the society is at stake, according to the justice, the abrogation of individual rights is acceptable.
The former chief justice sought to clarify his legal perspective by offering as a necessary lens the legal concept of proportionality. In resolving court cases in which individual rights were pitted against the national interest, the judge explained that in order to legally justify abridging individual rights, there needed to exist at least an equivalent (proportional) benefit to society.
No such benefit exists, according to Barak, at the expense of human rights, as they are the core of a democracy. If we would not protect democracy, democracy would not protect us, said Barak.
This belief was questioned by audience member Sam Ackerman 08, who asked the justice how we balance rule of law when we are fighting people who do not operate by it. The justice responded that democracy fights with one hand behind its backbut democracy has a secret weapon, and that is the rule of lawIt may take time, it may take casualties, but ultimately we will prevail. Thats my belief.
Other questions included whether Barak believed it possible to create a Jewish form of democracy, to which the justice responded, I dont think there is a Jewish democracy, or a Jewish way to form a democracy. This sentiment was similarly expressed by Professor of Israel Studies, Selwyn Troen (NEJS), who introduced the event. Brandeis President Jehuda Reinharz also spoke at the event, expressing that we need laws most in times of warand we need human rights as well most in time of war. President Reinharz articulated further, the rule of law must prevailin times of peaceand war and terror.
