AHARON BARAK last week spoke in personal terms of his work as a judge. Delivering the John Foster lecture at University College London, he said: “I view my office as a mission. Judging is not a job. It is a way of life. Whenever I enter the courtroom, I do so with the deep sense that, as I sit at trial, I stand on trial.”

As President of Israel’s Supreme Court, Barak — more than most judges — is on trial in that his court is faced with some of the most controversial issues of any supreme court anywhere. Many relate to human rights and many to terrorism. It is impossible, he said, to discuss human rights in Israel without examining those of the Arab residents of the occupied territories. Since 1967, the Supreme Court has heard thousands of petitions, most by Arab residents, relating to occupied territories. Other cases deal with terrorism — both before and after 9/11. But crucially Barak said: “The Supreme Court did not change its approach after 9/11. It did not create new rules . . . it did not create a new balancing formula for free speech in Israel.”

With UK ministers poised to create new terrorism laws, his words were timely. Barak made no reference to Britain but he said that judges faced their “supreme test” in situations of war and terrorism. That was when the protection of human rights of every individual was most “formidable”. And he cautioned that decisions made during war would last for many years “after the terror is over”.

Barak’s views reflect the approach that he has taken in his rulings, according to the leading legal commentator and professor of law Zeev Seegal. As a result, Seegal says, the Israeli Supreme Court is regarded with respect; which is not the way that British politicians sometimes treat judges. “The truth is that no minister, nor Prime Minister, would dare to call the judges to do X or Y — it would be a contempt of court. It happens very rarely that an Israeli minister will criticise a judgment. It is ‘conduct unbecoming’.”

Seegal, a commentator for Ha’aretz as well as professor in the School of Government and Policy at Tel Aviv University, has written extensively about constitutional issues and the Supreme Court. He sees the way the latter has developed as far-reaching. He cites two rulings: that in 2004 on the legitimacy of the fence — a “significant and rare intervention by the court into security considerations”. The court upheld the army’s right to build the fence, but for security reasons — not political ones. The fence, it said, could not be used to “annex” territory to Israel. But it also ruled that in certain areas a portion of the fence violated the balance between the army’s obligation to provide security and its obligation to provide for local Palestinian residents and ordered a section to be re-routed.

In a second key ruling in June, the court confirmed the legality of the Disengagement Implementation Law, rejecting the state’s case that the matter could not be ruled on by the courts because of its diplomatic-political nature. “In this,” Zeegal says, “the Israeli High Court of Justice is different from the courts in many countries in that almost all stay away from matters of this sort.”

It is an approach, he notes, that prompted Cherie Booth, QC, to quote Barak on the fence ruling: “The court’s role is to ensure the constitutionality and legality of the fight against terrorism. It must ensure that the war against terrorism is conducted within the framework of the law.” The unanimous rulings, Zeegal argues, show how the High Court can tackle even sensitive state and military matters that “necessitate the preservation of the rights of the individual, so as not to leave the arena to the legislative and executive branches only”.

Or, to give the last word to Barak, judicial power may expand the court’s role in maintaining and protecting the constitution, but that expansion is only a side-effect. The purpose is “rather to increase the protection of democracy and human rights”.

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