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Published online by Cambridge University Press: 04 July 2014
In difficult times, you need friends. The Legal Friends of the Hebrew University in London, and your many friends elsewhere in the world, have been thinking about you a great deal during recent months. As your President, Professor Magidor, wrote in his moving letter on 31 July, this university symbolizes the values of pluralism and tolerance. You exemplify the spirit of Israel, with your deep historical roots and your encouragement of open debate about the future. It is a great pleasure to be invited to address you today as the Lionel Cohen Lecturer.
My subject concerns the very limits of pluralism and tolerance: the application of human rights in an age of terrorism. When dealing with enemies, politicians need to be tough. In the latest volume of his compelling biography of Lyndon B. Johnson, Robert A. Caro describes the future American president's explanation to his mother in 1956 of why he did not think much of the chances in the presidential election that year of the Democratic Party candidate, Adlai Stevenson: “He's a nice fellow, Mother, but he won't make it ‘cause he's got too much lace on his drawers.”
The threat posed by terrorist enemies understandably provokes politicians to be tough. But how should judges respond when asked to rule on whether a state can afford to grant human rights to those who seek to destroy its very existence? Or, to put it another way, equally tendentious, should judges accept that the State cannot afford to deny human rights to such people if it is to maintain the values which make our society worth defending?
The Lionel Cohen Lecture, Hebrew University of Jerusalem, 11 November 2002.
1 Caro, Robert A., The Years of Lyndon Johnson (New York, Knopf, 2002) 827Google Scholar.
2 See generally Barak, Aharon, “A Judge on Judging: The Role of a Supreme Court in a Democracy,” (2002) 116 (1) Harvard Law Review 148Google Scholar.
3 Sparro, Andrew, “Blunkett Attacks Judiciary in Fight over Terrorism,” The Daily Telegraph Online, 4 10 2001Google Scholar.
4 Tribe, Laurence H., “Trial by Fury,” The New Republic Online, 12 12 2001Google Scholar (hereinafter: Trial by Fury).
5 Churchill, Randolph S. and Gilbert, Martin, Finest Hour: Winston S. Churchill (London, Heinemann, 1983) 1118–1119Google Scholar.
6 Cicero, Marcus Tullius, Pro Milone (Bristol, Bristol Classical Press, 1980) Chapter 11Google Scholar.
7 H.C. 7015/02, 7019/02 Ajuri v. IDF Commander, 65 (4) P.D. 861 (Page 33 of the English translation) (hereinafter: Ajuri v. IDF Commander).
8 Liversidge v. Anderson, [1942] A.C. 206, 244 (hereinafter: Liversidge v. Anderson).
9 Klass and Others v. Federal Republic of Germany, (1978) 2 E.H.R.R. 214, 232 (paragraph 49 of the judgment) (hereinafter: Klass v. Germany).
10 Kerr, Michael, As Far As I Remember (London, Hart Publishing, 2002) 125–145Google Scholar.
11 Simpson, A. W. Brian, In the Highest Degree Odious: Detention without Trial in Wartime Britain (Oxford, Clarendon Press, 1992) 190, 194Google Scholar.
12 Ibid., at 271.
13 Liversidge v. Anderson, supra n. 8, at 244–245.
14 Professor Robert Stevens suggested that Atkin “never really recovered from this treatment before his death in 1944.” See Stevens, Robert, Law and Politics: The House of Lords as a Judicial Body 1800–1976 (Chapel Hill, University of North Carolina Press, 1978) 287Google Scholar. See also Heuston, R.V.R, “Liversidge v. Anderson in Retrospect” (1970) 86 Law Quarterly Review 33, at 48Google Scholar; Lewis, Geoffrey, Lord Atkin (London, Butterworths, 1983) 143Google Scholar.
15 Inland Revenue Commissioners v. Rossminster Ltd., [1980] A. C. 952, 1011.
16 Schenck v. Unites States, 249 U.S. 47 (1919).
17 Korematsu v. United States, 323 U.S. 214 (1944).
18 As Professor Laurence Tribe has observed, “historically, the judiciary has been so deferential to the executive in wartime as to provide virtually no meaningful check.” Trial By Fury, supra n. 4.
19 As Lord Woolf of Barnes, the Lord Chief Justice, observed in a recent judgment, “the mistakes which have been made in the past, in relation to internment of aliens at the outbreak of war, should not be forgotten.” See A, X, and Y and Others v. Secretary of State for the Home Department C.A., [2003] 2 W.L.R. 564 (paragraph 9) (hereinafter: A, X, and Y Appeal).
20 Ajuri v. IDF Commander, supra n. 7. It is for that reason, as Justice Aharon Barak suggested in his 1999 judgment on the use of torture, “a democracy must fight with one hand behind its back. Nonetheless, it has the upper hand.” See H.C. 5100/94 Public Committee against Torture in Israel and others v. Government of Israel 53(4) P.D. 817, 845 (hereinafter: Public Committee Against Torture).
21 The Daily Mail, 25 September 2002.
22 Sporrong and Lonnroth v. Sweden, (1982) 5 E.H.R.R. 35, 52 (paragraph 69 of the judgment). See also Brown v. Stott, [2001] 2 W.L.R. 817, 839 D-H (Lord Steyn in the Judicial Committee of the Privy Council).
23 McCann and Others v. Crown Court at Manchester, [2002] 3 W.L.R. 1313, 1324 (Lord Steyn at paragraph 18), 1330 (Lord Hope of Craighead at paragraph 41), and 1352 (Lord Hutton at paragraph 113).
24 As Lord Steyn observed for the House of Lords in a case under the Human Rights Act, 1998 about freedom of expression, “in law context is everything.” Regina (Daly) v. Secretary of State for the Home Department, [2001] 2 A.C. 532, 548 (paragraph 28).
25 Klass v. Germany, supra n. 9, 232 (paragraphs 48–49).
26 Ibid, at 237 (paragraph 59).
27 Murray v. The United Kingdom (1995) 19 E.H.R.R. 193, 222 (paragraph 47). See also Fox, Campbell, and Hartley v. The United Kingdom (1991) 13 E.H.R.R. 157, 166 (paragraph 28), and McVeigh, O'Neill, and Evans v. United Kingdom (1981) 5 E.H.R.R. 71, 88 (paragraph 157 of the opinion of the European Commission of Human Rights).
28 Ajuri v. IDF Commander, supra n. 7 (page 33 of the English translation).
29 Terminiello v. Chicago, 337 U.S. 1, 37 (1949).
30 Douglas, William O., The Court Years 1939–1975: The Autobiography of William O. Douglas (New York, Random House, 1980) 217Google Scholar. There was an equally hopeless judicial review application some years ago in England where a litigant in person sought an order to stop Prince Philip from attending the funeral of the Emperor Hirohito.
31 Gerand, Jasper, “Lord Chief Justice wants Weekend-Only Prisoners,” The Sunday Times, 10 2001 (News) p. 2, 28Google Scholar.
32 See Lord Hoffmann for the House of Lords, in Secretary of State for Home Department v. Rehman [2001] 3 W.L.R. 877, 897 (paragraph 62).
33 See Lord Woolf of Barnes, Lord Chief Justice, Human Rights: Have the Public Benefited?, Thank-Offering to Britain Fund Lecture at The British Academy, (15 10 2002)Google Scholar.
34 Regina (Alconbury Developments Ltd.) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 W.L.R. 1389, 1427 (paragraph 129).
35 See Brown v. Stott [2001] 2 W.L.R. 817, 834 H–835 B (Lord Bingham of Cornhill) and 842 E–H (Lord Steyn); and Regina (Mahmood) v. Secretary of State for the Home Department [2001] 1 W.L.R. 840, 854 H–855 E (Laws LJ at paragraph 33) and 856A–857E (Lord Phillips MR at paragraphs 37–40), “the general tenor of the observations” in which were approved by Lord Steyn for the House of Lords in Regina (Daly) v. Secretary of State for the Home Department [2001] 2 A.C. 532, 548 (paragraph 28), but clarifying the role of proportionality at pp. 546–547 (paragraphs 25–27).
36 Attorney General of Quebec [1998] 3 B.H.R.C. 269, 289 (paragraph 59).
37 State v. Makwanyane [1995] 1 L.R.C. 269, 317.
38 Ajuri v. IDF Commander, supra n. 7 (page 24 of the English translation).
39 Or, more precisely, persons who lack the right of abode in the United Kingdom. The vast majority of those with the right of abode under schedule 2 of the Immigration Act 1971 (c.77) are British nationals.
40 Chahal v. The United Kingdom, (1996) 23 E.H.R.R. 413. As Lord Hoffmann noted for the House of Lords in Secretary of State for the Home Department v. Rehman, [2001] 3 W.L.R. 877, 895 (paragraph 54), “The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under Article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security.”
41 A, X, and Yand Others v. Secretary of State for the Home Department, Special Immigration Appeals Commission, 30 July 2002.
42 A, X, and Y Appeal, supra n. 19.
43 Simpson, supra n. 11, at 391. See also Gilbert, Martin, Road to Victory: Winston S. Churchill 1941–1945 (London, Heinemann, 1986) 561, 567Google Scholar.
44 The Republic of Ireland v. The United Kingdom (1980) 2 E.H.R.R. 25, 95. (paragraph 214); Brannigan and McBride v. The United Kingdom (1994) 17 E.H.R.R. 539, 569 (paragraph 43); and Secretary of State for the Home Department v. Rehman, [2001] 3 W.L.R. 877,896 (paragraph 57 of the Judgment of Lord Hoffmann).
45 A, X, and Y Appeal, supra n. 19, (paragraph 46).
46 Ibid., paragraph 9.
47 Berlin, Isaiah, Concepts and Categories (London, Hogarth Press, 1978) 101Google Scholar.
48 Matadeen v. Pointu, [1999] 1 A.C. 98,109.
49 A, X, Y Decision, supra n. 19 (paragraphs 112–131 of the judgment of Lord Justice Brooke).
50 Cf. Regina v. Secretary of State for the Home Department, ex parte Simms [2000] 2 A. C. 115, 131, where Lord Hoffmann explained that one of the basic principles of English law is that fundamental rights cannot be overridden by general language in a statute. Only express language can satisfy the court that the legislature has focused its attention on the issue and has paid the political price of the action it wishes to take. A very similar principle was expressed by Justice Aharon Barak as President of the Supreme Court of Israel in 1999 in the case about the legality of the use of physical pressure on terrorist suspects: “The Rule of Law (both as a formal and substantive principle) requires that an infringement on a human right be prescribed by statute”: See Public Committee Against Torture, supra n. 20.
51 Railway Express Agency Inc. v. New York, 336 U.S. 106, 112–113 (1949).
52 As Justice Aharon Barak commented for the Israeli Supreme Court in 1999 when deciding on the legality of interrogation techniques applied to terrorist suspects, judges are “part of Israeli society. We know its problems and live its history. We are not in an ivory tower.” Public Committee Against Torture, supra n. 20, at 845.
53 Exodus 18:21.
