The Myth of
Israel's Liberal Supreme Court Exposed
by Jonathan Cook
Middle East Report Online
February 23, 2012
Little more than a decade ago, in a brief interlude of heady
optimism about the prospects of regional peace, the Israeli Supreme Court issued
two landmark rulings that, it was widely assumed, heralded the advent of a new,
post-Zionist era for Israel. But with two more watershed judgments handed down
over the winter of 2011-2012 the same court has decisively reversed the tide.
Palestinians, both in the Occupied Territories and inside Israel,
will pay the biggest and most immediate costs of the new decisions. In one, the
Supreme Court has created a new concept of “prolonged occupation” to justify
further Israel’s denial of basic protections to the Palestinian population
living under belligerent military rule. In the other, it has upheld the right of
the Israeli state to strip the Palestinian minority inside Israel of one of its
fundamental rights of citizenship.
Both of these new rulings threaten to unleash a torrent of more
aggressive legislative and administrative measures against Palestinians on both
sides of the Green Line that separates the Occupied Territories from Israel
proper, as the center of political gravity in Israel drifts steadily rightward.
Activist Reputation
The judicial mood of today is a far cry from the high spirits of
the late 1990s, when the Supreme Court was led by Aharon Barak, feted by his
counterparts in the United States as a paragon of enlightened liberalism. Barak
is widely credited with entrenching in Israeli jurisprudence the philosophy of
“judicial activism.” In practice, Barak’s activism meant that he reserved to the
Supreme Court the right both to interpret the law creatively when it lacked
clarity and to weigh critically and, if necessary, strike down measures passed
by the Knesset when they conflicted with one of Israel’s 11 Basic Laws.
Israel lacks a constitution, but Barak had sought inspiration for
what he and others termed a “constitutional revolution” in two liberal Basic
Laws passed in 1992 -- one on Freedom and Human Dignity, the other on Freedom of
Occupation. He treated these laws as akin to a bill of rights.
It was Barak’s activist Supreme Court that in 1999 -- belatedly,
after years of petitioning by human rights groups -- found against the common
practice of torturing Palestinian prisoners. The judges prohibited the Israeli
security services from using “moderate physical pressure,” as Israel termed it,
except in cases of Palestinians who were “ticking bombs,” that is, detainees
believed to be withholding information needed quickly if lives were to be saved.
And it was a similar activism held responsible in May 2000 for a
court decision in favor of the Kaadans, a Palestinian family with Israeli
citizenship that had been barred five years earlier from Katzir, a rural
community in northern Israel. Katzir’s admissions committee had justified the
family’s exclusion on the grounds that it -- like nearly 700 other such
communities -- was intended for Jews only. Describing it as “the most difficult
decision of my life,” Barak ordered Katzir to reconsider the Kaadans’
application for admittance.
Many observers assumed that these rulings paved the way for a
more tolerant and democratic Israel, as the country finally began to shake off
the encumbrances of ethnic chauvinism, security obsessions and demographic
fixation. Now held properly to account by a more activist court, the occupation
would deserve the term “benign,” just as the peace process inaugurated at Oslo
in 1993 shepherded it to oblivion. And the Kaadan ruling promised to end decades
of communal segregation of Jewish and Palestinian citizens; loosen the
oppressive system of ethnic control over Israeli territory, most of which had
been nationalized for the benefit of worldwide Jewry rather than the general
Israeli populace; and erode the second-class nature of citizenship for non-Jews.
Even as one ruling portended the expiry of the occupation, the other promised to
give concrete form to Israel’s description of itself as a “Jewish and democratic
state,” regarded by many before and since as an oxymoron.
“As If Annexed”
But the aura of hope that allowed observers at the time to
interpret these rulings as revolutionary slowly faded through the years of the
second intifada, which began in the fall of 2000. The nadir was reached in
December and January as the Supreme Court issued two major decisions, again
relating separately to the Palestinians in the Occupied Territories and to those
inside Israel. In both, the judges showed that, far from seeking to refashion
the Jewish state, the court had emphatically chosen the role of apologist for
the very Zionism it had once looked set on eradicating.
The first ruling, issued on December 26, 2011, when it stood a
good chance of going unnoticed in Western capitals, concerned the long-standing
exploitation by a handful of Israeli firms of a major Palestinian natural
resource in the West Bank: its quarries. Yesh Din, an Israeli human rights group
that had petitioned the court three years earlier, argued that Israel was
violating international law by plundering the underground stone of so-called
Area C, the nearly two thirds of the West Bank that was assigned in the Oslo
accords to Israel’s temporary control. The benefits of the trade in quarried
stone -- estimated by the Palestinian Authority (PA) to be worth $900 million
annually -- had accrued not to the local Palestinian inhabitants but to “the
needs of the state of Israel, the occupying power,” Yesh Din pointed out. Eleven
Israeli companies operated the quarries, exporting 94 percent of the stone to
Israel.
The case should have been cut and dried. According to Article 55
of the 1907 Hague Convention, the occupying power is required to “safeguard the
capital” of the occupied party’s natural resources and “administer them in
accordance with the rules of usufruct,” the principles governing fair usage. But
a panel of Supreme Court justices, headed by Dorit Beinisch, Barak’s successor
and inheritor of his activist mantle, found otherwise.
The court accepted the Israeli state’s position that Israel’s use
of the quarries was limited and did not amount to destroying their “capital.”
Rather, it noted, the economic development of the occupied territory could not
be frozen indefinitely given that the occupation was “prolonged.” It was
necessary to “adapt the law to the reality on the ground,” observed Beinisch,
and opening the quarries was part of the Israeli military’s development efforts
in the West Bank. Palestinians benefited because the quarrying firms provided
training and employment, and some of the stone was sold to them. In addition,
noted Beinisch, the Palestinian Authority’s consent to the quarrying operations
was implicit in its signing of the 1993 Oslo accords, and the quarries’ fate
would ultimately be decided in peace talks.
The judges were apparently also impressed by two concessions the
state had made after Yesh Din submitted its petition. One was an undertaking not
to open any new quarries. The other was a commitment that all the royalties paid
to the state by the Israeli quarrying companies, amounting to about $7.5 million
a year, would be directed to the Civil Administration, the Israeli military
government that rules over Palestinians in the West Bank.
There were obvious problems with the ruling, as several observers
were quick to point out. Assessing the decision as an example of Israeli
“colonialism,” Aeyal Gross, a law professor at Tel Aviv University, observed
that the judges could not find legal sanction for the exploitation of
Palestinian resources in the Oslo process. The accords were intended to lead to
a final agreement by 1999, more than 12 years ago, and under their terms
responsibility for mining and quarrying was supposed to be gradually transferred
to the Palestinians.
Similarly, lawyers for Yesh Din noted that the Oslo accords no
more indicated the PA’s consent to Israel’s exploitation of the West Bank’s
mineral wealth than they signaled its acceptance of the legality of the
settlements. In any case, they added, the PA had no authority in international
law to consent to the violation of the Palestinian population’s rights. Or, as
Gross put it, “International law does not allow the rights of residents of [an]
occupied territory to be curtailed via agreements signed with the occupying
state.” Also, it was an extraordinary argument for the court to make that the
Palestinians benefited from the plunder of a Palestinian natural resource by
Israel because the minor royalties -- set at less than 1 percent of the annual
value of the trade in stone -- were paid to the Civil Administration. Israel
thus assigned the royalties to cover some of the costs of military occupation.
But there was an even graver implication. In a statement, Yesh
Din observed that the court ruling “revolutionizes the Israeli application of
international law of belligerent occupation,” establishing a doctrine of
“prolonged occupation” that existed in no finding by any other court in the
world or in any academic literature. Gross made a related point: The decision
revealed that “under the cover of a temporary occupation, Israel is conducting a
creeping annexation of the West Bank and its resources” -- and the court was
effectively rubber-stamping it.
“Prolonged occupation,” Yesh Din added, set a “dangerous”
precedent that could be used by Israel to legitimize its many other exploitative
acts, such as its moves “to pump water found there, to transfer archeological
findings out of the occupied territory, to exploit open spaces for waste
disposal, to sell public property and other such irreversible acts which harm or
alter the capital of public properties.” In layman’s terms, as commentator Yossi
Gurvitz noted, “Israel can keep pillaging the West Bank as if it has been
annexed.”
Against Family Unification
The court’s sanction of Israel’s long-term exploitation of
Palestinian natural resources in the Occupied Territories was mirrored by an
equally disquieting ruling a short time later on the rights of Israel’s minority
of 1.3 million Palestinians with citizenship, a fifth of the population.
In mid-January the Supreme Court finally issued its verdict on
the legality of a 2003 temporary law on family unification that had in most
cases barred an Israeli citizen from raising a family in Israel with a
Palestinian spouse from the Occupied Territories. The controversial law was
introduced as an amendment to the 1952 Citizenship Law, which determines
citizenship for non-Jews; a different piece of legislation, the 1950 Law of
Return, confers on all Jews around the world the right to immigrate and receive
automatic Israeli citizenship.
It was the second time the court had ruled on this matter. Human
rights groups, led by Adalah, the legal center for the Arab minority in Israel,
had brought a petition against the law to the court in 2006. The state claimed
then that the amendment was needed to close a loophole that undermined the
security of the state by allowing Palestinian terrorists to carry out attacks in
Israel after marrying a Palestinian citizen. The petitioners countered that the
state had provided no verifiable statistical evidence of such a threat and that
other measures, such as existing security checks on applicants for residency,
were sufficient or could be improved to ensure that anyone likely to carry out
an attack was identified at an early stage.
The real goal of the 2003 law, the human rights groups argued,
was demographic, namely to protect the shrinking Jewish majority in Israel
proper and the ever smaller Jewish plurality between the Mediterranean Sea and
the Jordan River. It was an outgrowth, they said, of Israel’s philosophy of
“unilateral separation” from the Palestinians, which had sealed off Gaza and the
West Bank with walls of steel and concrete. The amendment was designed to
prevent what has been termed a “right of return through the back door,”
referring to Palestinians from the Occupied Territories gaining Israeli
citizenship through marriage to a Palestinian citizen.
In 2006 Aharon Barak, who was about to retire as chief justice,
had found himself narrowly overruled by his fellow judges, who upheld the
statute. Nonetheless, even though six of the 11-member panel backed the law,
Barak was still able to characterize the defeat as merely a “technical loss.” A
slim majority -- again six of 11 -- had also agreed that the amendment violated
Israel’s Basic Laws. The wavering judge, Edmond Levy, had sided with those
upholding the law only because he believed it was temporary. The court, Levy
said, should not interfere when the government was promising to replace the law
with a properly formulated immigration policy.
In an e-mail to an unnamed Yale law professor, which was leaked
and clearly intended to limit any damage caused by the ruling to his own and
Israel’s reputation, Barak was adamant that the amendment would not survive much
longer. The justice minister, Haim Ramon, Barak averred, was about to draft an
immigration law that would incorporate “universal principles.” The court would
not stand idly by if the 2003 amendment were renewed again: “If the parliament
tries to enact again the statute without any change, there is a high
probability, according to the views of the court, that the statute will be
unconstitutional.”
In fact, the government failed to produce an immigration policy,
as Barak might have foreseen, given the almost sacred nature of Law of Return
for most Israelis. Instead, the temporary 2003 law was renewed regularly by the
Knesset, and its scope was expanded by a further amendment in 2007 to include in
the restrictions not only Palestinians from the Occupied Territories but also
any “citizen of an enemy state.” A second petition to the court was launched by
Adalah and the Association for Civil Rights in Israel (ACRI), and backed by
several individual petitioners.
The new hearings occurred in a very different security climate
from the earlier one. In 2006 the suicide attacks of the second intifada were
still a raw wound for Israelis; by 2012 they were mostly a distant memory.
Nonetheless, the state pressed on with the argument that any relaxation of the
family unification policy would pose an overwhelming security threat.
In the last hearing before the court, in March 2010, Yochi
Gnessin, the state’s chief lawyer, claimed that 130,000 Palestinians had sought
family unification between 1994, the start of the Oslo process and the point at
which most Palestinians were required to have permits to enter Israel, and 2008.
Of these, 54 Palestinians who received residency permits through marriage had
been involved in terror attacks. In the state’s view, this number proved that
Palestinian terror organizations sought out Palestinians only after they
received the right to stay in Israel, making it impossible for the security
services to devise checks during the residency procedure that would assess who
might be a threat.
Adalah, however, pointed out that the
statistics were misleading. The category of Palestinian residents involved in
terror attacks looked much less menacing when broken down. In fact, according to
the state’s own figures, only seven of these 54 cases resulted in a conviction
and prison sentence, and two of those people were released a short time later,
suggesting that the charges were not serious. Adalah also noted that more than
20,000 Palestinian laborers from the West Bank held permits to enter Israel
legally for work every day, making the state’s security argument look even more
specious.
The great play made by officials of the figure of 130,000
applications for family unification, however, hinted at the subtext of the
state’s case for the law. The Israeli media regularly cited this large number,
with columnists worrying about the demographic implications for the Jewish state
from such an influx.
Not surprisingly, this was also the thrust of arguments made by
four prominent right-wing groups that were allowed by the state to join as
co-respondents to the petition. Ilan Tzion, a lawyer representing Fence for
Life, clarified the key issue in the case: “Our argument is not demographic
[sic] but Zionist. The petitioners are claiming that Israel must not give
preference to Jewish immigration over Arab. That means the Law of Return is also
racist. They are making the same accusation that the United Nations did when it
resolved that Israel was a racist state.” Tzion highlighted a study by Arnon
Sofer, a geography professor from Haifa University, who forecast that, unless
checked, the growth of Israel’s Palestinian minority would make it a majority in
Israel within two generations.
In reality, the 130,000 figure was misleading, too. It included
the large number of family unifications in East Jerusalem, whose residents,
unlike Palestinians inside Israel, are under an illegal occupation. Families
there are often separated by Israel’s aggressive bureaucratic procedures,
including many children of marriages between residents of East Jerusalem and
neighboring West Bank villages. After the age of 14, they have to apply, often
unsuccessfully, for the right to remain with their parents. The figure also
included repeat applications from the same individuals, meaning the true number
of applicants was certain to be much lower.
Thinking Demographics
On January 11, 2012, after nearly two years of procrastination,
the Supreme Court justices issued their verdict. As in 2006, the court backed
the law and again it did so by the narrowest of margins, six judges to five.
The petitioners had sought a remedy in the 1992 Basic Law on
Freedom and Human Dignity, arguing that the amendment to the Citizenship Law
violated the Basic Law by depriving citizens of the right to a family life on
the basis of their spouse’s ethnicity. The judges agreed that families enjoyed a
constitutional right to live together but were divided over whether a limitation
clause in the Basic Law applied. The clause allows the parliament to legislate a
law infringing on the 1992 Basic Law if it is deemed to “befit the values of the
State of Israel, enacted for a proper purpose and to an extent no greater than
required.”
In the minority’s view, the limitation could not be invoked
because the amendment offended the principle of equality -- its effect would be
felt almost exclusively by Palestinian citizens. Dorit Beinisch, who was weeks
away from retiring as the court’s president, wrote in her minority opinion: “The
question we faced was, what risks are we willing to take and what action are we
willing to pursue to ensure our safety without compromising human rights or
causing disproportionate harm.”
The majority, by contrast, argued that the limitation was
applicable because the harm caused to the families refused unification was
necessary and proportionate. The judges based their reasoning on the state’s
security concerns. Asher Grunis, due to take over from Beinisch at the end of
February, titled his opinion, “Human Rights Are Not a Prescription for National
Suicide.” Elyakim Rubinstein concluded that Palestinian citizens “must pay a
heavy price for greater security for all Israelis, including their own.” And
Miriam Naor argued that, while Palestinian citizens of Israel had a
constitutional right to a family life together, that right did not extend to it
being exercised in Israel. The majority also tried to find solace in claims that
the law had parallels with legislation in other countries, including European
states. But again Adalah had pointed out in the earlier hearings -- and provided
three expert legal opinions -- that such restrictions applied, unlike in
Israel’s case, only when both parties to the family unification procedure were
non-citizens. The judges’ indifference to such distinctions, and the priority
they gave to security over citizens’ basic rights despite the weak case made by
the state, suggested to many that the decision to uphold the law was really
motivated by demographic considerations.
That was certainly how the judgment played out publicly. Dan
Margalit, one of Israel’s most popular journalists, feared that marriages
between Palestinians from Israel and the Occupied Territories were part of a
“well-planned invasion.” Ronen Shoval, head of the right-wing youth movement Im
Tirtzu, said the Supreme Court’s ruling would “prevent hundreds of thousands of
Palestinians from flooding into Israel.” And Ze’ev Elkin, a Likud legislator and
chairman of the ruling coalition faction in the Knesset, chastised the minority
justices for wanting to open the “floodgates” to thousands of Palestinians,
thereby allowing them a “right of return” through marriage.
Several of the judges also alluded to the demographic argument in
their opinions, as Yoram Rabin, dean of a law school in Tel Aviv, observed in
the January 15 edition of the Ha’aretz newspaper. “It is quite clear that at
least some of the judges in the majority opinion ‘talked security’ while
‘thinking demographics.’” Miriam Naor had noted that the 2003 law had
demographic as well as security implications and that these two factors were
“indivisible.” Another judge, Eliezer Rivlin, in comparing Israel’s law to other
states, had observed: “European states are toughening the conditions for
immigration, for demographic reasons.” And Edmond Levy, who was with the
minority, had argued that Jews must be the majority in the state, adding that
his opinion “might have been different” had the state based its argument on “the
composition of Israel’s population, or appropriate immigration arrangements.”
Hassan Jabareen, the director of Adalah,
believed the case dealt with the “most sensitive” issue for the Supreme Court.
Israel has been officially describing itself as a “Jewish and democratic” state
since the mid-1980s, but this concept has rarely been unpacked. This case
revealed the two principles -- Israel’s Jewishness and its democracy -- to be in
sharp contradiction. Effectively, the judges had to choose which component of
the state’s identity they gave a greater priority to. A majority preferred to
ring-fence the state’s Jewishness even if this meant upholding a law that
violated the state’s democratic pretensions.
Naor, in particular, set out the ruling’s
consequences in stark fashion. In stripping the country’s Palestinians of one of
the fundamental rights of citizenship, the majority decision forced them to
choose between splitting up the family or moving out of Israel with their spouse
to live together under Israel’s belligerent occupation. In the view of Ha’aretz
columnist Gideon Levy, also writing on January 15, the ruling was another plank
in a long-term policy by the state to effect the ethnic cleansing of
Palestinians from their lands whenever a pretext arose. “This is about transfer.
Not by the army, the settlers or the extreme right, but expulsion under the
aegis of the law and with the court’s seal of approval.”
Adalah, meanwhile, observed that the court
had “approved a law the likes of which does not exist in any democratic state in
the world.… The ruling proves how much the situation regarding the civil rights
of the Arab minority in Israel is declining into a highly dangerous and
unprecedented situation.” Jabareen and Sawsan Zaher, who petitioned the court
for Adalah, noted that the danger would manifest in two ways. First, by
abandoning the principle of equality for Palestinians in Israel on the matter of
family unification, the court had implied that non-discrimination was a matter
that needed to be weighed on a case-by-case basis. The suspension of the rule of
law, the two lawyers argued, “legitimizes the government and Knesset’s enactment
of more laws that discriminate against Palestinian citizens of Israel.” And
second, “When the issue of ‘equality’ for Palestinian citizens of Israel is seen
as a political rather than a constitutional question, it is then a short step to
also view human rights groups that strive to achieve the rights of dignity and
equality for Palestinian citizens as political organizations, and the Supreme
Court’s jurisprudence in such cases as political, and thus subject to
intervention by the Knesset. However, the Knesset’s interference in the work of
the Supreme Court threatens the fundamental principle of the separation of
powers.”
“Mere Recommendations”
Seen in this light, the Supreme Court had signed a death sentence
for the activist role originally set out by Barak, and apparently realized in
most concrete form more than a decade earlier in the torture and Kaadan cases.
Zahava Gal-On, leader of the tiny left Zionist Meretz party, who had also joined
the petition, warned: “The court has gotten tired of battling racism. The
decision to reject my petition is the result of the campaign to weaken the
Supreme Court.” She was referring to two fronts in a populist campaign waged by
the Israeli right in recent years to undermine the court by suggesting its
rulings, when they infringed on Knesset legislation, were undemocratic. As the
political climate in Israel moved ever further rightward during the 2000s, the
court had grown increasingly isolated, with the right delighting in presenting
the judges’ ideological inclinations as at odds with mainstream Israeli society.
The weakness of the court was particularly evident in a number of
cases where its activist decisions -- declaring Israeli laws and policies
illegal -- were simply ignored by officials. The government often appeared to be
flaunting its defiance, most prominently in its refusal to dismantle
unauthorized settlement outposts and sections of the separation wall built on
private Palestinian land in the West Bank; its awarding of priority status, and
related preferential budgets, almost exclusively to Jewish communities,
including settlements, rather than much poorer Palestinian communities inside
Israel; its failure to assign Palestinian schools in Israel equal budgets or
build hundreds of classrooms for Palestinian children in East Jerusalem; and its
denial of basic services to Bedouin villages in the Negev. In one especially
confrontational hearing in 2009, Beinisch accused the state of taking “the law
into its own hands” and treating her rulings as “mere recommendations.”
But these high-profile clashes reinforced the right’s message,
expressed succinctly by Knesset member Yariv Levin, of Likud: “The Supreme Court
has been taken over by an extreme leftist minority that is trying to dictate its
values to the whole society,” a development, he added, that posed “a danger to
our ability to ensure our existence.”
That accusation had been given extra force by the government’s
escalating campaign against human rights groups, portraying them as political
organizations funded by foreign governments and, by implication, operating as
agents of foreign influence. The court’s support for arguments made by human
rights groups was seen as proof of its submission to a foreign -- meaning
anti-Israeli -- agenda.
Aryeh Rattner, a law professor at Haifa
University, noted that the court was popularly perceived to prefer “excessive
involvement” when faced with controversial security, social and religious
issues. A survey he conducted in 2010 showed that among Israeli Jews who did not
identify as either ultra-Orthodox or settlers -- both groups tend to reject the
court’s authority -- only 36 percent expressed great faith in its decisions.
That proportion was down from 61 percent a decade earlier. Among settlers the
figure was 20 percent, down from 46 percent in 2000.
In parallel, the right-wing parties used the issue of fundamental
reform of the court as a way to intimidate it. For the past decade, the judges
have been living under the cloud of a proposal from the right to replace the
Supreme Court with a so-called Constitutional Court, made up of rabbis,
politicians and “experts” appointed by the Knesset. In January, the influential
settler leader Israel Harel, a columnist with Ha’aretz whose son is flouting a
Supreme Court ruling by living in a settlement outpost called Migron, pushed
again the idea of such reform, arguing that it would prevent the court’s
cooptation by “extremist organizations funded by foreign governments” -- a
reference to the funding received by groups like Adalah and ACRI from the
European Union.
The pressure has come too from Israeli governments. The assault
began in earnest under Daniel Friedmann, the justice minister from 2007 to 2009
in Ehud Olmert’s center-right government. He unsuccessfully tried to legislate
several proposals to curb judicial activism, including by limiting the public’s
right to petition the Supreme Court and by severely restricting the subjects on
which the court could adjudicate.
As the head of an even more right-wing coalition, Binyamin
Netanyahu has been equally determined to find a way both to diminish the court’s
ability to interfere in the right’s legislative agenda and to alter the court’s
composition to make it more ideologically sympathetic to the government. He
appointed as justice minister Yaacov Neeman, an unelected right-winger who
opposes an activist court and has expressed support for making halakha -- Jewish
religious law -- binding in Israel. Neeman and the right rapidly advanced a bill
to allow a judge who is only two years away from retirement to be appointed
president of the Supreme Court. Asher Grunis, a conservative judge known to
oppose the activist philosophy of Barak and Beinisch, was the intended
beneficiary of the change. The law passed in January, in time to ensure that
Asher would take over from Beinisch when she retires at the end of February.
But Neeman’s main target has been the Judicial Appointments
Committee, which selects judges for the entire court system, including the
Supreme Court. In 2011 he initiated a bill to ensure a right-wing majority on
the committee that would promote judges who shared the right’s ideological
positions. Neeman intensified efforts to pass the legislation as three spots on
the Supreme Court, including that of Beinisch herself, were slated to fall
vacant early in 2012. Procedural delays, however, meant the bill could not pass
before elections to the committee had taken place late in 2011. When Neeman
simply redrafted the bill to make it retroactive, thereby threatening to force
new committee elections, several cabinet ministers and the attorney general
protested. A nervous Netanyahu scrapped the bill.
A political analyst at Ha’aretz, Yossi Verter, suggested that
Neeman’s defeat may only have been apparent. He argued that the main intention
of the bill’s sponsors was longer-term. They wanted to highlight to judges lower
down the judicial hierarchy that the right wing was in the ascendant and that,
if they hoped to be promoted to the higher courts, they should tailor their
rulings on controversial issues. “Such a message would be internalized by judges
who handle cases of settler violence and law-breaking,” Verter observed on
January 6.
Despite the bill’s defeat, the committee’s selection of three new
candidates for the court reflected the new trend against activist judges. One,
Noam Sohlberg, was a particularly controversial choice because he is an
ideological settler.
Sohlberg had repeatedly shown himself to be
antagonistic to arguments proposed by human rights groups. His controversial
decisions had included denying 15-year old twins the right to reside in East
Jerusalem, even though their parents had residency; the acquittal on
manslaughter charges of a policeman who claimed he had been acting in
self-defense when he shot dead a fleeing Palestinian; rejection of a slander
claim against three members of the illegal far-right Kach movement who
interrupted the trial of the Arab Knesset member Ahmad Tibi by calling him a
“Nazi”; and upholding the right of the Interior Ministry to deny a passport to
an Israeli citizen living abroad who had not returned to do military service.
One of his rulings became a particular cause for embarrassment in the wake of
his appointment to the Supreme Court. A TV journalist, Ilana Dayan, appealed
against a large libel award Sohlberg had imposed over her investigative report
accusing an Israeli army officer of executing -- or “confirming the kill,” in
Israeli military parlance -- a 13-year old Palestinian girl in Gaza in 2004. In
February, three Supreme Court judges unanimously overturned Sohlberg’s decision,
and heavily criticized his reasoning in the case.
Aged 50, Solhberg is young by the standards of the Supreme Court
and is almost certain to become its president one day. Immediately after his
appointment, Yesh Gvul, a group that refuses military service in the Occupied
Territories, petitioned the Supreme Court to have Sohlberg disbarred on the
grounds that, as a resident of the settlement of Alon Shvut, he was breaking
international law and that he would have a conflict of interest in assessing
cases against the settlers. The justices rejected the petition.
The mounting atmosphere against the activists on the bench
provoked Beinisch into responding in her farewell speech. She said the public
mood was turning because of a “campaign to damage the court, a campaign of
delegitimization.” Earlier, the Israeli media had reported a “close associate”
of Beinisch warning that “a red line has been crossed [by the court’s critics].
This is a very slippery slope that could lead to Germany of the 1930s, when the
majority rode roughshod over the rights of minorities.”
Decisions to Avoid Decisions
But, certainly in the case of the Citizenship Law, it seems
Beinisch’s own hands in protecting the rights of the minority were not as clean
as she and her supporters have professed. Admittedly, the Supreme Court
president was among those on the bench who upheld the right of Palestinian
citizens to live in Israel with a spouse from the Occupied Territories. But
legal sources close to the case pointed out to Ha’aretz that, despite her
official position, Beinisch had effectively handed the law’s supporters a
majority in the court.
She had done this by delaying a decision for two years after the
final hearings, a time during which Justice Ayala Procaccia, a vehement critic
of the law, retired. She then chose to replace Procaccia with a right-wing
religious judge, Neal Hendel, rather than a more liberal judge. Before
Procaccia’s retirement in July 2011, there had been ample time for the judges to
write up their verdicts. Beinisch’s decision to extend the deadline for arriving
at a ruling and her decision to appoint Hendel had predetermined the outcome,
the sources observed in an article Ha’aretz ran on January 13. One added: “It
appears that, with the Supreme Court currently under attack, Beinisch feared
raising a political and public uproar with a verdict revoking the Citizenship
Law. So although she supported scrapping the law, she didn’t really want it
revoked.… Beinisch doesn’t want to end her term under a cloud of confrontation
with the Knesset.” Gideon Levy, meanwhile, bluntly called Beinisch’s role a
“masquerade.”
In truth, in playing this grand game of deception, Beinisch was
treading in the footsteps of her mentor Aharon Barak.
A November 27, 2011 Ha’aretz editorial noted that the Supreme
Court was perhaps “the most significant force for the preservation of Israel’s
reputation in the world.” Both Barak and Beinisch had cultivated the image of
judicial activism precisely to encourage a view in the West that the court
served as the uncompromising guardian of Israeli democracy. But they had usually
done so while conceding as little as possible to the protection of Palestinian
rights when those rights conflicted with either the core principles of Zionism
or the primacy of the occupation.
This tendency had been evident in both the cases that marked the
zenith of the Supreme Court’s activism at the end of the 1990s. In the torture
case, the judges had appeared to ban torture -- that was how their verdict was
reported around the world -- while actually sanctioning it, so long as the
security services justified its use by claiming a suspect was a “ticking bomb.”
Prisoner organizations noted that torture of Palestinian detainees continued
unabated during the second intifada.
And in the Kaadan case -- the hardest of Barak’s long judicial
career -- the court president did not, as was widely reported, take a
revolutionary step to end Israel’s segregationist policies in land allocation.
Rather, he urged the Katzir admissions committee to reconsider its decision in
relation to the Kaadans’ application. The court did nothing substantive to
enforce the rights of Palestinian citizens to equal access to land or community
membership in the intervening years. And to avert any potential damage from the
Kaadan ruling, the Knesset responded in 2011 by changing the law to give legal
backing to such committees. Much as she had dragged the court’s feet in ruling
on the Citizenship Law, Beinisch also appeared in no hurry to rule on the
legality of the Admissions Committee Law. That task would be left to a Supreme
Court presided over by the anti-activist Grunis.
The right-wing parties in the Knesset have now passed a batch of
flagrantly anti-democratic laws that are being appealed to the Supreme Court. In
January, the first one came before the judges. The Nakba Law punishes public
bodies, including schools, for marking the dispossession of the Palestinians in
1948. All three justices who heard the case, including Beinisch, rejected the
appeal petition, using a new judicial escape route: They could not rule on the
law’s constitutionality until it was possible to see how it was being
implemented -- or until the “petition was ripe for judicial discussion,” as
Beinsch phrased it.
The decision to avoid making a decision -- or the decision to
look activist while actually being conservative -- was the chief legacy of the
Barak-Beinisch years of the Supreme Court. As the right moves to enact new laws
that will further circumscribe the rights of Palestinians in Israel and the
Occupied Territories, it will doubtless be more futile than ever to look to the
court for succor.
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