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'There are judges in Jerusalem!'

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Israel Justice Minister Ya'akov Neemanby Adam Keller

A week ago the extreme right paper "Makor Rishon" published  an article praising the efforts of Justice Minister Ya'akov Neeman to introduce significant changes in composition and orientation of the Supreme Court. In illustration it was accompanied by a cartoon depicting Supreme Court President Dorit Beinish screaming in rage and frustration when the minister moves his pawns in sophisticated gambits on the chessboard.

But not all moves are successful. This week the Israeli Bar Association has elected its representatives to the Judicial Selection Committee, which would choose new judges for the Supreme Court,  and they were not at all to the liking of the Minister and his adherents. Not that they are deterred – the new ploy is to pass in the Knesset a bill which would overturn the Bar Association's choice and force the lawyers to elect new representatives, more to the government's liking... Is this a game of chess? It looks more like a  boxing bout without rules.

Yaacov Katz, a leader of the settlers in the Occupied Territories and a Knesset Member for the National Union Party, initiated a bill which would make Justice Asher Grunis - who rarely interferes with the acts of the government and the army – into the next President of the Supreme Court. "This is a bill to return power to the people and wrest control of the Court away from a small miserable Tel Aviv elite group" said Katz.  "All opinion polls confirm that confidence in the Supreme Court is meager. Only the Left and the Arabs express any trust in this court, the Jewish People regard it with contempt."

Coincidentally or not, the same newspaper which published Katz's opinions also featured another item about the same Supreme Court.  The twins Mohamed and Mahmoud Atun live in Wadi Hummus which is part of Sur Baher, itself part of East Jerusalem. In East Jerusalem, Palestinians may only live if granted a residence permit  by the Interior Ministry in the Government of Israel. Such a status the Israeli authorities refused to grant to the young Atun twins, though their father is an undisputed Permanent Resident of East Jerusalem. Since 2008 Ahmad Atun had been conducting as struggle on the status of his sons - but the Supreme Court heard his appeal and decided that the twins would not get the residency permit.

Indeed, Supreme Court President Dorit Beinish did rule that it is unacceptable to split a family in that way, the father having the right of residence at his home and his children denied the same - but she remained in the minority. Judge Grunis, the government's designated President of the Court, ruled together with his colleague Edmund Levy that such splitting of a family was acceptable "in order not to create a precedent".

"Now my sons are imprisoned in the house. Any police officer can at any moment arrest them. They can't go out to study or work or get married" said the father, whose last hope was dashed.

If such was the ruling of a "left-leaning court", what would have been the outcome in a court tending to the right?

***

The Supreme Court of the State of Israel is part of the government structure. It has shared interests and a shared system of values with the government, the Knesset, the Israeli Defense Forces and the Security Services,  Shabak and Mossad. It rules according to the laws made by the Knesset (though having wide powers to interpret them) and acts on the presumption that the government's acts and policies are legitimate (unless clearly proven otherwise). Its judges certainly do not want to make a move which would be – or would be perceived as being – harmful to National Security or undermining the foundations of the Zionist enterprise.

But the Supreme Court justices are also part of the international legal establishment, along  with the Supreme Court judges of the United States,  and those of the European Court of Human Rights in Strasbourg and of the International Court in the Hague and the jurists and professors in prestigious Faculties of Law throughout America and Europe. They would certainly not want to take a step which would be (or could be construed as) a violation of the norms of equality and democratic conduct formulated in Western democracies over the past fifty years.

So what do the judges do? They look here and they look there and compromise in this direction and in that. Immediately after the war in 1967 Meir Shamgar, then President of the Supreme Court, decided to hear and rule on the petitions of Palestinians from the newly conquered territories and pass under judicial review the actions of the army. But the court also decided that such petitions cannot be based on the Fourth Geneva Convention, and that the State of Israel is not obligated to do adhere to the letter of that Convention, but merely to its  "Humanitarian Principles".

For example, the Court ruled that the State of Israel is not obligated to adhere to the article in the Geneva Convention which prohibits an Occupying Power from moving and settling its own citizens in the Occupied Territory – since ruling otherwise would have rendered illegal any Israeli settlement whatsoever, and put the court in complete opposition to the basic government policy. In March 1979, when a petition was filed against the expropriation of Palestinian land for the establishment of the settlement of Beit El, north of Ramallah, the General in Charge of the IDF Central Command provided an affidavit to the court stating that "civilian settlement is part of Israel's system of defense" and therefore the expropriation was required for security purposes. The court did not want to dispute with the professional opinion of a general and accepted the state's position. Then Prime Minister Menachem Begin declared jubilantly on the Knesset podium: "There are judges in Jerusalem – settlements are legal!" and it was the left which was incensed at the court.

But half a year later, when a petition was filed against the expropriation of land near Nablus for the Elon Moreh settlement, the retired generals Matti Peled, and Chaim Bar-Lev filed affidavits stating their professional opinions which were contrary to that of the incumbent officers, stating that settlements do not in any way serve National Security but to the contrary impose on it a heavy burden. And this time the judges took up the dissenting opinion and determined that  expropriating private land in order to build settlements was unacceptable and that the land in question must be returned immediately to its owners. This time it was the adherents of peace who proclaimed "There are judges in Jerusalem", and briefly the settlers and their supporters panicked. But soon the state found methods of declaring vast tracts of land to be "State Lands", making creative use of various obscure laws leftover from the Ottoman Empire, and even if they had been for generations in possession of Palestinian farmers such State Lands were made available for the erection of Israeli settlements, all perfectly legal according to the Supreme Court...

And later arose the question of the Separation Wall (or Fence or Barrier or various other names), and was under review at the International Court in The Hague. Whereupon that court held that the Fourth Geneva Convention in its entirety does apply to the State of Israel, and that Israel should not build a separation wall inside the Occupied Territory, blocking Palestinians villagers from having access to their land.

Should Israel want to build a border fence to defend its borders, the right place to erect it is on the Green Line, the 1967 border which remains the internationally recognized border of Israel. And then the Supreme Court judges of Israel came up with their own different verdict on the same issue. They determined that building a Separation Wall inside the West Bank was in itself acceptable, but the injury caused to Palestinians must be "proportional". And therefore the court held that in some places the fence had to be moved and (some of) their lands be returned to the Palestinians. And right-wingers were extremely incensed at the leftist court which helps the Arabs and damages National Security. For their part, the military authorities were very slow in implementing the ruling and came to the brink of contempt of court, but in the end the Wall was indeed moved in several locations, which made a lot of difference to the specific farmers whose land it was.

And on another field – an Israeli middle class couple named Kaadan wanted to  purchase a home in a newly established town – and were turned down because they happened to be Arabs. And when they appealed to the Supreme Court, the  state authorities answered to the court that it was true, an exclusively Jewish community was being created in which there was no room for Arabs, and there was nothing unusual about that – establishing Jewish-only communities was and had always been a cornerstone of Zionism. At the time, Supreme Court President Aharon Barak stated "This is the most difficult decision of my life",  but after years of deliberation he and his colleagues decided to accept the petition and require the state authorities to allow the Kaadans to buy a house, like every other Israeli citizen irrespective of religion, race or ethnicity. It took the couple several more years and bureaucratic struggles until they actually got into their home. In the meantime the authorities found a new method – establish "Selection Committees" which are empowered to reject those who want to buy a home in a community because "they don't fit the social fabric", and this method was given the sanction of a Knesset law passed a few months ago. In the Supreme Court, appeals on its legality are still pending…

And there also came up the question of the interrogation methods used by the Shabak Security Services. For years, when the lawyers of Palestinian detainees appealed and asserted that their clients were being tortured, the court refused to hear the petitions on various technical grounds. When Human Rights organizations lodged an overall petition about such methods of torture ("moderate physical pressure"), the deliberations dragged on for years without issue, and the Shabak made strong hints and suggestions that should the Judges intervene  in the interrogation methods, they would be held responsible for any upsurge in acts of terrorism which would follow. At that time, Supreme Court President Aharon Barak used to stay some time each year at the prestigious Law School of Yale University in the In the United States. Some of the Yale students were going to hold a protest against "the Supreme Judge who allows torture." With great effort, the heads of the Faculty prevevailed upon the students not to hold the demonstration which would have shamed their Guest of Honor, but shortly after the return of Barak to the Supreme Court in Jerusalem he accepted the petition of the Human Rights groups and banned various methods of "moderate physical pressure" which were held to be contrary to International Law. (The Shabak later invented new methods, a bit different than those which the Court forbade...)

 And then, there came back tot the Supreme Court the issue of settlements  and the land on which they were established.  Peace and Human Rights organizations collected and brought evidence that despite the great abundance of "State Lands" available to them, the settlers allowed themselves to seize the private land of Palestinians, without any kind of expropriation or legal procedure - robbery and theft, pure and simple. And the court ruled that these settlements must be evacuated, and particularly determined that the settlement of Migron – which has become a kind of symbol and rallying point for the settlement movement - had to be evacuated no later than March 2012. And the settlers and their supporters cried out very loudly, and threatened civil disobedience and large scale violence and a multitude of random attacks on Arab property which they call "price tags".  And Foreign Minister Lieberman threatened to leave the cabinet and shake its stability, should the Supreme Court ruling on Migron be carried out. It might be all this which created for the Netanyahu Government a feeling of emergency and urgency to change, ahead  of March 2012, the composition and orientation of the Supreme Court...

***

So - who are you, the Supreme Court of the State of Israel? The last remaining defender and bastion of democracy and Human Rights, or just the "Good Cop" in a role-playing game which the State of Israel is playing? Or a bit of this and a bit of that, and not quite either? The Supreme Court is constantly looking in two directions, making all the time opposing considerations, and reaching all kinds of compromises – sometimes, rotten compromises. For many years, also the Government of Israel wanted to have such a Court, and found it quite useful. "There are judges in Jerusalem!" can only be said with conviction when these judges have some international credibility in the world.

But a different time has come upon us, when different tunes are sung. It is a different kind of a Right Wing – one which feels no shame or embarrassment, which no longer feels a need to put on a mask. A government appointing as its chief diplomat an Avigdor Lieberman, deliberately making him the face which Israel presents to the world. And now they want the Supreme Court to toe the line, too.Let the judges look in one direction only - at the government and the Knesset and the Army and the Security Services – and definitely turn their backs on colleagues in America and Europe and forget all that crap called democracy and Human Rights. To achieve this, ingenious tricks are devised and procedures are twisted out of shape and laws are changed in a twinkling and every obstacle crushed through with a heavy hand and everything done openly and brazenly. No more hypocrisy.

Is it possible? Certainly, it's possible. Gone are the days when you could say about anything in Israel "this is unconceivable." All bets are off, everything is open, everything is conceivable. Even a Supreme Court in the shape and image  of the current majority in the Knesset. Why not? Also in North Korea there is  an institution called The Supreme Court. Also in Syria.


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