Israel’s Supreme Court and confused democracy

by Yaniv Reich on October 27, 2010

Israel’s ever-dwindling defenders frequently cite the country’s judicial system as evidence of the robustness of Israeli democracy. They point, for example, to the fact that the court has prohibited the Israeli military from using civilians as human shields or has ordered the segregation wall being built in the West Bank to be rerouted in a couple specific cases. (The persistent basis on which court rulings are systematically ignored is, of course, never cited.) Or they might reference that an Israeli Arab (Salim Joubran) has been a permanent justice on the court since 2004. How could Israel be an apartheid state, the argument goes, if there is an Israeli Palestinian on the highest court in the land?

As established by the Rome Statute of the International Criminal Court in 2004, apartheid is by definition:

“An institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”

So the fact that one Israeli Palestinian has made a bright and important career for himself has precisely nothing to do with the existence of “systematic oppression and domination” along racial/ethnic lines. The fact that Joubran exists as a Supreme Court justice indeed signals that Israel differs from the South African model, but it means nothing about whether the crime of apartheid exists in Israel/Palestine today.

Israel’s Supreme Court has a motto

But I digress somewhat and would like to return to the Supreme Court itself, ostensible beacon that it is of Israeli democracy. When I was researching recent court rulings, I noticed a very strange website design, which I had never picked up on before: Israel’s Supreme Court has a motto.

The Supreme Court Fights Terrorism?

Apparently, Israel’s Supreme Court’s objective is to “fight terrorism within the law”.

Beautiful sounding but mindbogglingly problematic. The job of the judiciary, in case the court forgot, is to interpret the laws, that is, to consider ambiguous legal interpretations, adjudicate between those interpretations, and then establish an official understanding of that law in the country.

First of all, “within the law” is a concept that is actively decided in the course of the Supreme Court’s regular work, a fact that makes their apparent deference to the law as it now stands to reflect, at the very minimum, an insufficient work ethic. Yet combined with the directive to “fight terrorism”, the Supreme Court is sending ambivalent messages about its role in society. Worse still, the issues faced by the court are such that “fighting” terrorism and domestic/international laws will often be in conflict. No other OECD country’s judiciary that I know of has a similar statement of purpose that potentially conflicts with the court’s primary function.

How, then, can we be sure the Supreme Court is strictly interpreting law versus waging a political battle against terrorism and/or other forms of resistance to Israel’s brutal military occupation of Palestine? I would argue: “we can’t”. Irrespective of our prior beliefs on this, however, the Supreme Court’s banner raises serious questions about their commitment to law.

In the end, this question is best answered through the Supreme Court’s actual decisions, which can be assessed on the degree to which they privilege “fighting terrorism” to “within the law”, or vice versa, including the international law around the crime of apartheid. On this, the record is decidedly mixed, as we have covered on this blog before.

This is yet another example of Israel’s peculiar manipulation of democracy to serve its own ethnically-based, nationalist agenda.

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{ 6 comments… read them below or add one }

1 Gregory Pollock November 4, 2010 at 11:25 pm

I am mostly if not completely on your side, I suspect. But, a useless follower of Gandhi, I think much of self examination, so I have a request of you. If you were resident in Israel during the suicide bombings of 2000-1, could you describe how you felt, how others felt, how daily behavior was affected? That time, I suspect, congelled the present nationalist resolve (although it had been growing for some time). I understand and agree that the plight of the Palestinians must be ever said. But would not your side be stronger if it could articulate the bombing period, refuse to let right nationalists own it?

You see, I had a different reaction to the Supreme Court’s motto, recognizing that that Court rests in a society seething in anger, hurt, and righteousness. I took “Fighting terrorism within the law” as, first, a check on reply but, as well, an attempt to remove the conditions which generate terrorism. That motto is adrift; no need to push it towards the right nationalists, who are now I guess mainstream Israeli opinion.

I found your wonderful site through Chris’ http://endoccupation.blogspot.com/

I wish and hope that people like you and he can aid each other so distant on the net. People such as you, plural, in speaking, show other ground is possible. Through you others may come and stand.

2 Yaniv Reich November 5, 2010 at 11:26 am

Dear Gregory Pollack,

Thanks for your thoughtful note. In fact, I was living in Israel all through the peak of Palestinian violence during the Second Intifada. I passed through and by the charred remains of bombed civilian sites in Tel Aviv and Jerusalem, areas that were a part of my usual routines. I rode buses on a daily basis. I know as well as anybody the psychological impacts of feeling insecure at almost all times in public.

But life goes on. While all Israelis had at that time the threat of violence forever in mind, and many still do, people’s behavior changed very little. The popular cafes and restaurants were full, as usual, and people lived roughly as you would expect given the actual probability of being hurt or killed in a suicide attack (i.e. exceedingly low). Perhaps the biggest (nonpolitical) change was the emergence of a set of shuttle vans that zoomed along the bus routes, which were smaller and less likely targets than a large city bus.

You are right that the Second Intifada did much to affect negatively Israeli attitudes. This shift, however, was a consequence of deliberate manipulations by Israeli and American leaders, and an inability on the part of most Israelis to think critically about what Israel was offering and what any reasonable Palestinian should have been willing to accept. There was simply such a massive difference between the miserly Israeli “offers” and the most elementary requirements of Palestinian self-determination that Israelis should have been able to reason that the eruption of the Second Intifada reflected something much more significant and real than simply Jew hatred, which was the preposterous take-home message by many Israelis.

Perhaps I have not spent enough time fighting that Clinton/Barak and then Israeli rightist version of the the collapse of Oslo and the rise of the Second Intifada. I do remember writing a blog post on how Israel deliberately, as part of a well-formed strategy, responded to initial Palestinian unarmed demonstrations with extraordinary violence in order to “fan the flames” for political ends.

(You can fine the post here: http://www.hybridstates.com/2010/10/killing-peace-how-israel-seeks-violence-for-political-ends/)

I acknowledge that the court motto can be interpreted differently than how I did. But I respectfully disagree with your read of it, which I consider to be too generous, especially in light of actual decisions and then, subsequently, the IDF and political establishment’s disregard for so many rulings. Still, this is a perfectly reasonable disagreement to have and I thank you for sharing your thoughts on this blog.

Thanks for reading and contributing.

3 Gregory Pollock November 5, 2010 at 6:03 pm

Disregarding rulings is a different issue. This happened in the US as well in the 1830’s over the issue of–Indian removal. I have learned from reading USSC court opinions–and dissents–that is often necessary to prepare the future battlefield thereby.

I live in the US and am pre-excluded from health care. So when I say you must be generous sometimes, I have reason for saying it. Your battle is unimaginable to me. But by being generous on something like the motto, you might give others a place to stand.

An essay on what you saw might be useful. My unasked advice is–don’t give such ground to your opponents.

Keep writing.

4 Yaniv Reich November 5, 2010 at 7:39 pm

You are certainly right that the disregarded rulings are a different issue, which I sort of casually lumped in there. But the substance of the decisions themselves is, I would argue, fair game, and on that point, there is substantial grounds to criticize the court for doing more to “fight terrorism” than to uphold the law.

I have a few posts on this at various points in time, and there is plenty of material on the web.

Thanks again for contributing!
Yaniv

5 Fay Pugh December 23, 2010 at 8:47 pm

I am mostly if not completely on your side, I suspect. But, a useless follower of Gandhi, I think much of self examination, so I have a request of you. If you were resident in Israel during the suicide bombings of 2000-1, could you describe how you felt, how others felt, how daily behavior was affected? That time, I suspect, congelled the present nationalist resolve (although it had been growing for some time). I understand and agree that the plight of the Palestinians must be ever said. But would not your side be stronger if it could articulate the bombing period, refuse to let right nationalists own it? You see, I had a different reaction to the Supreme Court’s motto, recognizing that that Court rests in a society seething in anger, hurt, and righteousness. I took “Fighting terrorism within the law” as, first, a check on reply but, as well, an attempt to remove the conditions which generate terrorism. That motto is adrift; no need to push it towards the right nationalists, who are now I guess mainstream Israeli opinion. I found your wonderful site through Chris’ http://endoccupation.blogspot.com/ I wish and hope that people like you and he can aid each other so distant on the net. People such as you, plural, in speaking, show other ground is possible. Through you others may come and stand.

6 Yaniv Reich January 4, 2011 at 6:24 am

Fay, did you notice that you (accidentally?) reproduced Gregory Pollack’s comment exactly? Did your comment get cut off somehow?

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