Monday, January 16, 2012

A façade has crumbled, the Israeli supreme court can no longer pose as defender of justice and democracy

No more is there reason to defend an institution that issued the shameful rejection of the petition against the amendment to the Citizenship Law. A court that vets this nationalistic and racist amendment, which discriminates against Arab citizens of Israel solely on the basis of their ethnicity, which in the name of security is prepared to deny basic rights and destroy the lives of thousands of Israeli families, which makes false use of security to try to cover up its racism - is an institution that must no longer be defended.
That is what Haaretz columnist Gideon Levy wrote on 15 January about the Israeli Supreme Court, after it had rejected by a 6-5 vote a petition by the human rights organisations Adala and the Association for Civil Rights in Israel (ACRI) to abolish the Citizenship Law. Actually the court did so for the third time. The same happened in 2005 and 2006. 
 The Citizenship Law prohibits inhabitants of Israel to live together with their spouses from the West Bank (or, for that matter, from 'enemy countries' like Iraq, or Syria). The law was adopted in 2003 after the Second Intifada. It was meant to be temporal, but was prolonged a few times.Thousands of couples - almost all of them Palestinians - suffer from it, among them a particular great number of inhabitants of East Jerusalem. The eastern part of the city was annexed by Israel in 1967, which had as a consequence that its Arab inhabitants came to live inside Israel. Since the city in recent years has become more and more cut off from its hinterland, the thousands of Jerusalemites who married partners from the West Bank are in big trouble. (For more information about the law and the discrimination of Palestinian inhabitants of Israel as far as family (re)unification is concerned, turn to the site of the organisation Miftah, which gives a good overview). 

 The Citizenship Law is, as the minority of the court indicated, a breach of Israeli constitutional rights. It is also discriminatory, als judge Dorit Beinisch, the outgoing president of the court noted, as it robs  almost exclusively Israels Arab population from their right to live together with the partner of their choice. The majority of the court concurred with the view that couples have the right to live together, but nevertheless uphold the law out of 'security considerations'.  Or as judge Miriam Naor put it, because 'it was not evident that 'the fulfillment of family life' had to take place specifically in Israel'.

Building of the High Court in Jerusalem.
 I wrote about the court's decision on my Dutch blog, but I want to repeat it here, as the decision about the Citizenship Law was the last in a string of events that ought to make it evident for even the most frantic defenders of the court - see what Gideon Levy wrote - that it cannot any longer pretend to safeguard justice and democracy. Just have a look, we go back step by step:
In the first week of January four new members of the court were nominated. Among them was m Noam Sohlberg (50), who is not only a rightist with a disputable record as a judge (for instance  he once acquitted a border policeman who killed a fleeing Palestinian by shooting him the back, on the ground that the officer rightly may have believed that his life was in danger), he is also an inhabitant of the settlement Alon Shvut. As such he is the first judge in the court who - according to international law - is committing a criminal act by living on land that is occupied.The court itself, however, was swift in rejecting objections against Sohlberg, brought by the organisation Yesh Gvul, on the ground that nowhere in Israel's Basic Laws is mentioned anything that indicates that the place where a judge is living might disqualify him for his function....

 On 5 January the court rejected a petition (again by ACRI and Adalah) against the so called Nakba-Law. The law gives the minister of Finance the authority to withdraw funding from institution sand associations that (among other things)
'commemorate (Israeli) Independence Day or the day of the establishment of the state as
a day of mourning'.
The court admitted that the law raised questions about its constitutionality (i.e. concerning the freedom of speech), but said that the time was not yet ripe for the court to take a decisions, as the meaning of the l,aw depended on its interpretation and it had not yet been applied. ACRI and Adalah commented - rightly so in my opinion - that of course the law had already an effect on the freedom of speech before it ever was implemented, as many institutions would censor themselves in order to avoid putting themselves at risk.

On 28 December 2011 in another strange decision the court ruled that the ten stone quarries on the West Bank which are in Israeli hands and mine stone almost exclusively (94%) for use in Israel, may continue their work. This goes against article 55 of the The Hague Convention, which states that occupying powers shall safeguard the natural resources of an occupied land. But the court gave the rather twisted opinion that the quarries employ Palestinians and also pay taxes to the Palestinian Authority and therefor work in the interest of the PA. (For the full text of the decision click here)

So, four highly disputable decisions in the time of no more than some two weeks.According to some it shows that the supreme court is rather toothless and afraid to go on a confrontational course with the government and the majority in the Knesset. I personally believe that it is in fact even more serious than that, since it is really a structural feature of this court. In the seventies it refused to rule against the settlements and went no further than declare that no settlement could be established on private Palestinian lands, which for a number of reasons (military requisitioning, non-recognition of Palestinian property deeds) was just no more than hollow words. In 2006 the court condoned targeted killings, under the condition that it was only allowed if there were no alternatives and if there were no others nearby who's lives would be put at risk (which in practice remained no less a dead letter). In 1999 the court refused to speak out against the use of 'psychological and physical pressure' during interrogations. These two last decisions put together mean that Israel is the only state in the world where torture and murder are legally permitted.
 Finally there were several decisions concerning the building of a 'Separation barrier' (better known as The Wall) deep in Palestinian lands, whereby explicitly also the decision by the International Court of Justice from 2004 was rejected, that the Wall had been built unlawfully on Palestinian land. 

Altogether the result is not exactly a picture of a court that is a strong bastion against the erosion of justice and democracy. Rather a court that - gradually - mirrors the changes in the Israeli social and political landscape towards more exclusivist attitudes, and a court that always bends justice to serve the magic word 'security' whenever the authorities throw it on the table. An institution that must no longer be defended, as Gideon Levy wrote. Or, like B.Michael, another columnist wrote after the settler Sohlberg had been appointed a judge in the court:  the State of Israel no longer deserves a Supreme Court without Sohlberg. It deserves a court in its own image. Someone "representative," as the MK Zeev Elkin types are loudly demanding. We should do as they wish. Because from now on, the court really is far more representative of the State of Israel. It suits the state far better.      

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