The impotence of Israel’s Supreme Court

The Israeli left look to the court to stand up for justice, but how can it when the government ignores its rulings?

The Israeli left protests against settlements but believe they can be stopped by the Supreme Court [GALLO/GETTY]

Ramallah, occupied Palestinian territory – The government of Israel legalised three outposts in the West Bank this week, leading the Israeli “left” to sound the alarms of the dying “peace process” and two-state solution. But in fact, they have merely alerted us of their increasing irrelevance to the struggle for Palestinian rights.

Outposts are unauthorised settlements that emerged in the post-Oslo period, when the government – not wishing to appear intransigent – stopped directly approving new Jewish colonies in the West Bank. The Knesset has had no problem expanding existing settlements, and in reality, outposts receive just as much support from governmental ministries as do the authorised settlements. So the official recognition of three outposts – home to 830 people in total – is not a particularly significant “fact on the ground”.

But what has really distressed the Israeli left is not just the legalisation of these outposts but the means by which the Netanyahu government went about doing it.   

At the beginning of this year, Prime Minister Binyamin Netanyahu’s coalition government established a special committee to determine the fate of the more than 100 unauthorised settlements – or outposts as they are commonly referred to – in the West Bank.

With two out of the three members on the panel possessing pro-settler pedigrees, it was clear the committee was set up to sidestep last month’s Supreme Court ruling that had ordered the evacuation of one such outpost built on Palestinian private land, Migron.

With the likes of Dani Dayon, leading advocate for settlements and chairman of the Yesha Council, expressing his utter delight that the special committee was formed, it was no surprise that that we heard a unified denunciation of the committee by liberal Israeli organisations.

This kind of thinking implies that if Israel is going to legalise outposts it ought to go through the proper channels to do so.

Clinging to a belief

That is the argument of the Israeli legal group, Yesh Din, who recently sent a letter to the committee emphasising that the attorney general and the Supreme Court should be the only relevant authorities that could decide matters pertaining to settlements and outposts in the West Bank.     

“These liberal Zionists cling to the belief that their state is a democratic one – one whose Supreme Court provides the requisite judicial oversight to the current right-wing government that is gripped by messianic zealotry.

Thus, the danger of the committee, for these groups, was the hazard it posed to Israel’s democratic composition.

“This whole thing is quite sad because we are talking about Israeli democracy,” Talia Sasson, a signatory to the letter and author of an exhaustive 2005 report on outpost activity, said to the Jerusalem Post, when the committee was first established.

For Israeli groups such as Yesh Din and the anti-settlement organisation, Peace Now, who see this extrajudicial committee as a means to circumvent the Israeli High Court of Justice, their outcry is a rational response. These liberal Zionists cling to the belief that their state is a democratic one – one whose Supreme Court provides the requisite judicial oversight to the current right-wing government that is gripped by messianic zealotry.

The alarm voiced by these organisations is indicative of a misguided conviction that the State of Israel, when stripped down to its skeletal structure, is designed to govern without messianisim and with truly democratic intentions.

A look at the history of the court reveals that its reputation is ill deserved.

Just as the Israeli state was established in the wake of an ideological conquest of a land, so was its Supreme Court. Israeli legal scholar and lecturer at Haifa Univeristy, Ilan Saban, has described how, within the first few years of the state, the court had already made clear that it would not act as a shield against discrimination for the Palestinian minority in Israel.

Rather, it acted as a “loyal and quiet servant” of the state, aligning itself with the same ideology of a government that had conducted a mass ethnic cleansing and was pursuing an aggressive policy of settling, or colonising, the land with Jewish residents. One such example of this is the court’s preservation of the Absentees’ Property Law that was used principally to prevent Palestinians expelled in 1948 from returning to their homes.

“Generally speaking, it is quite obvious that the Israeli Supreme Court has upheld a system of dispossessing Palestinians – the Supreme Court has never been a buffer for Palestinian rights,” said Amjad Alqasis, the legal advocacy coordinator with BADIL Resource Center for Palestinian Residency & Refugee Rights.

A crumbling edifice

The court has acted as a continuous guard against the return of Palestinians to the land that became Israel in 1948. In January of this year, the High Court again stood by an amendment to the 1952 Citizenship Law (applicable only to non-Jews) that bars Israeli citizens from living with Palestinian spouses from the Occupied Territories, Lebanon, Syria or any country listed as an “enemy state”. Critics see this law as a tool – one that intrudes on the intimate lives of its Palestinian citizens – clearly designed to control demography rather than affect security.

Even when the court seemingly appears to differ with governmental policy, it may simultaneously defer to it, as Jonathan Cook points out in a recent article. For example, in 1999, the Supreme Court banned the practice of torture, but created a gaping loophole for the military to employ torture by stating that it was permissible if the suspect was a “ticking time bomb”.

Furthermore, while it is true that the court is capable of arriving at an independent verdict when it comes to Palestinians, when it does the government rarely abides by the ruling – as we have seen in the case of the separation wall that was ordered by the court to be rerouted off Palestinian private land in 2005, and now, with the issue of outposts.

In sum: regarding Palestinians within Israel, the Occupied Territories or the diaspora, whether the court confirms the policies of the Israeli government or the government flouts the court’s rulings, in no way does the Israeli Supreme Court stand as a bulwark of democratic insurance for Palestinians. It is neither a towering edifice of blind justice nor a particularly potent instrument in any event.

So-called liberal groups need to question the practice of confining their critiques to “policies” while maintaining rapt devotion to a legal apparatus that has facilitated the colonisation of a land and people for 64 years.

Charlotte Silver is a journalist based in the West Bank.

Follow her on Twitter: @CharEsilver

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