Israel's High Court Cannot Hold Back the Legal Avalanche Against the Occupation
It's striking how different Israel-Palestine discourse is in the classroom and out of it'
For 57 years, the Israeli occupation enjoyed the protection of a legal flak jacket of near-perfect quality. The gleaming legal armor with which Israeli society covered its unmentionables, shielded all our crimes and protected every abomination we committed.
For decades, we could plunder the lands of our occupied subjects and settle on them, humiliate them at checkpoints and in the fields, detain thousands without trial, refrain from arresting or trying members of the Jewish gangs that raid them, outlaw all their nonviolent political activity and from the ground, air and sea every few years, while our "legal Iron Dome" – topped by our crowning glory, the High Court of Justice – saved us from the wicked attempts to try our actions in foreign courts.
But the 58th year, which began last week, is not taking its first steps with the assurance the High Court flak jacket gave its predecessors. Over the past year, many illusions were shattered. We believed the most powerful army in the Middle East fully protected our communities, and this was shown to be a terrible illusion; we were certain the intelligence community knew in real time every time some Gazan relieved themselves in the street, only to discover that it apparently knew only that; and we were sure that the prestige of the Israeli justice system obviated interference from international counterparts, only to discover that the gentile judges were at the gates.
The argument of leaders of the just and important fight against the government coup, that the High Court is a flak jacket, is correct, but it has a limitation: As the saying goes, you can't fool all of the people all of the time.
When Israel's Supreme Court faces the judgment of history on the question of whether it fulfilled its most important mission, protecting human and civil rights, it will probably cite its extensive courageous rulings defending and protecting democratic values and fundamental rights. This is not mere lip service. The court genuinely protected LGBTQ rights, acted to prevent religious coercion and fought government corruption.
The justices can rightly be proud of key rulings that barred discrimination against women, banned torture (albeit not completely), and fortified freedom of _expression_ and protest against government interference. The importance of these rulings should not be discounted. They largely shaped the character of Israeli society and gave many within it the opportunity to exercise basic rights that would have been denied if not for the court.
But as they proudly defend themselves in the court of history, rulings they would rather conceal and have forgotten will slip from their robes. Thousands of rulings, too many for the Israeli judicial robe to hold. Rulings that authorized harming of the weakest, who live under Israeli rule but have no rights and no influence on their future; who are not represented by any institution within the entity that governs them.
This is how I picture them – generations of Israeli Supreme Court justices presenting their arguments in the court of history, referring to all the rulings they are proud of (and which the court therefore had translated into English), while their words are continually interrupted by the thuds of other rulings that keep slipping out and falling to the floor.
Israeli security forces demolish a Palestinian home in the West Bank in January.Credit: Israel Police Spokesperson
Rulings permitting deportation, forced population transfer, land appropriation, home demolitions as collective punishment, extrajudicial executions, blocking development for Palestinians, discrimination in every field and a dual justice system: a civil and modern system for settlers, and a draconian military system for Palestinians. The justices raise their voices, perspiration beading their foreheads, but behind them the pile of rulings keep growing, a pile that tells the story of a tyrannical, apartheid regime that their thousands of rulings enabled, even if they occasionally moderated it.
The motions for arrest warrants for the prime minister and defense minister filed by the chief prosecutor of the International Criminal Court mark the culmination of a lengthy process of the collapse of the reputation long enjoyed by Israel's law enforcement system in the international legal community.
From a country that amazed the world in the 1980s after the Sabra and Shatila massacre, when its justice system ousted one of Israel's most powerful defense ministers ever and affected the careers of generals who were found to be indirectly responsible for the massacre, to a country whose law enforcement system turns a blind eye to and even abets the hilltop thugs and those who block and vandalize trucks carrying humanitarian aid.
The requests for arrest warrants signal that the international legal community no longer considers the Attorney General's Office, the Israel Police, the military prosecutor and the Supreme Court as law enforcement institutions that meet international standards, at least in regard to the Palestinians.
And why should we complain? For decades, the policy of near-total immunity for soldiers who harm Palestinians has been in place. There are hardly any investigations of crimes committed by soldiers, and the investigations that do take place are basically a joke. This is a system in which the army and the police abet violent settlers and whitewash their crimes. A system in which the State Prosecutor's Office aids and abets the processes of annexation and apartheid and offers protection for unbridled methods of combat, in the belief that statements to the media about "strict adherence to international law" are sufficient to protect Israel from legal proceedings.
Palestinians flee a village near the Meitarim Farm outspost in South Hebron Hills, West Bank.Credit: Alex Libak
For decades, the Supreme Court has been distorting international law as it is understood in most of the world. This institution may once have earned remarkable prestige, but today it is mainly known as a court that enables Israel to transfer communities from the South Hebron Hills, expropriate land in the West Bank and legitimize the settlement enterprise that the rest of the world considers illegal. Thus, the police, the prosecution and the High Court of Justice have gone from being Israel's flak jacket to a paragraph in the indictment against Israel. It took time, but the Israeli justice system is no longer able to conceal its real role within the occupation apparatus.
We are currently witnessing a legal avalanche against Israel, with the ICC prosecutor's requests for arrest warrants for its leaders, the provisional measures issued against Israel by the International Court of Justice, courts in various countries not tossing out cases that have to do with Israel's actions on the shopworn grounds that "there are judges in Jerusalem." One major reason for this avalanche is our (independent, professional and often praiseworthy) judiciary's insistence on assisting in the violation of the laws of occupation and war.
Welcome to the 58th year.