Four months ago, I was present at a conference organized by The Association for Civil Rights in Israel. The conference focused on a report that the Association had published, entitled “One Government, Two Legal Systems,” which studied the apartheid methods that Israel applies in the West Bank. Among the participants in the second panel of the conference were former Supreme Court Justice Dalia Dorner and Israel’s current Deputy Attorney General, Dina Zilber. Zilber’s talk was mostly apologetic, and not very successful at that: she tried to answer the claim that the State Attorney’s office consistently collaborates with the injustices perpetrated by Israel’s political system in the West Bank. She countered that the Attorney General’s office has no teeth when the government decides not to enforce or apply court decisions. At the end of the panel, I asked Zilber why she insists on defending the government’s position: her job after all is not to represent the government; her job as a civil servant is to defend the civil interest — and, if necessary, defend it from the government. If the government refuses to enforce or apply court decisions, Zilber must make it clear to the relevant minister — normally, his name is Bugi Yaalon, the Minister of Defense — that she would not defend him in the Supreme Court; or better: that he will be prosecuted him for contempt of court.
Her answer — I’m relating it from memory — was that the court system is under attack by right wing politicians and ought to be defended. The impression she left was that the court system must be flexible here; otherwise it would break. This was an impression, but it wasn’t only mine, and Zilbe’s words were interrupted and disturbed a few times by the audience. As far as I can tell, she was the only speaker to whom this happened.
In the last thirty years, the Israeli public and the international community have often thought that Israel’s Supreme Court is not only a liberal stronghold, but in fact the only one in the country; that this Court would stand by Israel’s citizens; and that it ought to be defended against those who seek to undermine it. The height of this conception was in the late nineties, in the aftermath of the ultra-orthodox anti-Supreme Court demonstration — God knows what the demonstration was about, but hundreds of thousands participated, and the police later claimed that there was a genuine fear that the crowd would storm the Supreme Court’s building and take it over.
Ultra-orthodox newspapers drew the Court’s President, Justice Aharon Barak, with a target on his face. The memory of Rabin’s assassination was still fresh in memory, and the Court’s supporters responded seriously to this spreading of hate: the liberal left united to defend the Supreme Court, without asking many questions about it, and the right similarly transformed the Supreme Court into a demonic power, as if it is the only thing preventing the right’s complete rule.
But the truth is that there’s no injustice in Israel that the State Attorney hasn’t agreed to defend, and there’s no injustice to which the Supreme Court hasn’t agreed to turn a blind eye. The Supreme Court’s expertise is in refraining from reaching a decision: for example, it needed fifteen years following the days of the Landau’s approval of “moderate physical pressure” in interrogation methods until it finally forbade torture in clear words. And the Court made a point of doing nothing to enforce this decision, by ignoring time and again the fact that the institutions supposedly in place in order to prevent torture are a joke, and by refusing time and again to order serious investigations into what seemed clear cases of torture.
During the Second Intifada, Aharon Barak’s Supreme Court needed many years in order to decide that the IDF’s policy of using Palestinians as human shields was illegal — a decision that every human being who has ever heard anything about international law would have reached in a quarter of an hour. (A common procedure, for example, was the so-called Neighbor-Procedure: before storming a suspicious house, soldiers would have a neighbor — often, a kid — open its door.) Time and again, the Supreme Court turned a blind eye when the government consistently violated the basic human rights of Palestinians, and as long as the State Attorney’s lies in court weren’t so obvious that accepting them would have made the Justices appear as completely infantile, it was happy to accept the State’s position on every subject.
The result is that the Supreme Court’s Justices were willing participants in every injustice and atrocity incurred by Israel’s occupation methods that one can think of. When the Zionist regime falls apart, there will indeed be room for bringing Israel’s Supreme Court Justices to trial.
If Israel’s liberals still haven’t realized that the Court is part of the problem rather than the solution, three of its decisions from the last week should finally make things clear. The main one is, of course, its decision to uphold the new Boycott Law, according to which a non-violent action such as boycotting products of the Israeli settlements can be prosecuted for compensations. Supreme Court Justice Meltzer referred to the call to refuse buying goods produced in the settlements — i.e., on stolen land, and under the protection of a criminal military regime — an act of “political terrorism.” Justice Naor, the current President of the Court, said that the government is allowed to defend “the projects and institutions that were created by State permission, and sometimes support of the region.” The “region” she was talking about is, of course, the West Bank. The Court’s decision not to override a law forbidding boycott on products that are in the first place outside the limits of Israeli law — especially in light of the wording of Naor’s decision — is a quiet acceptance of the de facto silent annexation that Israel is carrying out in the land of the West Bank. This “region” is officially occupied territory, there are not supposed to be in it any “projects and institutions created by the State’s permission.” Normally, the Supreme Court collaborates with the government’s pretense that such projects and institutions, which contradict international law, do not exist. This time, as in a few other cases (e.g., the Court’s approval of the robbing of the West Bank’s natural resources), it unwittingly let the truth slip: there are such projects; the Court is a tool for the legitimization of a crime, a lasting crime against international law.
As Noam Sheizaf pointed out, the result of the Court’s upholding the Boycott Law is that, in Israel, it is legal to call for boycotting cottage cheese (as Israelis did in the last years of the Social Justice protests) but illegal to boycott the products of the settlements.
But this wasn’t last week’s only decision. Another decision determined that the government is allowed to apply the unjust law called the “Non-present’s Property Law,” while recommending that the government apply it carefully, with measure. The meaning of this decision is that land in East Jerusalem owned by an inhabitant of the West Bank, who doesn’t live on that land — even if he does live only ten meters from it — can be confiscated by the State and handed over to settlers. This has been already done in several cases.
The former President of the Court, Justice Grunis, pointed out that, according to the law, it would be possible to argue similarly that every IDF soldier who was sent by the military to the West Bank would face a demand to confiscate his property, and that this is absurd — but Grunis knows that this isn’t a real possibility; the law is intended to confiscate property of Palestinians in the West Bank, not Israelis. We should point out that Grunis, who upheld the law in court, is famous for being a consistent supporter of property rights, though apparently not the property rights of Palestinians.
The third decision from the last week that should once and for all tear off the Supreme Court’s liberal mask is its decision that Israel’s rabbinical courts would be permitted to hold lists of people suspected of adultery. Yes: such lists are held in Israel’s rabbinical courts, and yes, they are funded by tax money. The rabbinical authority had a good excuse: Jewish law states that an adulterous woman is “forbidden to her husband and forbidden to her lover” — that is, neither her (former) husband nor the man she cheated with are allowed to marry her. In order to prevent this from happening — recall that the rabbinical authority is the sole institution having the authority to legally marry in Israel — the rabbinical court must hold lists of suspected of adultery.
Instead of throwing this argument and whoever made it out of the window and telling Israel’s rabbinical authority to get its nose out of the underwear of women, Grunis determined that, from now on, the rabbinical courts will have to carry these lists officially, and conduct open investigations on issues of adultery. Grunis thereby allowed using legal sanctions — the inability to legally marry in Israel — over a woman who cheated on her husband (if she cheated), something that is of course not a crime. Grunis granted Israel’s rabbinical courts the authority of an inquisition, deliberately ignoring that in rabbinical courts no one even bothers to pretend that women are equal. Jewish law officially forbids the testimony of women, and no woman can take the role of a judge in the rabbinical court. This is not the first time that the Supreme Court is descending into inquisitorial territory: in an earlier decision, the Court mused over the question whether a Jewish woman who converted to Christianity but afterwards returned to Judaism indeed is a true converter; and despite the fact that the Jewish Courts confirmed her Jewishness, the Supreme Court demanded that she submit a report about her Jewish belief to the Ministry of Internal Affairs.
One could argue, and this would not be completely false, that in a State that officially grants extra rights on the basis of religious belonging, one cannot prevent the Supreme Court from acting as an inquisition. The problem has to do with the law and with the lawmaker — not with the judge. This is true, but only up to a point. The collaboration of the Supreme Court with such laws proves that one cannot regard the Supreme Court as a liberal institution. A liberal institution does not demand that a woman litigate in front of three male rabbis who view her as a lesser creature in order to prove that she wasn’t together with this or that man on this or that night. The Supreme Court, in other words, is a tool of the ethno-religious Judaic state in the Middle East — when it is dealing with the Palestinians, and when it is dealing with its own citizens. It aids the war crimes that the State performs against Palestinians in the West Bank on a daily basis, and it provides legitimacy to its inquisitorial courts.
If someone hasn’t understood so far, it is time to wake up from the fairytale that Aharon Barak has written for us — a fairytale that serves mostly himself and his colleagues in the Supreme Courts.
I call everyone reading this post to boycott everything produced in the settlements, in order to refrain from taking part in the injustice of the occupation. Not a particularly novel or original call, but, this week, worth repeating.
