Reinforcing the Occupation: Israel’s High Court

Israel’s Supreme Court Chief Justice Aharon Barak photographed November 2005. (MAANnews/Moti Milrod)

Journalist Gideon Levy wrote in the Israeli daily Haaretz: “From now on, the [Israeli] Supreme Court will act without Aharon Barak. It will, however, presumably continue to act within his legacy, which has authorized nearly all injustices in the territories. Barak, meanwhile, will continue to be depicted in Israel and the world as a pursuer of justice.” The Israeli High Court of Justice under the presidency of Professor Barak has impressed many observers as being many things: progressive, daring, precedent setting. However, the actual results of the Barak Court offer little in the way of comparison to a Court like the Warren Court in the United States. The Warren Court is most remembered for breaking down the cruel and completely undemocratic system of racial segregation in United States schools and for its Miranda decision which said that criminal defendants must be clearly informed of their civil rights, including the right to an attorney. The Barak Court, in contrast (while not detracting from some of its decisions regarding civil rights in Israel), admonished the state on many occasions regarding some of the more egregious manifestations of Israeli Occupation cruelty but did little to dismantle the occupation and, instead, left it intact and actually, as Mr. Levy notes, reinforced it.

Granted, the Supreme Court in Israel, sitting as the High Court of Justice, is under constant pressure from the both Israel’s center and right wing who threaten to constrain its authority to decide constitutional issues. Because Israel has no real constitution and certainly no comprehensive instrument to protect civil and human rights the Court is consistently faced with calls to restrict its so-called Judicial activism. This, however, should not have hampered the Court. The Court should have declared the Occupation illegal. It could have used the clear and highly developed legal reasoning for which it is so well known in order to explain exactly how there is no fundamental difference between an ‘illegal’ outpost such as Kochav Ya’akov West and a ‘legal’ settlement such as Kochav Ya’akov or Ma’aleh Adumim (both of which are over the Green Line, on expropriated and occupied Palestinian land) and that the State has no right to confiscate land in order to build a wall that divides Palestinians and protects settlements that have no right to exist. The Court might have easily relied on international humanitarian law (IHL) which forbids Israel from doing exactly what it is doing in the OPT. The Court left the assassinations policy in place, delivering a meticulously reasoned legal analysis while forgetting or ignoring the human and human rights dimensions of the issue. After all, has anyone thought to ask how it is that Israel manages to know so much about so many ‘terrorists’? Israel has infiltrated Palestinian society, worming its way into the soil of Palestinian life in order to ‘persuade’ Palestinians to join Israel’s counter-insurgency efforts as informers. Most often these offers are too hard to refuse, with the “choice” often being, become an informer or be labeled as one. Furthermore, the Court, in an important decision, by many accounts, ostensibly prohibited torture in Israel, yet it did not refer to the Israeli euphemism “moderate physical pressure” as torture — which it is. Rather than reconciling its decision with international law and absolutely outlawing torture and cruel and inhuman treatment it left the window open and actually paved the way for torture and cruel, inhuman and degrading treatment to continue to be used as a counter-terrorism/insurgency tool albeit, (and perhaps), to a lesser extent than in the past. In short, in these two cases, at least, the Court acted as an agent of the state (albeit a critical one) rather than a fully unbiased arbiter of the law.

In both judgments Court President Barak opens with a factual background that reflects a very specific narrative of Israel fighting terrorism and requiring the use of special means to do so. Essentially the Court, in these two instances, acts as a regulator of these means rather than as an adjudicator of the ultimate justness of these so-called methods of prosecuting its “war against terrorism.” The annexation barrier continues to be built, walling Palestinians off from their kin while setting the boundaries for the Palestinian non-state and the expanded Israeli settler state. In fact, in one of the High Court’s most recent decisions on the wall, it too opened with a similar narrative of Israel fighting terror and the need for security. The wall is being constructed, in Barak’s words, “against this background.” Although in this decision (Mara’abe v. Prime Minister of Israel, H.C.J. 7957/04) the Court ordered the State to readjust the route of the barrier, the Court “endorsed the policy of construction of the wall …” In essence, the ‘progressive’ nature (in the Israeli context) of the High Court of Justice is consigned to irrelevance by its inability or unwillingness to come out against the Occupation and the Court simply acts to regulate the Occupation.

The problem that I want to address is not the seemingly unending catalog of human rights abuses associated with the Occupation, but rather the fact that these abuses are integral components of the primary human rights abuse, the state violence that is the Occupation.

The problem that I want to address is not the seemingly unending catalog of human rights abuses associated with the Occupation, but rather the fact that these abuses are integral components of the primary human rights abuse, the state violence that is the Occupation. Israeli human rights attorney Michael Sfard noted that, as opposed to “human rights neutralists” who may bifurcate the Occupation from its abuses, “the occupation in itself is a human rights issue. Therefore in examining the [Israeli High] Court’s contribution or damage to human rights, one must examine the Court’s role in strengthening or weakening the occupation as [a] legal and political entity.” This observation is absolutely true and it must frame any discussion of human rights abuses in the course of the Occupation and in any reference to Israeli assertions of power, sovereignty and authority over the Palestinian population in the West Bank, Gaza and Jerusalem. The Occupation, furthermore, has simultaneously plagued Israel for forty years and imprisoned the Palestinians as a stateless people with virtually no access to rights protection except for the grossly inadequate appeals to the Israeli legal system, which may have scolded Israel at times while consistently maintaining the bars of the imprisonment that is the Occupation locked. This creates a situation so absurd that even when a human rights attorney ‘wins’ a favorable judgment in the HCJ she actually must inquire into whether the victory gained was actually another plank in the structure of the Occupation.

The Occupation and its deleterious effects continue both inside and outside of the Green Line. Israel forbids Palestinian citizens of the state from marrying Palestinians from the OPT. Migrant workers are still treated as virtual slaves while the State pursues children of migrant workers, who know nothing of their “homelands,” targeting them for deportation. In recent weeks Israel’s Haaretz weekly magazine has run articles about African political refugees fighting for the right not to be deported by Israel and sent back to their native countries, perhaps to be killed, raped or otherwise abused back to back with Gideon Levy’s running chronicle of Israel’s cruelty to the Palestinians — killing, destruction of families and homes, humiliation and expropriation of their humanity — in the name of the Occupation. After forty years of this cruel occupation, which has destroyed Palestinian society as well as Israeli society, Israel harbors no misgivings and certainly fails to display any sense of shame.

Rather, Israel continues its destructive occupation, unimpeded and with impunity. The Palestinian Authority is being dragged into civil war while Israel gloatingly sits back as if this too is part of its plan. For Palestinians, Israel and its Court are two sides of the same coin. While the Court may have shaken its finger at the State on a number of occasions (and in some instances offering genuine relief to individual petitioners) it has failed — perhaps it was unable or frightened — to utter the essential word which each case demanded: No. Instead, Israel pursues its Occupation enterprise to the point of what seems to be no return. Palestinians have been so dehumanized that they fit Hannah Arendt’s definition of those who “have been driven outside the pale of the law” and who, even while enjoying ‘human rights,’ have been so cut off from political community that they have, at various times, been denied even the right to an identity. Again, those ‘rights of man’, which according to Arendt are supposedly inalienable, are unenforceable, even in those states that purport to base their very democratic existence upon them, in regards to peoples who have been divested of their citizenship. The Israeli Occupation has done just that to the Palestinians, removing them from the realm of citizenship and completely rebuffing their aspirations to national identity and sovereignty. Similarly, Agamben’s concept of ‘homo sacer’ in relation to the status of the Palestinians also sheds light on the problem and contributes naturally to Hannah Arendt. Under Agamben, the Palestinian, by virtue of his standing vis-a-vis the absolute power of the Israeli Occupation, has been stripped of even the most minimal status and rights that a slave enjoys. Even a slave had some rights and protections, and increasingly it seems that Palestinians lack even these basic protections.

The Palestinian is subject to the will of the Israeli Occupation. He or she has no voice and no substantial political status. Far too often Israel acts with impunity when life, property and well being of Palestinians are concerned. Even when they gain access to the courts Palestinians find little relief and are subject to the arbitrary power of Israel. Moreover, Palestinians are subject to a separate system of justice, namely “military justice” in which their rights to due process, fair trials and pain free interrogations are severely hampered. Israelis (especially Israeli settlers in the Occupied Territory), on the other hand, are governed by Israeli justice and all too often find that they enjoy virtual immunity from prosecution when they commit crimes — even violent crimes — against Palestinians and when they continue to engage in the structural violence of settlement expansion and construction, which are patently illegal acts. For Palestinians the principle of equal protection of the law does not to apply to them. It is virtually meaningless. Although ruled by Israel they are offered no protection especially in relation to the protections afforded settlers, other Israelis and those entitled to be Israelis (that is Jews). It is, then, obvious that the Palestinian is indeed homo sacer in the eyes of the Israeli occupation system if not in the eyes of Israeli society as a whole. According to Dani Filc and Hadas Ze’ev, “The homo sacer is included in the community as the excluded one, as he who may be killed and his/her killing will not be considered a murder. S/he is included within the law as s/he who is excluded from the protection of the law. .. In certain contexts, such as in the Occupied Territories, people become in fact ‘homines sacri’” (“The fiction of sovereignty and the denial of the right to health care: Israel’s policy in the Occupied Territories (Draft)).

1967 and the subsequent decades of the Occupation proved that Israel was not interested in reconciliation but rather in territorial superiority at the expense of political wisdom, justice and equality

Perhaps the loss of Palestinian human rights stems from another human rights situation that Arendt discussed in relation to the first loss the rigthless suffer, the “loss of their homes … and the loss of entire social texture in to which they were born and in which they established for themselves a distinct place in the world.” This loss is tantamount to a monumental loss of social and political life that only began in 1948, if not before. Perhaps, if not for the 1967 Occupation, which continued this trend of rights corruption, there might have been room for healing and reconciliation. However, 1967 and the subsequent decades of the Occupation proved that Israel was not interested in reconciliation but rather in territorial superiority at the expense of political wisdom, justice and equality. It might be that for this reason at least one well-known academic refers to Israel as an anachronism, as a country that by virtue of its destruction of Palestinian society, occupation and settlement policy has placed itself in the same category as a 19th century colonialist state, such as the United States, which expanded beyond its borders by conquering and settling its western frontier always at the expense of the Native American population.

The Israeli High Court of Justice oversaw and continues to oversee these developments lending the Occupation its judicial imprimatur. Thus Palestinians remain essentially faceless persons, divested of civil and human rights with no real avenue for redress. As Levy writes, following the delivery of Aharon Barak’s final judicial decisions, “the Israeli occupation won significant power. This additional power came in the form of the broad legitimization granted its injustices by the most prestigious institution in Israeli society,” the High Court of Justice.

Yet, it is impossible, to lay the entire blame for this travesty at the feet of Israel’s High Court of Justice. The policy of Occupation is a comprehensive one to which Israel’s citizens have tacitly if not overtly acquiesced over the course of four decades. The extent to which complicity attaches is a complex one yet it is clear that the Occupation constructs a situation in which, at least indirectly, Israeli society bears as much responsibility as Israel’s political, military and judicial authorities. Denial and myopia are Israeli pathologies. Much like the Iraqi is “unmournable” for Americans, so too are Palestinians unmournables for Israelis. Perhaps Israelis see the violence that is inflicted on the Palestinians as incapable of being a violation of human rights, but rather, to continue Cyra Choudhury’s line of thought regarding the United States and Iraq, as a corrective measure “applied” to a people who bear a collective guilt for both being the Other and a ‘criminal’ collective that dared to resist and oppose a patently illegal Occupation. Just as Guantanamo Bay has become the metaphor for how the United States has and continues to act with impunity, perhaps the Occupation can now be seen as Israel’s Guantanamo Bay.

Louis Frankenthaler lives in Jerusalem where he works for the Public Committee Against Torture in Israel. He holds a JD and an MA. The conclusions and opinions expressed herein are those of the author.