The Myth of Israel's Liberal Supreme Court Exposed
Little more than a decade ago, in a brief interlude of heady optimism about the prospects of regional peace, the Israeli Supreme Court issued two landmark rulings that, it was widely assumed, heralded the advent of a new, post-Zionist era for Israel. But with two more watershed judgments handed down over the winter of 2011-2012 the same court has decisively reversed the tide.
Palestinians, both in the Occupied Territories and inside Israel, will pay the biggest and most immediate costs of the new decisions. In one, the Supreme Court has created a new concept of “prolonged occupation” to justify further Israel’s denial of basic protections to the Palestinian population living under belligerent military rule. In the other, it has upheld the right of the Israeli state to strip the Palestinian minority inside Israel of one of its fundamental rights of citizenship.
Both of these new rulings threaten to unleash a torrent of more aggressive legislative and administrative measures against Palestinians on both sides of the Green Line that separates the Occupied Territories from Israel proper, as the center of political gravity in Israel drifts steadily rightward.
The judicial mood of today is a far cry from the high spirits of the late 1990s, when the Supreme Court was led by Aharon Barak, feted by his counterparts in the United States as a paragon of enlightened liberalism. Barak is widely credited with entrenching in Israeli jurisprudence the philosophy of “judicial activism.” In practice, Barak’s activism meant that he reserved to the Supreme Court the right both to interpret the law creatively when it lacked clarity and to weigh critically and, if necessary, strike down measures passed by the Knesset when they conflicted with one of Israel’s 11 Basic Laws.
Israel lacks a constitution, but Barak had sought inspiration for what he and others termed a “constitutional revolution” in two liberal Basic Laws passed in 1992 -- one on Freedom and Human Dignity, the other on Freedom of Occupation. He treated these laws as akin to a bill of rights.
It was Barak’s activist Supreme Court that in 1999 -- belatedly, after years of petitioning by human rights groups -- found against the common practice of torturing Palestinian prisoners. The judges prohibited the Israeli security services from using “moderate physical pressure,” as Israel termed it, except in cases of Palestinians who were “ticking bombs,” that is, detainees believed to be withholding information needed quickly if lives were to be saved.
And it was a similar activism held responsible in May 2000 for a court decision in favor of the Kaadans, a Palestinian family with Israeli citizenship that had been barred five years earlier from Katzir, a rural community in northern Israel. Katzir’s admissions committee had justified the family’s exclusion on the grounds that it -- like nearly 700 other such communities -- was intended for Jews only. Describing it as “the most difficult decision of my life,” Barak ordered Katzir to reconsider the Kaadans’ application for admittance.
Many observers assumed that these rulings paved the way for a more tolerant and democratic Israel, as the country finally began to shake off the encumbrances of ethnic chauvinism, security obsessions and demographic fixation. Now held properly to account by a more activist court, the occupation would deserve the term “benign,” just as the peace process inaugurated at Oslo in 1993 shepherded it to oblivion. And the Kaadan ruling promised to end decades of communal segregation of Jewish and Palestinian citizens; loosen the oppressive system of ethnic control over Israeli territory, most of which had been nationalized for the benefit of worldwide Jewry rather than the general Israeli populace; and erode the second-class nature of citizenship for non-Jews. Even as one ruling portended the expiry of the occupation, the other promised to give concrete form to Israel’s description of itself as a “Jewish and democratic state,” regarded by many before and since as an oxymoron.
“As If Annexed”
But the aura of hope that allowed observers at the time to interpret these rulings as revolutionary slowly faded through the years of the second intifada, which began in the fall of 2000. The nadir was reached in December and January as the Supreme Court issued two major decisions, again relating separately to the Palestinians in the Occupied Territories and to those inside Israel. In both, the judges showed that, far from seeking to refashion the Jewish state, the court had emphatically chosen the role of apologist for the very Zionism it had once looked set on eradicating.
The first ruling, issued on December 26, 2011, when it stood a good chance of going unnoticed in Western capitals, concerned the long-standing exploitation by a handful of Israeli firms of a major Palestinian natural resource in the West Bank: its quarries. Yesh Din, an Israeli human rights group that had petitioned the court three years earlier, argued that Israel was violating international law by plundering the underground stone of so-called Area C, the nearly two thirds of the West Bank that was assigned in the Oslo accords to Israel’s temporary control. The benefits of the trade in quarried stone -- estimated by the Palestinian Authority (PA) to be worth $900 million annually -- had accrued not to the local Palestinian inhabitants but to “the needs of the state of Israel, the occupying power,” Yesh Din pointed out. Eleven Israeli companies operated the quarries, exporting 94 percent of the stone to Israel.
The case should have been cut and dried. According to Article 55 of the 1907 Hague Convention, the occupying power is required to “safeguard the capital” of the occupied party’s natural resources and “administer them in accordance with the rules of usufruct,” the principles governing fair usage. But a panel of Supreme Court justices, headed by Dorit Beinisch, Barak’s successor and inheritor of his activist mantle, found otherwise.
The court accepted the Israeli state’s position that Israel’s use of the quarries was limited and did not amount to destroying their “capital.” Rather, it noted, the economic development of the occupied territory could not be frozen indefinitely given that the occupation was “prolonged.” It was necessary to “adapt the law to the reality on the ground,” observed Beinisch, and opening the quarries was part of the Israeli military’s development efforts in the West Bank. Palestinians benefited because the quarrying firms provided training and employment, and some of the stone was sold to them. In addition, noted Beinisch, the Palestinian Authority’s consent to the quarrying operations was implicit in its signing of the 1993 Oslo accords, and the quarries’ fate would ultimately be decided in peace talks.
The judges were apparently also impressed by two concessions the state had made after Yesh Din submitted its petition. One was an undertaking not to open any new quarries. The other was a commitment that all the royalties paid to the state by the Israeli quarrying companies, amounting to about $7.5 million a year, would be directed to the Civil Administration, the Israeli military government that rules over Palestinians in the West Bank.
There were obvious problems with the ruling, as several observers were quick to point out. Assessing the decision as an example of Israeli “colonialism,” Aeyal Gross, a law professor at Tel Aviv University, observed that the judges could not find legal sanction for the exploitation of Palestinian resources in the Oslo process. The accords were intended to lead to a final agreement by 1999, more than 12 years ago, and under their terms responsibility for mining and quarrying was supposed to be gradually transferred to the Palestinians.
Similarly, lawyers for Yesh Din noted that the Oslo accords no more indicated the PA’s consent to Israel’s exploitation of the West Bank’s mineral wealth than they signaled its acceptance of the legality of the settlements. In any case, they added, the PA had no authority in international law to consent to the violation of the Palestinian population’s rights. Or, as Gross put it, “International law does not allow the rights of residents of [an] occupied territory to be curtailed via agreements signed with the occupying state.” Also, it was an extraordinary argument for the court to make that the Palestinians benefited from the plunder of a Palestinian natural resource by Israel because the minor royalties -- set at less than 1 percent of the annual value of the trade in stone -- were paid to the Civil Administration. Israel thus assigned the royalties to cover some of the costs of military occupation.
But there was an even graver implication. In a statement, Yesh Din observed that the court ruling “revolutionizes the Israeli application of international law of belligerent occupation,” establishing a doctrine of “prolonged occupation” that existed in no finding by any other court in the world or in any academic literature. Gross made a related point: The decision revealed that “under the cover of a temporary occupation, Israel is conducting a creeping annexation of the West Bank and its resources” -- and the court was effectively rubber-stamping it.
“Prolonged occupation,” Yesh Din added, set a “dangerous” precedent that could be used by Israel to legitimize its many other exploitative acts, such as its moves “to pump water found there, to transfer archeological findings out of the occupied territory, to exploit open spaces for waste disposal, to sell public property and other such irreversible acts which harm or alter the capital of public properties.” In layman’s terms, as commentator Yossi Gurvitz noted, “Israel can keep pillaging the West Bank as if it has been annexed.”
Against Family Unification
The court’s sanction of Israel’s long-term exploitation of Palestinian natural resources in the Occupied Territories was mirrored by an equally disquieting ruling a short time later on the rights of Israel’s minority of 1.3 million Palestinians with citizenship, a fifth of the population.
In mid-January the Supreme Court finally issued its verdict on the legality of a 2003 temporary law on family unification that had in most cases barred an Israeli citizen from raising a family in Israel with a Palestinian spouse from the Occupied Territories. The controversial law was introduced as an amendment to the 1952 Citizenship Law, which determines citizenship for non-Jews; a different piece of legislation, the 1950 Law of Return, confers on all Jews around the world the right to immigrate and receive automatic Israeli citizenship.
It was the second time the court had ruled on this matter. Human rights groups, led by Adalah, the legal center for the Arab minority in Israel, had brought a petition against the law to the court in 2006. The state claimed then that the amendment was needed to close a loophole that undermined the security of the state by allowing Palestinian terrorists to carry out attacks in Israel after marrying a Palestinian citizen. The petitioners countered that the state had provided no verifiable statistical evidence of such a threat and that other measures, such as existing security checks on applicants for residency, were sufficient or could be improved to ensure that anyone likely to carry out an attack was identified at an early stage.
The real goal of the 2003 law, the human rights groups argued, was demographic, namely to protect the shrinking Jewish majority in Israel proper and the ever smaller Jewish plurality between the Mediterranean Sea and the Jordan River. It was an outgrowth, they said, of Israel’s philosophy of “unilateral separation” from the Palestinians, which had sealed off Gaza and the West Bank with walls of steel and concrete. The amendment was designed to prevent what has been termed a “right of return through the back door,” referring to Palestinians from the Occupied Territories gaining Israeli citizenship through marriage to a Palestinian citizen.
In 2006 Aharon Barak, who was about to retire as chief justice, had found himself narrowly overruled by his fellow judges, who upheld the statute. Nonetheless, even though six of the 11-member panel backed the law, Barak was still able to characterize the defeat as merely a “technical loss.” A slim majority -- again six of 11 -- had also agreed that the amendment violated Israel’s Basic Laws. The wavering judge, Edmond Levy, had sided with those upholding the law only because he believed it was temporary. The court, Levy said, should not interfere when the government was promising to replace the law with a properly formulated immigration policy.
In an e-mail to an unnamed Yale law professor, which was leaked and clearly intended to limit any damage caused by the ruling to his own and Israel’s reputation, Barak was adamant that the amendment would not survive much longer. The justice minister, Haim Ramon, Barak averred, was about to draft an immigration law that would incorporate “universal principles.” The court would not stand idly by if the 2003 amendment were renewed again: “If the parliament tries to enact again the statute without any change, there is a high probability, according to the views of the court, that the statute will be unconstitutional.”
In fact, the government failed to produce an immigration policy, as Barak might have foreseen, given the almost sacred nature of Law of Return for most Israelis. Instead, the temporary 2003 law was renewed regularly by the Knesset, and its scope was expanded by a further amendment in 2007 to include in the restrictions not only Palestinians from the Occupied Territories but also any “citizen of an enemy state.” A second petition to the court was launched by Adalah and the Association for Civil Rights in Israel (ACRI), and backed by several individual petitioners.
The new hearings occurred in a very different security climate from the earlier one. In 2006 the suicide attacks of the second intifada were still a raw wound for Israelis; by 2012 they were mostly a distant memory. Nonetheless, the state pressed on with the argument that any relaxation of the family unification policy would pose an overwhelming security threat.
In the last hearing before the court, in March 2010, Yochi Gnessin, the state’s chief lawyer, claimed that 130,000 Palestinians had sought family unification between 1994, the start of the Oslo process and the point at which most Palestinians were required to have permits to enter Israel, and 2008. Of these, 54 Palestinians who received residency permits through marriage had been involved in terror attacks. In the state’s view, this number proved that Palestinian terror organizations sought out Palestinians only after they received the right to stay in Israel, making it impossible for the security services to devise checks during the residency procedure that would assess who might be a threat.
Adalah, however, pointed out that the statistics were misleading. The category of Palestinian residents involved in terror attacks looked much less menacing when broken down. In fact, according to the state’s own figures, only seven of these 54 cases resulted in a conviction and prison sentence, and two of those people were released a short time later, suggesting that the charges were not serious. Adalah also noted that more than 20,000 Palestinian laborers from the West Bank held permits to enter Israel legally for work every day, making the state’s security argument look even more specious.
The great play made by officials of the figure of 130,000 applications for family unification, however, hinted at the subtext of the state’s case for the law. The Israeli media regularly cited this large number, with columnists worrying about the demographic implications for the Jewish state from such an influx.
Not surprisingly, this was also the thrust of arguments made by four prominent right-wing groups that were allowed by the state to join as co-respondents to the petition. Ilan Tzion, a lawyer representing Fence for Life, clarified the key issue in the case: “Our argument is not demographic [sic] but Zionist. The petitioners are claiming that Israel must not give preference to Jewish immigration over Arab. That means the Law of Return is also racist. They are making the same accusation that the United Nations did when it resolved that Israel was a racist state.” Tzion highlighted a study by Arnon Sofer, a geography professor from Haifa University, who forecast that, unless checked, the growth of Israel’s Palestinian minority would make it a majority in Israel within two generations.
In reality, the 130,000 figure was misleading, too. It included the large number of family unifications in East Jerusalem, whose residents, unlike Palestinians inside Israel, are under an illegal occupation. Families there are often separated by Israel’s aggressive bureaucratic procedures, including many children of marriages between residents of East Jerusalem and neighboring West Bank villages. After the age of 14, they have to apply, often unsuccessfully, for the right to remain with their parents. The figure also included repeat applications from the same individuals, meaning the true number of applicants was certain to be much lower.
On January 11, 2012, after nearly two years of procrastination, the Supreme Court justices issued their verdict. As in 2006, the court backed the law and again it did so by the narrowest of margins, six judges to five.
The petitioners had sought a remedy in the 1992 Basic Law on Freedom and Human Dignity, arguing that the amendment to the Citizenship Law violated the Basic Law by depriving citizens of the right to a family life on the basis of their spouse’s ethnicity. The judges agreed that families enjoyed a constitutional right to live together but were divided over whether a limitation clause in the Basic Law applied. The clause allows the parliament to legislate a law infringing on the 1992 Basic Law if it is deemed to “befit the values of the State of Israel, enacted for a proper purpose and to an extent no greater than required.”
In the minority’s view, the limitation could not be invoked because the amendment offended the principle of equality -- its effect would be felt almost exclusively by Palestinian citizens. Dorit Beinisch, who was weeks away from retiring as the court’s president, wrote in her minority opinion: “The question we faced was, what risks are we willing to take and what action are we willing to pursue to ensure our safety without compromising human rights or causing disproportionate harm.”
The majority, by contrast, argued that the limitation was applicable because the harm caused to the families refused unification was necessary and proportionate. The judges based their reasoning on the state’s security concerns. Asher Grunis, due to take over from Beinisch at the end of February, titled his opinion, “Human Rights Are Not a Prescription for National Suicide.” Elyakim Rubinstein concluded that Palestinian citizens “must pay a heavy price for greater security for all Israelis, including their own.” And Miriam Naor argued that, while Palestinian citizens of Israel had a constitutional right to a family life together, that right did not extend to it being exercised in Israel. The majority also tried to find solace in claims that the law had parallels with legislation in other countries, including European states. But again Adalah had pointed out in the earlier hearings -- and provided three expert legal opinions -- that such restrictions applied, unlike in Israel’s case, only when both parties to the family unification procedure were non-citizens. The judges’ indifference to such distinctions, and the priority they gave to security over citizens’ basic rights despite the weak case made by the state, suggested to many that the decision to uphold the law was really motivated by demographic considerations.
That was certainly how the judgment played out publicly. Dan Margalit, one of Israel’s most popular journalists, feared that marriages between Palestinians from Israel and the Occupied Territories were part of a “well-planned invasion.” Ronen Shoval, head of the right-wing youth movement Im Tirtzu, said the Supreme Court’s ruling would “prevent hundreds of thousands of Palestinians from flooding into Israel.” And Ze’ev Elkin, a Likud legislator and chairman of the ruling coalition faction in the Knesset, chastised the minority justices for wanting to open the “floodgates” to thousands of Palestinians, thereby allowing them a “right of return” through marriage.
Several of the judges also alluded to the demographic argument in their opinions, as Yoram Rabin, dean of a law school in Tel Aviv, observed in the January 15 edition of the Ha’aretz newspaper. “It is quite clear that at least some of the judges in the majority opinion ‘talked security’ while ‘thinking demographics.’” Miriam Naor had noted that the 2003 law had demographic as well as security implications and that these two factors were “indivisible.” Another judge, Eliezer Rivlin, in comparing Israel’s law to other states, had observed: “European states are toughening the conditions for immigration, for demographic reasons.” And Edmond Levy, who was with the minority, had argued that Jews must be the majority in the state, adding that his opinion “might have been different” had the state based its argument on “the composition of Israel’s population, or appropriate immigration arrangements.”
Hassan Jabareen, the director of Adalah, believed the case dealt with the “most sensitive” issue for the Supreme Court. Israel has been officially describing itself as a “Jewish and democratic” state since the mid-1980s, but this concept has rarely been unpacked. This case revealed the two principles -- Israel’s Jewishness and its democracy -- to be in sharp contradiction. Effectively, the judges had to choose which component of the state’s identity they gave a greater priority to. A majority preferred to ring-fence the state’s Jewishness even if this meant upholding a law that violated the state’s democratic pretensions.
Naor, in particular, set out the ruling’s consequences in stark fashion. In stripping the country’s Palestinians of one of the fundamental rights of citizenship, the majority decision forced them to choose between splitting up the family or moving out of Israel with their spouse to live together under Israel’s belligerent occupation. In the view of Ha’aretz columnist Gideon Levy, also writing on January 15, the ruling was another plank in a long-term policy by the state to effect the ethnic cleansing of Palestinians from their lands whenever a pretext arose. “This is about transfer. Not by the army, the settlers or the extreme right, but expulsion under the aegis of the law and with the court’s seal of approval.”
Adalah, meanwhile, observed that the court had “approved a law the likes of which does not exist in any democratic state in the world.… The ruling proves how much the situation regarding the civil rights of the Arab minority in Israel is declining into a highly dangerous and unprecedented situation.” Jabareen and Sawsan Zaher, who petitioned the court for Adalah, noted that the danger would manifest in two ways. First, by abandoning the principle of equality for Palestinians in Israel on the matter of family unification, the court had implied that non-discrimination was a matter that needed to be weighed on a case-by-case basis. The suspension of the rule of law, the two lawyers argued, “legitimizes the government and Knesset’s enactment of more laws that discriminate against Palestinian citizens of Israel.” And second, “When the issue of ‘equality’ for Palestinian citizens of Israel is seen as a political rather than a constitutional question, it is then a short step to also view human rights groups that strive to achieve the rights of dignity and equality for Palestinian citizens as political organizations, and the Supreme Court’s jurisprudence in such cases as political, and thus subject to intervention by the Knesset. However, the Knesset’s interference in the work of the Supreme Court threatens the fundamental principle of the separation of powers.”
Seen in this light, the Supreme Court had signed a death sentence for the activist role originally set out by Barak, and apparently realized in most concrete form more than a decade earlier in the torture and Kaadan cases. Zahava Gal-On, leader of the tiny left Zionist Meretz party, who had also joined the petition, warned: “The court has gotten tired of battling racism. The decision to reject my petition is the result of the campaign to weaken the Supreme Court.” She was referring to two fronts in a populist campaign waged by the Israeli right in recent years to undermine the court by suggesting its rulings, when they infringed on Knesset legislation, were undemocratic. As the political climate in Israel moved ever further rightward during the 2000s, the court had grown increasingly isolated, with the right delighting in presenting the judges’ ideological inclinations as at odds with mainstream Israeli society.
The weakness of the court was particularly evident in a number of cases where its activist decisions -- declaring Israeli laws and policies illegal -- were simply ignored by officials. The government often appeared to be flaunting its defiance, most prominently in its refusal to dismantle unauthorized settlement outposts and sections of the separation wall built on private Palestinian land in the West Bank; its awarding of priority status, and related preferential budgets, almost exclusively to Jewish communities, including settlements, rather than much poorer Palestinian communities inside Israel; its failure to assign Palestinian schools in Israel equal budgets or build hundreds of classrooms for Palestinian children in East Jerusalem; and its denial of basic services to Bedouin villages in the Negev. In one especially confrontational hearing in 2009, Beinisch accused the state of taking “the law into its own hands” and treating her rulings as “mere recommendations.”
But these high-profile clashes reinforced the right’s message, expressed succinctly by Knesset member Yariv Levin, of Likud: “The Supreme Court has been taken over by an extreme leftist minority that is trying to dictate its values to the whole society,” a development, he added, that posed “a danger to our ability to ensure our existence.”
That accusation had been given extra force by the government’s escalating campaign against human rights groups, portraying them as political organizations funded by foreign governments and, by implication, operating as agents of foreign influence. The court’s support for arguments made by human rights groups was seen as proof of its submission to a foreign -- meaning anti-Israeli -- agenda.
Aryeh Rattner, a law professor at Haifa University, noted that the court was popularly perceived to prefer “excessive involvement” when faced with controversial security, social and religious issues. A survey he conducted in 2010 showed that among Israeli Jews who did not identify as either ultra-Orthodox or settlers -- both groups tend to reject the court’s authority -- only 36 percent expressed great faith in its decisions. That proportion was down from 61 percent a decade earlier. Among settlers the figure was 20 percent, down from 46 percent in 2000.
In parallel, the right-wing parties used the issue of fundamental reform of the court as a way to intimidate it. For the past decade, the judges have been living under the cloud of a proposal from the right to replace the Supreme Court with a so-called Constitutional Court, made up of rabbis, politicians and “experts” appointed by the Knesset. In January, the influential settler leader Israel Harel, a columnist with Ha’aretz whose son is flouting a Supreme Court ruling by living in a settlement outpost called Migron, pushed again the idea of such reform, arguing that it would prevent the court’s cooptation by “extremist organizations funded by foreign governments” -- a reference to the funding received by groups like Adalah and ACRI from the European Union.
The pressure has come too from Israeli governments. The assault began in earnest under Daniel Friedmann, the justice minister from 2007 to 2009 in Ehud Olmert’s center-right government. He unsuccessfully tried to legislate several proposals to curb judicial activism, including by limiting the public’s right to petition the Supreme Court and by severely restricting the subjects on which the court could adjudicate.
As the head of an even more right-wing coalition, Binyamin Netanyahu has been equally determined to find a way both to diminish the court’s ability to interfere in the right’s legislative agenda and to alter the court’s composition to make it more ideologically sympathetic to the government. He appointed as justice minister Yaacov Neeman, an unelected right-winger who opposes an activist court and has expressed support for making halakha -- Jewish religious law -- binding in Israel. Neeman and the right rapidly advanced a bill to allow a judge who is only two years away from retirement to be appointed president of the Supreme Court. Asher Grunis, a conservative judge known to oppose the activist philosophy of Barak and Beinisch, was the intended beneficiary of the change. The law passed in January, in time to ensure that Asher would take over from Beinisch when she retires at the end of February.
But Neeman’s main target has been the Judicial Appointments Committee, which selects judges for the entire court system, including the Supreme Court. In 2011 he initiated a bill to ensure a right-wing majority on the committee that would promote judges who shared the right’s ideological positions. Neeman intensified efforts to pass the legislation as three spots on the Supreme Court, including that of Beinisch herself, were slated to fall vacant early in 2012. Procedural delays, however, meant the bill could not pass before elections to the committee had taken place late in 2011. When Neeman simply redrafted the bill to make it retroactive, thereby threatening to force new committee elections, several cabinet ministers and the attorney general protested. A nervous Netanyahu scrapped the bill.
A political analyst at Ha’aretz, Yossi Verter, suggested that Neeman’s defeat may only have been apparent. He argued that the main intention of the bill’s sponsors was longer-term. They wanted to highlight to judges lower down the judicial hierarchy that the right wing was in the ascendant and that, if they hoped to be promoted to the higher courts, they should tailor their rulings on controversial issues. “Such a message would be internalized by judges who handle cases of settler violence and law-breaking,” Verter observed on January 6.
Despite the bill’s defeat, the committee’s selection of three new candidates for the court reflected the new trend against activist judges. One, Noam Sohlberg, was a particularly controversial choice because he is an ideological settler.
Sohlberg had repeatedly shown himself to be antagonistic to arguments proposed by human rights groups. His controversial decisions had included denying 15-year old twins the right to reside in East Jerusalem, even though their parents had residency; the acquittal on manslaughter charges of a policeman who claimed he had been acting in self-defense when he shot dead a fleeing Palestinian; rejection of a slander claim against three members of the illegal far-right Kach movement who interrupted the trial of the Arab Knesset member Ahmad Tibi by calling him a “Nazi”; and upholding the right of the Interior Ministry to deny a passport to an Israeli citizen living abroad who had not returned to do military service. One of his rulings became a particular cause for embarrassment in the wake of his appointment to the Supreme Court. A TV journalist, Ilana Dayan, appealed against a large libel award Sohlberg had imposed over her investigative report accusing an Israeli army officer of executing -- or “confirming the kill,” in Israeli military parlance -- a 13-year old Palestinian girl in Gaza in 2004. In February, three Supreme Court judges unanimously overturned Sohlberg’s decision, and heavily criticized his reasoning in the case.
Aged 50, Solhberg is young by the standards of the Supreme Court and is almost certain to become its president one day. Immediately after his appointment, Yesh Gvul, a group that refuses military service in the Occupied Territories, petitioned the Supreme Court to have Sohlberg disbarred on the grounds that, as a resident of the settlement of Alon Shvut, he was breaking international law and that he would have a conflict of interest in assessing cases against the settlers. The justices rejected the petition.
The mounting atmosphere against the activists on the bench provoked Beinisch into responding in her farewell speech. She said the public mood was turning because of a “campaign to damage the court, a campaign of delegitimization.” Earlier, the Israeli media had reported a “close associate” of Beinisch warning that “a red line has been crossed [by the court’s critics]. This is a very slippery slope that could lead to Germany of the 1930s, when the majority rode roughshod over the rights of minorities.”
Decisions to Avoid Decisions
But, certainly in the case of the Citizenship Law, it seems Beinisch’s own hands in protecting the rights of the minority were not as clean as she and her supporters have professed. Admittedly, the Supreme Court president was among those on the bench who upheld the right of Palestinian citizens to live in Israel with a spouse from the Occupied Territories. But legal sources close to the case pointed out to Ha’aretz that, despite her official position, Beinisch had effectively handed the law’s supporters a majority in the court.
She had done this by delaying a decision for two years after the final hearings, a time during which Justice Ayala Procaccia, a vehement critic of the law, retired. She then chose to replace Procaccia with a right-wing religious judge, Neal Hendel, rather than a more liberal judge. Before Procaccia’s retirement in July 2011, there had been ample time for the judges to write up their verdicts. Beinisch’s decision to extend the deadline for arriving at a ruling and her decision to appoint Hendel had predetermined the outcome, the sources observed in an article Ha’aretz ran on January 13. One added: “It appears that, with the Supreme Court currently under attack, Beinisch feared raising a political and public uproar with a verdict revoking the Citizenship Law. So although she supported scrapping the law, she didn’t really want it revoked.… Beinisch doesn’t want to end her term under a cloud of confrontation with the Knesset.” Gideon Levy, meanwhile, bluntly called Beinisch’s role a “masquerade.”
In truth, in playing this grand game of deception, Beinisch was treading in the footsteps of her mentor Aharon Barak.
A November 27, 2011 Ha’aretz editorial noted that the Supreme Court was perhaps “the most significant force for the preservation of Israel’s reputation in the world.” Both Barak and Beinisch had cultivated the image of judicial activism precisely to encourage a view in the West that the court served as the uncompromising guardian of Israeli democracy. But they had usually done so while conceding as little as possible to the protection of Palestinian rights when those rights conflicted with either the core principles of Zionism or the primacy of the occupation.
This tendency had been evident in both the cases that marked the zenith of the Supreme Court’s activism at the end of the 1990s. In the torture case, the judges had appeared to ban torture -- that was how their verdict was reported around the world -- while actually sanctioning it, so long as the security services justified its use by claiming a suspect was a “ticking bomb.” Prisoner organizations noted that torture of Palestinian detainees continued unabated during the second intifada.
And in the Kaadan case -- the hardest of Barak’s long judicial career -- the court president did not, as was widely reported, take a revolutionary step to end Israel’s segregationist policies in land allocation. Rather, he urged the Katzir admissions committee to reconsider its decision in relation to the Kaadans’ application. The court did nothing substantive to enforce the rights of Palestinian citizens to equal access to land or community membership in the intervening years. And to avert any potential damage from the Kaadan ruling, the Knesset responded in 2011 by changing the law to give legal backing to such committees. Much as she had dragged the court’s feet in ruling on the Citizenship Law, Beinisch also appeared in no hurry to rule on the legality of the Admissions Committee Law. That task would be left to a Supreme Court presided over by the anti-activist Grunis.
The right-wing parties in the Knesset have now passed a batch of flagrantly anti-democratic laws that are being appealed to the Supreme Court. In January, the first one came before the judges. The Nakba Law punishes public bodies, including schools, for marking the dispossession of the Palestinians in 1948. All three justices who heard the case, including Beinisch, rejected the appeal petition, using a new judicial escape route: They could not rule on the law’s constitutionality until it was possible to see how it was being implemented -- or until the “petition was ripe for judicial discussion,” as Beinsch phrased it.
The decision to avoid making a decision -- or the decision to look activist while actually being conservative -- was the chief legacy of the Barak-Beinisch years of the Supreme Court. As the right moves to enact new laws that will further circumscribe the rights of Palestinians in Israel and the Occupied Territories, it will doubtless be more futile than ever to look to the court for succor.