"There are judges in Jerusalem!"

A week ago the extreme right paper "Makor Rishon" published  an article praising the efforts of Justice Minister Ya'akov Neeman to introduce significant changes in composition and orientation of the Supreme Court. In illustration it was accompanied by a cartoon depicting Supreme Court President Dorit Beinish screaming in rage and frustration when the minister moves his pawns in sophisticated gambits on the chessboard.

But not all moves are successful. This week the Israeli Bar Association has elected its representatives to the Judicial Selection Committee, which would choose new judges for the Supreme Court,  and they were not at all to the liking of the Minister and his adherents. Not that they are deterred – the new ploy is to pass in the Knesset a bill which would overturn the Bar Association's choice and force the lawyers to elect new representatives, more to the government's liking... Is this a game of chess? It looks more like a  boxing bout without rules.

Yaacov Katz, a leader of the settlers in the Occupied Territories and a Knesset Member for the National Union Party, initiated a bill which would make Justice Asher Grunis - who rarely interferes with the acts of the government and the army – into the next President of the Supreme Court. "This is a bill to return power to the people and wrest control of the Court away from a small miserable Tel Aviv elite group" said Katz.  "All opinion polls confirm that confidence in the Supreme Court is meager. Only the Left and the Arabs express any trust in this court, the Jewish People regard it with contempt."

Coincidentally or not, the same newspaper which published Katz's opinions also featured another item about the same Supreme Court.  The twins Mohamed and Mahmoud Atun live in Wadi Hummus which is part of Sur Baher, itself part of East Jerusalem. In East Jerusalem, Palestinians may only live if granted a residence permit  by the Interior Ministry in the Government of Israel. Such a status the Israeli authorities refused to grant to the young Atun twins, though their father is an undisputed Permanent Resident of East Jerusalem. Since 2008 Ahmad Atun had been conducting as struggle on the status of his sons - but the Supreme Court heard his appeal and decided that the twins would not get the residency permit.

Indeed, Supreme Court President Dorit Beinish did rule that it is unacceptable to split a family in that way, the father having the right of residence at his home and his children denied the same - but she remained in the minority. Judge Grunis, the government's designated President of the Court, ruled together with his colleague Edmund Levy that such splitting of a family was acceptable "in order not to create a precedent".

"Now my sons are imprisoned in the house. Any police officer can at any moment arrest them. They can't go out to study or work or get married" said the father, whose last hope was dashed.

If such was the ruling of a "left-leaning court", what would have been the outcome in a court tending to the right?

***

The Supreme Court of the State of Israel is part of the government structure. It has shared interests and a shared system of values with the government, the Knesset, the Israeli Defense Forces and the Security Services,  Shabak and Mossad. It rules according to the laws made by the Knesset (though having wide powers to interpret them) and acts on the presumption that the government's acts and policies are legitimate (unless clearly proven otherwise). Its judges certainly do not want to make a move which would be – or would be perceived as being – harmful to National Security or undermining the foundations of the Zionist enterprise.

But the Supreme Court justices are also part of the international legal establishment, along  with the Supreme Court judges of the United States,  and those of the European Court of Human Rights in Strasbourg and of the International Court in the Hague and the jurists and professors in prestigious Faculties of Law throughout America and Europe. They would certainly not want to take a step which would be (or could be construed as) a violation of the norms of equality and democratic conduct formulated in Western democracies over the past fifty years.

So what do the judges do? They look here and they look there and compromise in this direction and in that. Immediately after the war in 1967 Meir Shamgar, then President of the Supreme Court, decided to hear and rule on the petitions of Palestinians from the newly conquered territories and pass under judicial review the actions of the army. But the court also decided that such petitions cannot be based on the Fourth Geneva Convention, and that the State of Israel is not obligated to do adhere to the letter of that Convention, but merely to its  "Humanitarian Principles".

For example, the Court ruled that the State of Israel is not obligated to adhere to the article in the Geneva Convention which prohibits an Occupying Power from moving and settling its own citizens in the Occupied Territory – since ruling otherwise would have rendered illegal any Israeli settlement whatsoever, and put the court in complete opposition to the basic government policy. In March 1979, when a petition was filed against the expropriation of Palestinian land for the establishment of the settlement of Beit El, north of Ramallah, the General in Charge of the IDF Central Command provided an affidavit to the court stating that "civilian settlement is part of Israel's system of defense" and therefore the expropriation was required for security purposes. The court did not want to dispute with the professional opinion of a general and accepted the state's position. Then Prime Minister Menachem Begin declared jubilantly on the Knesset podium: "There are judges in Jerusalem – settlements are legal!" and it was the left which was incensed at the court.

But half a year later, when a petition was filed against the expropriation of land near Nablus for the Elon Moreh settlement, the retired generals Matti Peled, and Chaim Bar-Lev filed affidavits stating their professional opinions which were contrary to that of the incumbent officers, stating that settlements do not in any way serve National Security but to the contrary impose on it a heavy burden. And this time the judges took up the dissenting opinion and determined that  expropriating private land in order to build settlements was unacceptable and that the land in question must be returned immediately to its owners. This time it was the adherents of peace who proclaimed "There are judges in Jerusalem", and briefly the settlers and their supporters panicked. But soon the state found methods of declaring vast tracts of land to be "State Lands", making creative use of various obscure laws leftover from the Ottoman Empire, and even if they had been for generations in possession of Palestinian farmers such State Lands were made available for the erection of Israeli settlements, all perfectly legal according to the Supreme Court...

And later arose the question of the Separation Wall (or Fence or Barrier or various other names), and was under review at the International Court in The Hague. Whereupon that court held that the Fourth Geneva Convention in its entirety does apply to the State of Israel, and that Israel should not build a separation wall inside the Occupied Territory, blocking Palestinians villagers from having access to their land.

Should Israel want to build a border fence to defend its borders, the right place to erect it is on the Green Line, the 1967 border which remains the internationally recognized border of Israel. And then the Supreme Court judges of Israel came up with their own different verdict on the same issue. They determined that building a Separation Wall inside the West Bank was in itself acceptable, but the injury caused to Palestinians must be "proportional". And therefore the court held that in some places the fence had to be moved and (some of) their lands be returned to the Palestinians. And right-wingers were extremely incensed at the leftist court which helps the Arabs and damages National Security. For their part, the military authorities were very slow in implementing the ruling and came to the brink of contempt of court, but in the end the Wall was indeed moved in several locations, which made a lot of difference to the specific farmers whose land it was.

And on another field – an Israeli middle class couple named Kaadan wanted to  purchase a home in a newly established town – and were turned down because they happened to be Arabs. And when they appealed to the Supreme Court, the  state authorities answered to the court that it was true, an exclusively Jewish community was being created in which there was no room for Arabs, and there was nothing unusual about that – establishing Jewish-only communities was and had always been a cornerstone of Zionism. At the time, Supreme Court President Aharon Barak stated "This is the most difficult decision of my life",  but after years of deliberation he and his colleagues decided to accept the petition and require the state authorities to allow the Kaadans to buy a house, like every other Israeli citizen irrespective of religion, race or ethnicity. It took the couple several more years and bureaucratic struggles until they actually got into their home. In the meantime the authorities found a new method – establish "Selection Committees" which are empowered to reject those who want to buy a home in a community because "they don't fit the social fabric", and this method was given the sanction of a Knesset law passed a few months ago. In the Supreme Court, appeals on its legality are still pending…


And there also came up the question of the interrogation methods used by the Shabak Security Services. For years, when the lawyers of Palestinian detainees appealed and asserted that their clients were being tortured, the court refused to hear the petitions on various technical grounds. When Human Rights organizations lodged an overall petition about such methods of torture ("moderate physical pressure"), the deliberations dragged on for years without issue, and the Shabak made strong hints and suggestions that should the Judges intervene  in the interrogation methods, they would be held responsible for any upsurge in acts of terrorism which would follow. At that time, Supreme Court President Aharon Barak used to stay some time each year at the prestigious Law School of Yale University in the In the United States. Some of the Yale students were going to hold a protest against "the Supreme Judge who allows torture." With great effort, the heads of the Faculty prevevailed upon the students not to hold the demonstration which would have shamed their Guest of Honor, but shortly after the return of Barak to the Supreme Court in Jerusalem he accepted the petition of the Human Rights groups and banned various methods of "moderate physical pressure" which were held to be contrary to International Law. (The Shabak later invented new methods, a bit different than those which the Court forbade...)

 And then, there came back tot the Supreme Court the issue of settlements  and the land on which they were established.  Peace and Human Rights organizations collected and brought evidence that despite the great abundance of "State Lands" available to them, the settlers allowed themselves to seize the private land of Palestinians, without any kind of expropriation or legal procedure - robbery and theft, pure and simple. And the court ruled that these settlements must be evacuated, and particularly determined that the settlement of Migron – which has become a kind of symbol and rallying point for the settlement movement - had to be evacuated no later than March 2012. And the settlers and their supporters cried out very loudly, and threatened civil disobedience and large scale violence and a multitude of random attacks on Arab property which they call "price tags".  And Foreign Minister Lieberman threatened to leave the cabinet and shake its stability, should the Supreme Court ruling on Migron be carried out. It might be all this which created for the Netanyahu Government a feeling of emergency and urgency to change, ahead  of March 2012, the composition and orientation of the Supreme Court...

***

So - who are you, the Supreme Court of the State of Israel? The last remaining defender and bastion of democracy and Human Rights, or just the "Good Cop" in a role-playing game which the State of Israel is playing? Or a bit of this and a bit of that, and not quite either? The Supreme Court is constantly looking in two directions, making all the time opposing considerations, and reaching all kinds of compromises – sometimes, rotten compromises. For many years, also the Government of Israel wanted to have such a Court, and found it quite useful. "There are judges in Jerusalem!" can only be said with conviction when these judges have some international credibility in the world.


But a different time has come upon us, when different tunes are sung. It is a different kind of a Right Wing – one which feels no shame or embarrassment, which no longer feels a need to put on a mask. A government appointing as its chief diplomat an Avigdor Lieberman, deliberately making him the face which Israel presents to the world. And now they want the Supreme Court to toe the line, too.Let the judges look in one direction only - at the government and the Knesset and the Army and the Security Services – and definitely turn their backs on colleagues in America and Europe and forget all that crap called democracy and Human Rights. To achieve this, ingenious tricks are devised and procedures are twisted out of shape and laws are changed in a twinkling and every obstacle crushed through with a heavy hand and everything done openly and brazenly. No more hypocrisy.

Is it possible? Certainly, it's possible. Gone are the days when you could say about anything in Israel "this is unconceivable." All bets are off, everything is open, everything is conceivable. Even a Supreme Court in the shape and image  of the current majority in the Knesset. Why not? Also in North Korea there is  an institution called The Supreme Court. Also in Syria.

The bastards have changed the rules

In a public opinion poll conducted in Israel several years ago, about sixty percent of the respondents supported the idea of Israel ​​joining the European Union. So far, this has not happened, but Israelis are very pleased that our soccer and basketball teams participate in European championships. Also the Eurovision Song Contest gets at least as much public attention in Israel as in countries located in the continent of Europe itself.

But how many Israelis would like to accept the authority of the European Court of Human Rights based in Strasbourg? 

Herzl would have been very surprised to hear that a time will come when "Colonialism" would be a dirty word and various Zionists will write articles and books trying to prove there is no connection and no similarity whatsoever between Zionism and Colonialism. 

"The Jewish Colonial Trust" was the name of the financial institution established by the Zionist movement at its beginning (now Bank Leumi LeIsrael, Israeli National Bank). Theodor Herzl devoted much time and effort to meetings with the British Colonial Secretary, and attempts to persuade him that Zionism could be a loyal ally for the worldwide British Empire.

At the time when Zionism started, the enlightened and civilized countries of the time considered it quite acceptable and self-evident that Europeans had the right to seize control of the rest of the world and establish settlements there – with or without the consent of the "natives".

When the State of Israel was created and its establishment caused hundreds of thousands of Palestinians to become refugees, it was very shortly after millions of people in Europe were uprooted and driven from their homes and from countries where they had lived for hundreds of years. Acts which today would be called "ethnic cleansing" and which then at that time were undertaken with official and express authority from the resolutions of the war victors, gathered at the Potsdam Conference of 1945. Mainly uprooted and expelled from their homes in Eastern Europe were ethnic Germans (in 1945, it was common to consider what happened to Germans they had brought upon themselves);  but quite a few Poles and Ukrainians and members of several other peoples were also uprooted from their homes by force ...

And on the year in which the State of Israel was born, and still for some years after that, racial segregation the discrimination of Blacks were set out in the  laws of the United States of America, and a significant part of the American political system thought that this was exactly the way things should go on.  And in those years most people in France considered  Algeria to be an integral part of France which would remain such forever, and a million and half French settlers lived in Algeria and were in political and economic control, and Arabs in French Algeria did not have civil rights, and only radicals and extremists in France thought there was anything wrong about this. And not coincidentally, when these Algerian Arabs rebelled embarked on a war of independence, France regarded the young State of Israel as its natural ally.

So, for many years it was not so hard to be members of the club of Western Democracies. The admission requirements were not so rigid, and the norms of behavior of other members in the club were not all that different. But in the sixties things began to change definitely and the ways started to part in opposite directions. Algeria won its independence after a harsh and cruel war, and the colonies of France and Britain and other empires gained independence, and the very idea of ​​colonialism and settlement in the territory of somebody else became unacceptable and illegitimate. And in the Southern United States Martin Luther King and his Black (and White) fellows waged a hard struggle and ultimately won, and the laws of segregation between Whites and Blacks were abolished and discrimination became illegal and illegitimate, and the way was paved towards the entering of a Black President to the White House. The norm was set that all people living under the rule of a government must share in the elections from which this government issues.

And just at this time, in the Sixties when students went out on furious demonstrations in Europe and America and opposed the Vietnam War and the authoritarian government of France, the State of Israel went out on a war lasting six days and captured a territory which it keeps to this day. And the state worshiped its victorious army and victory albums were published and the Chief Rabbi of the victorious armed forces went into the newly occupied  territories in search of holy sites where he blew the ram's horn. And in the immediate aftermath of war and conquest, the settlement movement started in the Land of Our Forefathers, with the generous support of Labor Party ministers who did not understand that they were digging a grave for their party (and not just for it). And the people who understood the magnitude of the danger, and who went out at night to write graffiti against the just-started occupation on the walls of Tel Aviv,  were a minority and their voice was not heard.

And ever since, the disparity has widened and the State of Israel has become the black sheep in this club of Western democracies, to which she so much wants to belong. And increasingly, outsiders could see a huge armored Israeli Goliath confronting the little Palestinian David, stone in  hand.

There had been an interlude when Yitzhak Rabin – a man who spent most of his life in war but retained enough flexibility to change his way of thinking when already beyond the age of seventy – tried to change and reverse course. Seeing Israel isolating itself and embarking on the path of eternal war with its neighbors in the region and loss of its friends in the world, Rabin went on to shake hands with Yasser Arafat and enter into an agreement that would have led to the establishment of the State of Palestine no later than May 1999.

But the assassin's three shots in the square intervened, and among all Prime Ministers who served after the murder Yitzhak Rabin did not have a successor.

Rabin's legacy is still alive among the youths who came to the square on Saturday a week ago, to honor the memory of a man who was murdered when they were babies or not yet born and to swear allegiance to the cause he took up in the last years of his life and for which he died. But Israel as a state has turned its back on Rabin and his legacy - moving high-speed towards the abyss.

Taming the Europeans

In a month or so, after the American diplomatic steamroller blocks recognition of the State of Palestine at the UN Security Council, the debate will move to the UN General Assembly, where the American have no veto power. Towards this vote, Israel's Prime Minister Binyamin Netanyahu made an intensive effort to secure the support of Western democracies and gain their vote against the Palestinian request. Especially he sought the support of the European countries, making repeated visits and showering their leaders with compliments. Again and again Netanyahu declared that if the enlightened democracies stand by him, support for the Palestinians "would not have a moral force".

And just at this time Knesset Member Ofir Akunis, a close associate of Netanyahu, submitted a bill which gained the cabinet's support and which takes a quite different attitude to these same countries. A bill whose proclaimed aim is "to prohibit Israeli NGOs from accepting the donations of governments and international bodies such as the European Union", and thus "prevent the interference of foreign states in Israeli politics" and their support for (God forbid!) Human Rights organizations.

Speaking about "moral force"...

Catch-23

In 2005 the State of Israel carried out a large political and military operation called "Disengagement from Gaza", following which the state formally informed the Supreme Court that it no longer controls Gaza and is not responsible for what is happening there.

When asked why, then, does the State of Israel continue to keep its warships cruising off the coast of Gaza and block the way of anyone trying to get in or out, the state answered that it had imposed a naval blockade on the Gaza Strip. Indeed, there is such a possibility in International Law, to impose a blockade on the shores of another country. But does Israel really consider the shores of Gaza as the shores of another country?

Last Saturday, two boats sailed toward the coast of Gaza, one from Canada and the other from Ireland. At sea, in international waters, they were boarded and taken over by the renowned Naval Commandos of the State of Israel. "This time it passed without violence," read a brief news story published the next day's in Israel's biggest newspaper "Yediot Ahronot". Which is not entirely accurate. The peace sailors, from Canada and Australia and Ireland and other countries, indeed did not resort to any kind of violence. On the other hand, the renowned commandos did use electric shockers  and pointed loaded guns at the heads of the activists. True, on this occasion they did not pull the trigger, and everybody on board survived and got alive into the detention cells.

"You're charged with violating the law on Entry Into Israel. Sign right here: 'I admit that I entered Israel illegally' " said the Israeli Police interrogators. "Absolutely not," answered the activists. "We did not want to enter Israel, we had absolutely no intention to do so. We wanted to reach Gaza, and you yourselves stated that Gaza is not Israel. We have entered Israel only because your soldiers took us off a boat in international waters and brought us into Israeli territory by force and against our will". 

"If you don’t sign a confession that you have entered Israel illegally, we keep you here" concluded the policeman...

 

November Second - and Fourth

Last week there passed quietly the date of November 2. It is exactly 94 years since that day in 1917 when Arthur James Balfour, Foreign Minister of Britain, signed a document known in Zionist history as "The Balfour Declaration". There were times when this date was noted with ceremonies and enthusiastic celebrations among Jews living in this country and by angry protests of their Arab neighbors - but since then, quite a few other things had happened, adding various other dates to be marked with joy or rage, and the Balfour Declaration was pushed into the margins. Perhaps this opportunity should be taken to briefly remind of it again.

A short document of great historical significance. "His Majesty's Government views with favour the establishment in Palestine of a national home for the Jewish people" – to which, however, was added the proviso "It being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine". In the original English was written " Palestine". Hebrew translations almost always render it as "Eretz Israel", a difference which is not only linguistic.

The British deliberately did not give a detailed explanation what exactly a "national home" is, leaving it to "constructive ambiguity". But there was no doubt that with the establishment of the State of Israel in 1948, that National Home did in fact become a reality (at which point, by the way, His Majesty's Government no longer viewed it with any great favour). And what about the other half? Which Zionist - even the most ardent – would dare to assert that the civil and religious rights of non-Jewish communities in Palestine have not been infringed in the least during the years which passed since 1917?

***

How to build and maintain in this country a Jewish national home without prejudice to the rights of the Arabs? How to protect the rights of the Arabs without damage to the Jewish national home? How to eat your cake and have it, get into the water and stay dry? The British tried to maintain an impossible balance for thirty years of conflict and bloodshed, and finally gave up and went away. After that nobody even tried seriously to strike a balance, and there were many, many conflicts and wars and much suffering, and the conventional wisdom was that of a zero-sum game, what's good for us is bad for them and vice versa, and better be ready to kill them before they kill us.

Then, in a moment of hope, it seemed that the rules have changed. A ceremony was held on the lawn of the White House and an Israeli leader shook hands with a Palestinian  leader and a document was signed which stated that "The Government of the State of Israel and the Palestine Liberation Organization, representing the Palestinian people, agree that it is time to put an end to decades of confrontation and conflict, recognize their mutual legitimate and political rights, strive to live in peaceful coexistence and mutual dignity and security, and achieve a just, lasting and comprehensive peace settlement and historic reconciliation.

The Prime Minister which Israel had at that time signed this document and took it seriously and tried to realize it in practice. He intended to reach a definite peace agreement  with the Palestinians by the date stipulated in the agreement signed - no later than the month of May, 1999.

But he did not live to see that day. On the night of  November 4, 1995, seventy-eight years and two days after the Balfour Declaration, three shots reverberated in a city square where a peace rally had just ended. The first (and so far only) Israeli Prime Minister who seriously wanted and intended to achieve peace with our Palestinians neighbors paid for it with his life. And May 1999 passed without an agreement and without a Palestinian state. The occupation continued, as a matter of fact became worse; the settlements expanded further and further, as did violent attacks and assaults and  bombings and bloodshed and more bloodshed on both sides.

We have come back to the zero-sum game, to fighting and fighting without hope; to killing and dying and wandering in the dark of a tunnel with no glimmer of light ahead. Ninety-four years after the Balfour Declaration and sixteen years after the assassination of Yitzhak Rabin, the government of Israel government decided to punish the Palestinians for their audacity in asking UNESCO for recognition of an independent statehood – punish them by building a further 2,000 housing units reserved for Jewish settlers only, on  parcels of land which the State of Israel proclaimed to be "State Land " and thus expropriated them from the  Palestinians. ("It being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine" - but who remembers that?).

This week Dr. Yuval Steinitz, the renowned philosopher of Haifa University who serves as Finance Minister in the Government of Israel, paid an especially hearty and cordial visit to the West Bank settlement of Kiryat Arba (yes, the same settlement in which pilgrimages are taking place to the grave of Baruch Goldstein at the heart of Rabbi Meir Kahane Park) and noted how glad and happy he was to increase the government budgets allocated to the settlements in general and to Kiryat Arba in particular. And Dr. Steinitz also noted during his visit to  Kiryat Arba that "it would be strange if the State of Israel  continues to transfer funds to UNESCO".

Much less strange that Steinitz' colleague FM Avigdor Lieberman, the leader of an extreme right racist party - sent his ambassador at the UN to meet Marine Le-Pen, leader of France's extreme right racist party (perhaps to convey his sincere wishes for her to become Foreign Minister, too?)

Next Saturday night, November 12th, at 7:30 pm, will gather at the Rabin Square in Tel Aviv the people who remember Yitzhak Rabin, and what he came to symbolize; what he sacrificed his life for. People who think that Israel can still change direction, get on the path of peace and follow it.