Looking back almost twenty years later, one could argue that the first and second strategies – to delay violations against individual Palestinian victims and to build a record of violations – are still relevant, albeit the first in limited circumstances. However, the third strategy of relying on the Court to adopt moral and legal principles that promote justice and equity needs to be reexamined today.
Instead of providing protection and relief for Palestinians, over the years the Court has played an active role in undermining Palestinian human rights. The Court created legal precedents that caused individual and collective hardship and suffering. Specifically, the Court issued and refrained from issuing, decisions that sanctioned almost the entire list of documented human rights violations in the West Bank: settlements, mass confiscations and misappropriation of public and private property, torture, collective punishment, unjustified destruction of civilian property, mass transfers and deportations, annexation of occupied territory, and refusal of the rights of prisoners and administrative detainees. Some of these human rights violations amount to grave breaches of international humanitarian law, i.e. war crimes.
After decades of litigation, we can no longer be naive about the Israeli Supreme Court: We are dealing with judges mainly drawn from former government and/or Israeli institutional positions with no legal (and at times moral) incentive to challenge the word of the Israeli security services and military. The Court’s record demonstrates a prejudice toward Israeli state interests over the interests of Palestinian civilians living under Israel’s occupation whose protection is the Court’s responsibility.
If one collected the cases of all West Bank Palestinian petitioners in the Israeli Supreme Court over the years, one would find hundreds if not thousands of decisions and examples of judicial complicity in major human rights violations. Just from my modest caseload, I could point to instances where Israeli justices legalized unlawful house demolitions and prolonged administrative detentions; or sanctioned war crimes by refusing to intervene in torture cases, to stop the forced mass transfer of the Jahalin Bedouin to the Jerusalem garbage dump, and to prevent collective punishment in the cases of the destruction of homes of spouses and children of suicide bombers. If we included the Israeli military courts, the District and other lower courts, administrative tribunals and the judges of interrogation sessions, the number of cases of judicial complicity in human rights violations would easily be in the thousands.
Palestinians and lawyers may be able to create incentives to compel justices to rule more closely with international legal principles by compiling a database of judicial complicity in human rights violations. By drawing from two cases I litigated, the following two sections shed light on the ethical factors in the decision-making of Israeli Supreme Court justices and how we might influence them.
Image Counts: The 1999 Torture Case
In September 1999 and after five years of litigation, Justice Aharon Barak and eight other justices unanimously decided to outlaw certain methods of torture and cruel treatment used against Palestinians by Israeli interrogators. The decision came after dozens of petitions were filed to stop the torture of Palestinians in which the Supreme Court refrained to intervene.
Though the prohibition on torture is absolute and carries no legal justification under international law, the Court’s decision to ban certain torture methods was considered historic and made the headlines of the New York Times. Although the decision was bold within the Israeli context, the Court did not completely outlaw all torture and cruel and unusual punishment: It maintained the pretext of the ‘ticking bomb’ scenario (a situation in which the detainee allegedly has information that could prevent an imminent attack) and refrained from setting the legal standard according to the Convention on Torture. Furthermore, the Court suggested that the government pass legislation to explicitly legalize some methods and provide a legal defense for Israeli interrogators to preempt prosecution for practicing torture. Less than two years later, the Second Intifada broke out and almost all Palestinian detainees were treated according to the exceptional ‘ticking bomb’ scenario. Methods such as painful positioning and tight shackling were reinstated by the Israeli security services.
More than empathy for the pain and suffering of thousands of Palestinian detainees or receiving weekly appeals from human rights organizations describing torture cases, it was public international exposure of Court-sanctioned torture that played one of the most important roles in compelling the Court to make its ‘historic’ 1999 ruling. A few months before the ruling (after sitting on the Court’s docket for five years), students protested Justice Barak’s sanctioning torture of Palestinian detainees at his honorary degree ceremony at the University of Michigan. How much longer could the President of the Israeli Court, Justice Barak who is an annual guest lecturer at Yale University Law School, keep his dark secret away from his fellow Yale scholars? The cat was out of the bag and Israeli justices did not want their names associated with a decision approving torture. Their status and legitimacy depended heavily on the approval of their colleagues abroad. In short, naming and shaming began to have an effect. Barak admitted this in his 1999 decision:
Our apprehension that this decision will hamper the ability to properly deal with terrorists and terrorism, disturbs us. We are, however, judges. Our brethren require us to act according to the law. This is equally the standard that we set ourselves. When we sit to judge, we are being judged.
In this case, Barak and the Court appear to have been persuaded by the threat to their image beyond the legal and moral implications. As such, the ruling did not outlaw all forms of torture, but rather limited the crime just enough to elicit positive reactions within Jewish-Israeli society and in the West.
A Rare Conscience? The Punitive House Demolition Case
For comparison, it is interesting to look at the language used in a rare instance of an Israeli Supreme Court justice who refused to be complicit in violating basic principles of justice and causing unjustifiable suffering to Palestinian civilians. It occurred in a dissenting opinion.
In 1997, the Israeli military wanted to demolish the house of the widow of a suicide bomber from Tzurif village near Hebron. The widow, Maysun Mohammed Ghanimat, was 24 years old and had four young children. Her husband had not intended to commit suicide, but the bomb detonated prematurely in a Tel Aviv café and he was killed along with three Israeli women. Following the bombing, the Israeli military arrested her family members. The widow suffered a nervous breakdown and was hospitalized leaving the traumatized children without their mother. The Israeli military claimed that the intended demolition was not punitive (in order to avoid being accused of collective punishment), but was meant to deter future bombers. As it had done for decades and in hundreds of cases, the Israeli Supreme Court of Justice led by the Court’s president Justice Aharon Barak accepted this argument while knowing that the military’s theory of deterrence was questionable. The Court threw out the petition and the house was destroyed. In a feeble justification, Barak wrote:
We are aware that the demolition will leave petitioner 1 and her children without the roof over their heads, but this is not the aim of the demolition. It is not a punitive measure. It aims, rather, to deter. Its outcome does pose difficulties for the family, but the respondent believes that this measure is essential in order to prevent further attacks on innocent people. He maintains that family pressure does discourage terrorists.
There is no absolute assurance that this measure will be effective. But considering the very few measures left to the state to defend itself against these “human bombs,” we should not despise this one. For these reasons I would reject the petition.3
Justice Michel Cheshin, the third judge on the panel refused to be complicit in this act of collective punishment. He dissented and called the bluff of the Court’s president and the military that this was not just an act of deterrence. He forcefully wrote:
On many occasions I have pointed out the difficulties inherent in exercising the powers granted by Regulation 119 of the Defense Regulations. … In all these judgments I rooted myself in a basic legal principle, and from it I will not be swayed. This is a basic principle which our people have always recognized and reiterated: every man must pay for his own crimes. … Petitioner 1 is the wife of the suicide murderer, and she is the mother of four small children. The woman and her children reside in that same apartment where the murderer lived, but nobody claims that they were accomplices in his plot to murder innocent souls. Likewise nobody claims that they knew about the intended attack. If we demolish the bomber’s apartment we will simultaneously destroy the home of this woman and her children. We will thereby punish this woman and her children even though they have done no wrong. We do not do such things here. ... [W]hat I say now I have never said before. I deliberated long and hard until I reached this conclusion. This is the Torah that I learned from my teachers, and this is the doctrine of law that I have in my hands. I can rule no other way.4
Justice Cheshin unveiled the security argument and exposed the inherent illegality and human consequences arising from the demolition. Had other Israeli Court Justices stayed true to principles of justice and adopted Cheshin’s conduct, the history of the Court on Palestinian human rights could have shifted profoundly. Unfortunately, Cheshin’s dissent remained just that – a lone dissent without precedential value.
Holding Israeli Justices Accountable
Though there is a growing movement for holding Israeli government officials who commit violations against Palestinians accountable, little focus is devoted to the role of the justices of the Israeli Supreme Court despite the fact that their role has been critical to legalizing Israeli violations.
It was clear to me as a human rights lawyer that if the Supreme Court objected to the planned action of the Israeli military, security services or civil administration (be it demolition, arrest, torture, etc.), the Israeli forces would mostly likely refrain from implementing the specific violation. In a sense, we human rights lawyers helped to advance the role and power of these justices when we petitioned them to decide on these violations. Our petitions gave them legitimacy to be the ultimate decision makers over Palestinian human rights under an illegal occupation.
Ultimately, justices hold the greatest responsibility for violations facilitated by the Supreme Court. The onus is unavoidable in light of the fact that human rights lawyers repeatedly alerted the Court to Israel’s obligations to human rights and international humanitarian law. For decades, the justices did not take these rules and norms seriously and instead were characterized by an unabashed impunity. Most justices disregarded the role of international humanitarian and human rights law concerning military occupations. At a conference in 2009, Aharon Barak, the former president of the Israeli Supreme Court, justified his disregard for human rights law in his decision due to his lack of understanding of international law. He said:
The question before me was what was the scope of the power of the military authorities [in the territories]. To the extent that human rights were able to restrict their power, this was an outcome, a derivative, from the concentration of the power of the state…In my new, better understanding of the role of international law of human rights and humanitarian international law, slowly, slowly, the vantage point started to shift from talking about the power of the military authorities and more and more to the question of the human and civil rights of the people living there.5
In the same forum, Barak recognized that the human rights situation in the West Bank was grave and referred to the West Bank as “occupied territories” rather than “Judea and Samaria” – the political euphemism he consistently used during the years of his court decisions to avoid acknowledging the applicability of the laws of occupation. The Israeli Haartez newspaper reacted swiftly:
[W]e…wonder why Barak only made his statements now. As someone who led Israel's Supreme Court for 11 years, he had countless opportunities to sound a warning and act to improve human rights and democracy in Israel and the occupied territories. The court under Barak did not do enough in this area. Barak's judicial activism stopped a number of times when the matter at issue was preserving human rights in the territories, and for a number of years the court declined to take a stance on such important issues.
Barak’s disingenuous assertion that he just didn’t know enough about international law and his exceptional shift in language is inadequate. There is still a long way to go to hold Israeli Supreme Court justices responsible for violations of Palestinian human rights.
Take for example, one of the last opinions of the former President of the Supreme Court, Dorit Beinish, in a 2009 case challenging the legality of licensing Israeli quarries in Area C from where 90 percent of quarried materials are exported to Israel. In this case, Beinish reinterpreted International Humanitarian Law restrictions of an occupying power’s ability to exploit the natural resources of the occupied territory and developed a novel approach to accommodate and help legalize Israeli quarrying. Beinish ruled that in prolonged occupations the privileges and the “governmental role” of the occupying power may expand to include exploitation of the natural resources of the occupied territory for its own economic interests. This interpretation of International Humanitarian Law deviated so heavily from the internationally accepted understandings of occupation law that it provoked seven prominent Israeli legal academics to issue a damning critique calling the decision “irreconcilable with the accepted interpretation of the temporal dimension of the laws of occupation” and “inconsistent with the principle of the trusteeship of the occupier toward the protected population.”6
Accountability is not as elusive as it may seem. As a consequence of universal jurisdiction applied to Israeli government officials, the complicity of the Israeli Court has also begun to interest third states. Israeli justices are forced to be more mindful of facilitating transgressions of international law.
Next Steps for Palestinian Human Rights Lawyers
One response to the disparity between Israeli rule and international legal norms is to completely suspend litigation in the Israeli courts. This kind of action would address questions such as: Should a court prioritizing Israeli state interests be deciding on the legality of actions by its own military against a foreign population that it controls? Should human rights lawyers and Palestinian petitioners legitimize the authority of the Israeli Supreme Court to decide on major issues affecting Palestinian self-determination i.e. annexation of East Jerusalem, refugee property, mass confiscation of Palestinian private and public land, settlement expansion and construction of the Wall in the West Bank?
Lawyers and Palestinians must adopt a clear tactical vision of alternative legal actions in order to conclude upon a boycott of the Israeli courts. As lawyers, we are obligated to find relief and remedy for our clients wherever we can and, perhaps in a few individual cases, litigation in Israeli courts may still actually achieve that. In those cases where Palestinians decide to continue to litigate in the Israeli courts, human rights lawyers must add to their tasks holding Israel’s judiciary to account for its complicity.Naming and shaming must be part and parcel of every Palestinian human rights lawyer’s terms of reference. However, in both cases – boycott or continuation of litigation – judicial accountability (in the past and present) for serious human rights violations must be included in the strategy. One way to begin such a process is to set up a database to document the role of various courts’ decision-making in human rights violations.
Conceptualizing the Israeli Judicial Accountability Database
Justices’ participation in human rights violations concern individual Palestinians’ rights, but in some case the courts are complicit in serious international crimes (i.e. persecution based on national, religious and/or ethnic grounds; forcible transfer and state-sponsored discrimination). An example of this would be the Supreme Court’s role in the settlement project: the Court’s intentional and consistent evasion of ruling directly on the legality of the settlements (knowing this would effectively allow the settlements enterprise to continue) together with its prolonged history of legalizing almost every aspect of the enterprise (confiscations, planning, demolitions). Nahum Barnea who is one of Israel’s most prominent news commentators in Israel’s main newspaper vividly described this role last year:
The original sin was that of the [Supreme] Court. In the second decade following the Six-Day War, when the settlements went from being a marginal whim to the State of Israel’s major policy in the territories, the [Supreme] Court was asked to decide its position on a series of petitions. The judges throughout the years decided to ignore international law, which forbids settling occupied territories, and instead focus on the matter of ownership… This choice was convenient for all parties: it presented our court to the world as a champion of human rights. Its doors are open even to the occupied Palestinians. It allowed the Israeli Left to win now and then in its struggle against the settlements. And most importantly, it allowed the Israeli governments to settle the territories like there is no tomorrow...7
A database for judicial accountability could analyze Supreme Court justices’ roles in court decisions affecting Palestinian human rights. The individual and collective collusion of justices could be systematically weighed against standards of international law. This information could support future accountability litigation, especially on the international level like an International Court of Justice petition on settlements and apartheid, and universal jurisdiction cases against the justices. A database could also be used as an advocacy tool for human rights.
Publicizing the database locally and internationally – to other states’ Supreme Court judges and national bar associations or academic and international law institutions that regularly invite Israeli justices to lectures, conferences or author publications – would increase the impact. Israeli Supreme Court justices may begin to rethink their past precedents and begin ruling in line with international humanitarian and human rights law knowing that they are being monitored and tracked for their role in potential international law violations against Palestinians. ‘Naming and shaming’ could also serve as a basis to demand these judges’ exclusion from international forums that provide their needed legitimacy.
The database should not be limited to human rights cases in the occupied territories – the West Bank and the Gaza Strip. That would only tell part of the story. In parallel, the database should include cases affecting Palestinian citizens of Israel and refugees impacted by Israeli law bringing in other Israeli institutions and potential violators of human rights: the State Attorneys, Ministries and Ministers, the Israeli Military and Civil Administration officials.Such a resource would become very useful in future transitional justice processes such as in reparations schemes, truth and reconciliation commissions and in planning for the return of Palestinian refugees.
In the discussion whether to continue using the Israeli Supreme Court to advance Palestinian rights we must add another level of scrutiny: holding judges accountable for their past and present decisions. A database is a way to start this process. The information it produces can go a long way toward encouraging Israeli justices to implement international law and put an end to sanctioning and legalizing violations of Palestinian rights. It will also be useful for future transitional justice processes.
The Israeli Supreme Court sits as the High Court of Justice when it reviews acts of the government and/or administrative institutions. The procedures differ for High Court cases, however it is the same body as the Supreme Court with the same justices.
HCJ 302/72, Sheikh Suleiman Hussein Oudah Abu Hilu et al. v. Government of Israel et al.
Maysun Mohammed Ghanimat v. Central Commander, Bagatz 2006/97,English translation in Judgments of the
Israel Supreme Court: Fighting Terrorism within the Law, p. 32 at http://www.jewishvirtuallibrary.org/jsource/Politics/terrorirm_law.pdf.
Ibid, English translation at p. 33-34.
“Aharon Barak: W. Bank is Occupied Territory”, Dan Izenberg, The Jerusalem Post, 25 June 2009.
Para. 3 of Expert Legal Opinion submitted in support of DANGATZ 316/12. An English Translation of the legal opinion can be found at www.yesh-din.org.
“Don’t Evict Migron”, Nahum Barnea, Yedioth Ahronoth, 27 Aug 2012, http://www.ynetnews.com/articles/0,7340,L-4273648,00.html.