Friday, February 24, 2012

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.

Activist Reputation

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. More