Thursday, January 31, 2008

The Israeli High Court Strikes Again

Not surprisingly, the Israeli High Court rejected the petitions of the human rights groups Gisha and Adalah to compel the state to restore power and fuel supplies to the Gaza Strip. Read about it here.

The High Court is, of course, the Court of the Occupier, and has always reserved the right to rule in favor of the claims of the Occupier. As the Israeli High Court, it rules in what it considers to be the interest of the State, and not the interest of justice or human rights. That is to be expected, of course, and I see nothing wrong with that. That is why there are transnational courts like the International Criminal Court in the Hague, courts which transcend, or should transcend, national interests.

Still, it is instructive to look at the Court's reasoning to illustrate what the Justice of Occupation sounds like. Thus:

"The Gaza Strip is controled by a murderous terror organization, which works tirelessly to harm Israel and its citizens, and breaks every possible rule of international justice in its violent actions against men, women and children," Justice Beinisch wrote.

This sort of emotional rhetoric, characteristic of Beinisch (in her fights with Daniel Friedman), is demeaning of the High Court. Even allowing that Hamas is a terrorist organization, not a single human rights organization or international law body has claimed that it "breaks every possible rule of international justice," even when it has been criticized, as has been Israel, for targeting civilians. Beinisch doesn't mention Hamas offers' of cease-fires and hudnas, or its unilateral cease-firings when targeted assassinations continue, or for that matter, the siege of Gaza which began, unprovoked by any Kassam rockets, after democratic elections.

Beinisch wrote that in war, civilians were the first to suffer.

However in the actions against Israel, civilians were the intended target.The High Court of Justice said Israel was not required to transfer unlimited supplies of goods and fuel, but only to fulfill its obligations by international law.

They said that this is the case, because Israel has not had effective control of the Gaza Strip since the disengagement.

First of all, in Israel's siege against Gaza, civilians are the intended target and understandably so. By targeting civilians, Israel wishes to advance its security goals of protecting its citizens. The thinking is that if life becomes miserable for the Gazans, they will rise up against Hamas. So Israel's targets civilians in order to further its political and security goals.

That is no different from what Hamas does, as any non-partisan will agree.

Beinisch ought to go back to reading her Just War theory, especially the theory of double effect. Her logic justifies the actions of the suicide bomber who expresses regret for the civilians he blows up, but who blames the actions of the enemy for what he is doing. His intention is not to spread terror, he says, but to liberate his people and to inflict a blow on the Occupier. The argument is a bad one, whether it is used by Hamas or by Israel, as the human rights organizations tell us.

Israel possesses no less "effective" control over Gaza than it did before its troop redeployment. Hence it is still the occupying power and responsible for the well-being of the civilian population, under the fourth Geneva Convention.

Why doesn't the High Court's ruling surprise me? As Hebrew U Law Professor David Kretzmer pointed out in his ground-breaking study, The Justice of Occupation, the High Court sees its role as defending the security of the State of Israel, even when that violates human rights and international human rights law. True, it reins in the goverment occasionally, but only when it thinks that it knows better than the government how to meet Israel's security needs.


Anonymous said...

You're funny. Why do you say "I see nothing wrong with that," when I know from your posts that you care very deeply? From the Magnes Zionist prespective isn't how the "the interest of the state" blinds us to the demands of justice and human rights for all people the crux of the whole problem?

And are you saying that you think the judges are aware that the "interest of the State" as the court sees it is contrary to justice and human rights and it favors the "interest of the state" anyway? Then the judges would be moral monsters. I think it is more likely that they have convinced themselves that justice and human rights are on their side somehow. The great rabbi Dogbert says that our brains are so big so that we can convince ourselves that we are doing the right thing when we are not.

Jerry Haber said...

After I wrote "I see nothing wrong with that", I had a queasy feeling, and I am glad you called my bluff. Let me explain.

What I meant to say was, "I understand the position of people like Aharon Barak, who do not feel that the purpose of the High Court is to adjudicate questions of human rights, but rather to interpret matters of Israeli law, consonant with Israeli basic laws like kevod ha-adam ve-heruto. I understand that the High Court is not there to do the job of an International Criminal Court. It is important to emphasize how much the Israeli High Court is at the service of the Israeli state, or if you like, the conception of justice in accordance with security.

As you know, the Barak court was accused of being too activist. Since Barak was more liberal than some, I was happy that it was as activist as it was. But I am aware that on security issues it deferred to the state, and that is the drawback of relying on the High Court. Another day will come when the "activism" of the High Court will be an illiberal one.

Jerry Haber said...

One more thing. I believe that the judges try to balance what they consider to be Israel's legitimate security concerns with human rights. Since I don't agree with their conception of those concerns, I think they are too quick to agree with the government. Still, as I tried to make clear from my reading of Beinisch, she simply repeated the stock lines that Israel always trots out to justify its curtailment of human rights.