In the Case for Israel, Alan Dershowitz claimed that the Israeli Supreme Court "has played a far greater role in controlling the Israeli military than any other court in history has ever played in the conduct of military affairs, including the United States." Dershowitz provided what he considered to be examples of how the Supreme Court has bent over backwards to protect human rights, even during wartime situations. But these examples were refuted easily and effectively by Norman Finkelstein in Beyond Chutzpah. Finkelstein utilized the findings of Israeli human rights organizations, press reports, and books by Israeli scholars such as The Justice of Occupation by David Kretzmer. All these sources showed that at best, members of the Israeli Supreme Court have had some good intentions. But the court rarely protects the rights of various minorities, especially Palestinians, and when it does, it is routinely ignored by the IDF military (on torture, targeted assassination, and the use of human shields) and the government (the wall near Bil'in, evicting illegal Jewish squatters, etc.) While its rhetoric of rights gets it in trouble with chauvinistic center, it is smart enough to know how far it can go with the Israeli public – which is not very far.
One of the best op-eds on the subject appeared today in Haaretz by Meirav Michaeli. It is worth reprinting in its entirety for two reasons: first, it shows the impotence of a Supreme Court who (like Prof. Dershowitz), talks big and doesn't deliver; and second, because Haaretz itself was the subject of an attack today by – whom else – the ultranationalist from Russia, Yvette (Avigdor) Lieberman. Lieberman attacked not only the usual suspects on the left, the human rights NGO's, but also the Likud politicians who still believe in the Jabotinskian vision of a liberal democracy – and who oppose setting up a parliamentary committee to investigate human rights NGOS. See here
The true defenders of human rights in Israel are not the courts but the human rights NGOs – which is why they are being persecuted by the rightwing government and Knesset. The rightwingers know that they speak the truth – or at least they have never discovered anything to the contrary. So because they can't attack the credibility of the NGOs, they make a big show of going after their foreign funding. Oops, excuse me – it is not so much the foreign funding that bothers them (after all, who funds the rightwing human rights violators?) but the fact that they are funded, together with human rights groups in places like Egypt, Saudia, and Iran, by European governments.
And that offends Israelis. They don't mind acting like Egypt, Saudia and Iran. They just don't want to be on the same list with such countries.
Since there is no good reason for going after the human rights NGOs except chauvinistic pride, bad reasons had to be invented, such as the "transparency" of their funding. Of course these groups are completely transparent about their sources of funding – much more than the rightwing groups whose private donors receive tax exemptions for donations to settlements considered by the US to be illegal. Here's another reason -- foreign government funding can influence the public discourse in ways that serve the European Union's own interests, uh, like improving Israel's human rights record? Why is it that we don't hear the same criticism when the EU funds such NGOs in Egypt or Iran? Or when the West funded human rights groups in Iraq or the former Soviet Union? Some of my readers may remember when South America governments that repressed human rights spent tons of money trying to influence the political climate for them in Washington, DC.
Israel doesn't want to outlaw the human rights NGOs (well, some Israeli MKs do, but they are a minority.) So they figure that if they harass them, they will go away. That's not going to happen; as long as the NGOs have credibility in the world, then they will be successful. If Israel passes a law banning government funding for human rights NGOs – which is the situation in Egypt – the NGOs will find legal ways to circumvent the law – which is the situation in Egypt.
In the meantime, the grand Israeli campaign of Self-Deligitimation continues. And don't think that the broken reed of the Israeli Supreme Court will be able to stop Israel's downward slide.
Israel's racism has finally reached the High Court
The court uses strong language regarding the illegality of segregation. But, in the same breath, it enables those with power to maintain it almost unhindered.
The Association for Civil Rights in Israel has threatened it will petition the High Court of Justice if the Knesset passes the bill that would subject applicants for residency in small communities to the discriminatory approval of admissions committees. The petition is not worth the trouble. The High Court will take a year or two to ponder the issue and then ask that a committee be established to look into how many communities use admissions committees, why people are rejected and whether the rejections were justified.
The committee will issue a report stating that admissions committees are indeed problematic, and the state cannot permit segregation and discrimination, except in cases when it is voluntary.
Then the High Court will rule specifically and unequivocally that discrimination and segregation are illegal unless someone desires such policies, in which case they should be allowed in accordance with the outlines of the committee report. So the policy will remain in place. While the High Court and the investigatory committee toil away, the admissions committees will flourish, large numbers of the public will be segregated from the "clean" population, allowing the latter group to dwell securely in communities that become increasingly similar in character to West Bank settlements. And "compatibility with social and cultural fabric" will become synonymous with voluntarism as a way of legitimizing the discrimination.
This scenario is not the product of my wild imagination. It is precisely what happened in the case of segregation of men and women on buses serving the ultra-Orthodox public, which ended last Thursday with an astonishing High Court ruling in which segregation and discrimination were condemned. "Have we returned to the days of Rosa Parks, the African-American woman who in 1955 brought about the end of racist segregation and discrimination in the buses of the United States?" the court asked. Strong words, indeed.
But, at the same time, the court left the back door open, and I am not simply speaking metaphorically. All the ultra-Orthodox women will continue to board the buses through the back door as they were conditioned to do, even through violence, over the course of the seven years that this scandalous segregation spread. During this period, the High Court of Justice weighed the issue. The investigative committee was appointed. It wrote its report. And the transportation minister pondered whether to accept its recommendations.
This approach has become customary with the court in recent years. It was true with the ruling on the appointment of a woman to the Turkel Committee investigating the Turkish flotilla incident. It was also true regarding the issue of fertility treatments for single women, and in the case of proper representation of Arabs in the Israel Lands Administration, etc. In its opinions, the court uses outstanding, strong, truly moving language regarding the illegality of segregation and equal rights. But, in the same breath, it enables those with power, the ones who are carrying out the oppression and discrimination, to continue to maintain it almost unhindered.
Two concurrent developments have brought the High Court to his point. First, it doesn't function in a vacuum. The expansion and penetration of discrimination, racism and segregation in Israeli politics and Israeli society reaches the court as well. It can be said that the dominant culture of the occupation, which has filtered down into various sectors in Israel for many years, is also filtering down to the High Court of Justice.
One can be more precise and say that the tools with which the High Court has for years legitimized the occupation now also serve its legitimization of serious injustices within Israel itself. Let's admit it. The approach involves verbose, enlightened condemnation regarding illegal acts and then giving them a legal seal of approval as a "necessary evil." This is what the High Court has done throughout the years of occupation. Aside from the issue of torture, which took the court 10 years to outlaw, everything has been legitimized: assassinations, home demolitions, sealing of homes, expulsion, expropriation, administrative detention, withholding of information and, of course, the separation fence.
The second development is part of the dangerous and fascist introversion of the Israeli political system in recent years, as expressed in attacks on the High Court. The fact that the court does not provide backing for the truly beautiful theories it expounds in its directives reflects how these attacks on the court have penetrated. If it is not afraid, the court is at least wary. That is the result of threats, legislative initiatives and ministerial acts of people like former justice minister Daniel Friedmann.
Our politicians should understand that through their dangerous acts, which corrupt and destroy anything good, they won't be able to rely on the court to save them and us from perdition.