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The Supreme Court of the Occupation

On 29 January 2019, the president of Israel’s Supreme Court, Justice Esther Hayut, spoke at the annual international conference held by the Institute for National Security Studies. In her speech, she emphasized that “the State of Israel, since its establishment, has viewed itself as committed to the rule of law and the defense of human rights, at times of both war and peace”. Accordingly, the role of the court is only to supervise how the state fulfills this commitment, and it is not required to “choose between operational possibilities or engage in considerations that require clear professional expertise”. Nevertheless, the president clarified, “the court does not hesitate to exercise judicial review when presented with questions of legal principles that justify intervention”.

To clarify her distinction between these two types of cases, Justice Hayut cited the court’s ruling in a petition regarding the open-fire regulations the military has employed in response to the protests held by Palestinians near the fence separating Gaza from Israel since March 2018. The president noted that the judges studied the open-fire regulation and determined that “they establish criteria for the incremental use of means to deal with the dangers arising from the events", and that “these criteria directly relate to the severity of the danger and the degree of certainty that the danger will be realized”. The court further determined that, “according to the regulations, the use of potentially lethal force in a concrete instance is subject to the stringent principles of ‘necessity’ and ‘proportionality’ laid out in international law”.

Over the years, the Supreme Court has permitted nearly every kind of human rights violation that Israel has committed in the Occupied Territories.

That is the court’s answer to a “question of legal principle”. The way that these regulations are applied is, according to Justice Hayut, a matter of “operational discretion” that the court refuses to discuss: “Examining the way in which these orders are carried out touches on professional considerations which the court may not have the tools to assess – especially as the events that are the subject of the petition are ongoing”. In any case, the military carries out “an organized process of learning from mistakes while the events are still underway, following which, the troops on the ground are given further instructions and clarifications. Some incidents are referred to an independent general staff mechanism for the investigation of exceptional incidents". The president attempts to paint an idyllic, balanced picture of the Supreme Court, as though it honestly and seriously considers all aspects of matters brought before it without intervening in affairs that lie beyond its scope, but does not hesitate to intercede when suspicion arises that the law has been violated. Yet, the president only illustrates how the distinction between cases that raise “questions of legal principles” and cases that require “operational discretion” merely creates an illusion of judicial review. Over the years, the court has used this exact distinction to provide a legal stamp of approval to the ongoing dispossession, oppression, abuse and killing of Palestinians.

The ruling regarding the open-fire regulations clearly demonstrates that the distinction is meaningless. The gap between the state’s declarations and the reality on the ground could not be clearer: the petition was heard on 30 April 2018, about a month after the first protest near the Gaza fence. Up to that point, 38 Palestinians – five of them minors – had been killed due to application of these open-fire regulations, and more than 1,900 injured by live fire. By the time the ruling was handed down some three weeks later, on 24 May 2018, another 69 Palestinians had been killed, nine of them minors, and more than 3,600 injured by live fire. Since then, and until today, another 116 Palestinians had been killed, 31 of the minors, and more than 4,000 injured by life fire.

By choosing to determine the open-fire regulations are lawful while ignoring their horrifying results, the president of the Supreme Court publicly declared that the state may engage in unlawful acts and that the court will provide it a stamp of legal approval. This will hold true, however, as long as the state refrains from being truthful with the court, but rather continues to present the justices with irrelevant documents reflecting a theoretical legal analysis that is divorced from the reality on the ground.

This is also true of Justice Hayut’s statement that the military provides the troops with “further instructions and clarifications” and investigates “exceptional incidents”. Again, this determination is based on documents the state has presented the court, extensively describing the work of the “military law enforcement system”. In reality, the so-called “independent general staff mechanism for investigating exceptional incidents” and similar apparatuses have proven time and again to be no more than whitewashing techniques for protecting the persons responsible for formulating the regulations, the commanders who hand them down, and the soldiers who apply them.

This ruling, which the president chose to emphasize, is not unusual. It is just one example of many in which the Supreme Court refrained from giving effective judicial review, and failed to constrain security forces when it comes to Palestinians and the violation of their rights – even in cases of questions of legal principle. The court has proven its willingness to sanction almost any injustice or violation of the human rights of Palestinians. Over the years, it has permitted nearly every kind of human rights violation that Israel has committed in the Occupied Territories. Violations approved by the court include the punitive house demolitions, lengthy detention without trial, the ongoing blockade of the Gaza Strip and the imprisonment of some two million people inside it, the expulsion of entire communities from their homes, and the construction of the Separation Barrier on Palestinian territory, resulting in extensive land grab.

Above all, the Supreme Court chooses to ignore the broader context: The Palestinian petitioners are part of a population that completely lacks representation, whose lives have been governed by a harsh military regime for over half a century, whose political rights are denied, and who can’t participate in the most basic decisions concerning their lives. According to both common sense and international law, these circumstances should drive the court to provide increased protection to the very population that needs it so much. Instead, the Supreme Court chooses to defend the perpetrators.

What, then, is the actual function of Israel’s Supreme Court sitting as the High Court of Justice, concerning the Occupied Territories? President Hayut provided the answer in her speech cited above, by detailing the benefits of the Court's ruling for the state. In her view, the court’s judicial review “reflects the state’s commitment to the rule of law” and therefore, regardless of the rulings it delivers, “one of the important side effects is its contribution to Israel’s international legitimacy”. The Supreme Court’s involvement also helps the state “reinforce its ‘complementarity’ argument when dealing with criminal proceedings abroad, in the international arena or in other countries”.

That is the heart of the matter: Israel’s Supreme Court believes that one of its roles is to protect the image of Israel and defend its representatives when they violate the law. It faithfully carries out this mission by adopting unreasonable, at times absurd, interpretations of the law that are dismissed by most jurists around the world.

While the justices of the Supreme Court do not write the laws, make policy, or implement it, they have the authority – and the duty – to determine whether a policy brought before them is lawful, and to prohibit its application when the policy unjustifiably harms the human rights of Palestinians in the Occupied Territories and breach the principles of international law designed to protect them. In refusing to do so, Israeli’s highest legal authority not only condones these human rights violations – but also the occupation itself.