The Mixed Human Rights Record of Israel's Judiciary

 

By David K. Shipler 

                The right-wing Israeli government’s plan to eviscerate the powers of the country’s courts has generated massive demonstrations in the streets, worries by foreign investors, and boycotts of military service by hundreds of reservists in elite special forces and air force units. But the “independent judiciary” the protesters are defending does not have a sterling record on civil rights, especially those of Palestinian Arabs.

                The Supreme Court has refused to rule against the government’s inflammatory strategy of settling Jews in the occupied West Bank, a practice barred by the Fourth Geneva Convention. It has generally permitted the army to demolish the family homes of Arabs accused of terrorism, a form of collective punishment that the Geneva Convention also forbids. (Demolition is never used against Jews charged with terrorism against Arabs.) Inside Israel, the court has upheld a form of segregation by allowing rural villages and kibbutzim to reject would-be residents for “incompatibility with the social-cultural fabric of the town.”

The justices have only tinkered around the edges of the government’s tough practices. They have occasionally ordered a small Jewish settlement dismantled for taking Palestinian land. For similar reasons, they have required minor changes in the route of Israel’s security wall built on the border of the West Bank. They have ruled against demolishing a house where the accused did not actually live, and where a family tried to prevent the terrorist act. But the justices have typically avoided sweeping judgments on major policies affecting Palestinians’ rights, deferring to security concerns and gradually reducing the influence of international law.

                “Over the years,” says B’Tselem, an Israeli civil liberties organization, “the Supreme Court has permitted nearly every kind of human rights violation that Israel has committed in the Occupied Territories.”

Why, then, is the extreme political right so intent on emasculating the judiciary? First, the Supreme Court has gone the other way in a few important areas. It struck down a law exempting the state from liability for damaging civilian property during security operations in the West Bank. It limited the length of time that “infiltrators,” namely illegal immigrants from Africa, could be held in a desert prison camp that was designed as a deterrent to further arrivals.

And, most politically charged, the court overturned, as discriminatory, the exemption of ultra-Orthodox men from the military service that all other Israeli men and women must perform. (Although, with ultra-Orthodox parties giving governing coalitions their parliamentary majorities, governments have repeatedly obtained the court’s permission to extend the exemption.)

                Second, if Israel annexes the West Bank as many on the political right desire, the military’s authority there would presumably end, along with the military courts that have tried Palestinians on both security and criminal charges since the territory was captured in the 1967 war. It is conceivable that the Supreme Court would grant Palestinian residents access to the same rights in the same criminal justice system as Israelis. That would not be welcomed by the virulent anti-Arab members of the current government.

                Last but certainly not least, Prime Minister Benjamin Netanyahu would like to stay out of prison if his endless trial on corruption charges, which began in May 2020, ever ends with a conviction. An independent judicial system is such an inconvenience to authoritarian-minded leaders, as former president Donald Trump might soon discover.   

Nevertheless, Israel’s Supreme Court seems less of a threat to some of the right-wing agenda than the protests in its favor might suggest. It has grown more restrained and more conservative in recent decades, especially since the retirement in 2006 of its president, Aharon Barak, a jurist revered both in Israel and abroad for his capacity to apply human rights to the exigencies of security interests.

In 2011, for example, the court essentially reversed a 1983 judgment by Barak against ten Israeli-owned quarries that were extracting building materials from the occupied West Bank. Citing the Geneva Convention and the Hague Regulations, Barak’s court had ruled, “An area held under belligerent occupation is not an open field for economic exploitation.” He reaffirmed the judgment in 2004. But in 2011, Supreme Court President Dorit Beinisch found that the long period of occupation “requires the laws be conformed to meet reality on the ground,” which she said included “the right to utilize natural resources in a reasonable manner.”

  In retirement, former Justice Barak recently called the Netanyahu government’s judicial overhaul plan “a string of poison pills” that would be “the beginning of the end of the Third House,” meaning the third historical period of Jewish sovereignty after the eras of the ancient First and Second Temples.

Barak’s warning was airily dismissed by Justice Minister Yariv Levin, who declared that the former Supreme Court president “does not understand the essence of democracy,” endangered, in Levin’s view, because “all power rests with the judges, and they decide what’s proportionate and reasonable. That’s not democratic.”

But it is the Justice Minister who does not understand the essence of democracy, which relies on the separation of powers, a cardinal principle recognized by the hundreds of thousands of Israelis who have taken to the streets. Israel’s Supreme Court is the only institution standing in the way of unfettered political diktat. With a parliamentary system whose majority always controls the executive branch, no other check or balance exists.

The country has no constitution; a failed constitutional assembly after Israel’s creation in 1948 led to the enactment by the Knesset, the parliament, of what’s called Basic Law, a dozen principles on “human dignity and liberty” derived from the Israeli Declaration of Independence. The Basic Law figures in the Supreme Court’s rulings on the “constitutionality” of statutes passed by the Knesset. Yet the court has been cautious, overturning only 22 laws since the power of judicial review was established in 1992, an annual rate lower than the United States, the United Kingdom, and Canada.

It appears that even as the authority to annul laws has been rarely used, its existence has restrained the executive and legislative branches in the past. Not so much today, as the government has shifted to the right, and “elected officials have become less likely to accept legal advice to amend or withdraw bills that are constitutionally problematic,” according to Yuval Shany and Guy Lurie of the Israel Democracy Institute.

Ironically, given all the protests, the Supreme Court has suffered a decline in public trust, from 80 percent in 2000 to 49 percent in 2010 to 41 percent in 2021. “While the words ‘there are judges in Jerusalem’ used to put an end to public debate, today they provoke it,” wrote Yedidia Z. Stern, former dean of the law faculty at Bar-Ilan University, back in 2010. Dissatisfaction reigns on both the right and the left of the political and religious spectrums.

Yet for the sake of democracy, large numbers of Israelis seem to realize, the center has to hold. If Netanyahu and his justice minister looked around the world or into history, they would see how every dictatorship subverts and expropriates its judiciary. In the Soviet Union, pro-democracy dissidents used to speak of “telephone justice,” delivered by judges who first called Communist Party officials for instructions. In today’s Russia, supine courts mostly do the Kremlin’s bidding. Hungary’s semi-autocrat Victor Orban has emasculated the courts, which are also lapdogs of the regimes in Iran, China, and other authoritarian systems.

                Netanyahu and his extremist, anti-Arab cabinet are ramming through legislation that would require an 80 percent majority on the Supreme Court to invalidate a law, and would empower the Knesset to annul that ruling or any other with just a one-vote majority of legislators. Justices would be appointed mainly by governing politicians in a restructured Judicial Selection Committee, instead of the one currently dominated by nonpartisan judges and lawyers.

                That would set the stage for a kind of elected autocracy, placed in office by the voters but unchecked by the rule of law—or of any law other than the one enacted at the whim of the legislature, the executive, and their hand-picked judges, all three branches flowing into a single stream of authority.

                The sad question is whether Palestinians would notice much difference. Maybe not, since they haven’t had much success anyway, through Israel’s independent courts, fighting discriminatory laws and regulations.

World War II According to Tucker Carlson

 

By David K. Shipler 

                A reliably uninformed source has revealed that House Speaker Kevin McCarthy’s staffers, desperately bored without any significant national problems they’re allowed to address, have collected 41,000 hours of newsreel footage from 1939-45 and turned it over to Fox News host Tucker Carlson.

                Reels of film are unreliably reported to be stacked in his reception area, in his office, and around his venerable desk. One pile, which swayed dangerously in a puff of Carlson’s bloviations, finally toppled over onto his favorite saying, etched into a plaque carved from a Mar a-Lago palm tree:

                “What you see with your own eyes is a rumor.”

                 According to inside misinformation, Our Boy Tucker is preparing a show of the most telling, iconoclastic clips hidden for decades. They will definitively rebut the assertions by elitist “historians” that certain “events” and “attacks” and “battles” occurred.

                Tucker’s show is to begin with a scene from Pearl Harbor at sunrise on Dec. 7, 1941. Contrary to the fabrication about a Japanese attack, the camera pans across the beautiful harbor, where U.S. Navy ships lie quietly in their berths, sailors lounging on deck or going about their peacetime chores of swabbing, painting, and wielding nothing more dangerous than an occasional screwdriver.

                An advance copy of Carlson’s narration for this bit has been smuggled out of the Fox digital files, which as we know are full of revealing texts and e-mails. Tucker is itching to declare: “The socialist President Franklin Delano Roosevelt’s approval rating had tanked, so he mobilized his propaganda resources to invent a Japanese attack, just to boost his poll numbers. And it worked.”

                Film of London during the so-called “blitz” shows a pub-filled city of merry-makers. How come no V-1 “buzz bombs” are heard? Tucker plans to ask. How come there are no explosions? How come there’s nothing but the clinking sound of beer mugs and happy chatter? Carlson will tell us why, and you probably already know the answer.

                A particularly affecting scene will show a ship sailing placidly along in an open ocean. “Worried about U-boats?” Tucker will sneer. “Please. Look closely. We’ll freeze the frame here. See the passengers out on deck enjoying the sun and the sea? It’s a pleasure cruise, folks, right there in the middle of 1943. Gimme a break.”

Then, a startling new clip of the so-called D-Day landing is sure to galvanize audiences. It is a beach scene, all right, but instead of helmeted soldiers in camouflage and belts of grenades, we will see a bunch of obviously American guys with their obviously French girlfriends playing volleyball on the sand and frolicking in the surf.

This momentous report will surely bring relief to all of us who have worried about the danger of a new war, World War Three. We didn’t even have World War Two, so relax.

Many reels have yet to be examined, according to our misinformed source, so we will just have to wait and see what long-suppressed scenes of benign German concentration camps the great Tucker Carlson will discover.   

                 This is satire. It’s all made up, a disclosure made necessary by the absurdity of current reality, which prevents lots of people from telling the difference between truth and fiction.

Israel's Forever War

                                                         By David K. Shipler 

                Forty-three years ago this month, the United States voted for a United Nations Security Council resolution condemning Jewish settlements in Arab territories captured by Israel in the 1967 war, and demanding that they be dismantled. After an immediate outcry by Israel and its American supporters, President Jimmy Carter backtracked, saying an affirmative vote had been authorized only if all references to Jerusalem were deleted, which they were not. He blamed miscommunication within his administration.

The Israeli cabinet didn’t buy the story, saying the vote “gives rise to deep resentment.” Vice President Walter Mondale was booed at a meeting of American Jewish leaders. And it didn’t help President Carter in his re-election bid that November, although his landslide loss to Ronald Reagan had numerous other causes, including the American diplomats being held hostage in Iran.

                Decades later, it’s clear that Carter was right about settlements being “obstacles to peace,” in the official phase that was used through several administrations. But the U.S. never took concrete action to stop their expansion. It pressed occasionally for construction freezes but never dared to use economic or military aid as leverage. President Trump even supported the settlements; his ambassador, David Friedman, endorsed their annexation by Israel.

The years of negligence have allowed a dangerous sore to fester. At the time of that U.N. vote in 1980, there were about 11,000 Israeli settlers in the West Bank; today there are some 450,000. Then, a small and marginal assortment of zealous Jewish vigilantes harassed and attacked Palestinians; today, a widening crusade of armed Israeli thugs holds sway in many areas, as witnessed last week when hundreds of settlers, in retaliation for the murder of two young Israeli men, rampaged through four Palestinian villages, burning cars and houses, vandalizing homes, and terrorizing children—children, who will never forget.

The arsenal of memory is reinforced by the cycle of terrorism and revenge. Its weaponry is ready for deployment by both sides at any hint of compromise. So, as long as clashes on the ground occur between Israeli settlers and Palestinians, no high-level peace agreement can succeed, in the unlikely event that one should be negotiated. Furious hatreds have long been generated at the level of everyday life.

That doesn’t mean that Arabs and Jews have universally hostile relations on the West Bank. Palestinians work on construction crews building settlements, in Israeli-owned businesses, inside Israel itself if they have permission to commute through the border wall that now cuts off the West Bank. Some Arab-Jewish friendships exist.

Nor are the militant settlers the only cause of conflict, obviously. Palestinian leaders have a long history of missing opportunities to move toward reconciliation. Years ago, Israeli proposals were spurned or ignored. The Israeli left’s call of “land for peace” evaporated after Israel unilaterally withdrew its troops from Gaza in 2005 and—instead of peace—got rocket fire as Hamas, the radical Palestinian movement, took power.

And yet, settlements on the West Bank have played a poisonous role in the unending war. Combined with stepped-up Israeli army raids against terrorist cells, settler violence has embittered ordinary Palestinians, with growing numbers promoting armed resistance, polls show. Even though the West Bank is far from a functioning democracy, no Palestinian leader can negotiate fruitfully without the population’s support. It is too easy to strike the match that will light the tinder of outrage.

In a perfect world, anybody of any religion, race, or nationality would be free to live peacefully anywhere, of course, unmolested by those of a different identity. But the Holy Land is far from perfect. It is a place where land is idolized, dogmatism is prized, and history is corrupted. The settlements, then, become instruments of politics and conquest.

 Israelis who move to the West Bank generally go for the subsidized housing, the semi-rural setting, or the religio-nationalist belief that God gave the Jews the deed to that land. But some bent on violence are drawn there by the conflict itself. They have usually been allowed to act against Palestinians with virtual impunity.  

Mixing biblical certainty with anti-Arab bigotry has made some settlements incubators of extremism. It has not been countered by any Israeli government, and won’t be by the current coalition, which includes ideological settlers in the cabinet. As a result, Israeli settlers have become both targets of terrorism and perpetrators of vigilantism.

This isn’t brand new. In 1983, settlers planted bombs in cars owned by the Arab mayors of Nablus and Ramallah; one lost both legs, the other, part of his left foot. A third mayor escaped after the Israeli army got a tip and warned him.

Later that year, a yeshiva student was stabbed to death in the West Bank city of Hebron, sparking a rampage by settlers who trashed and burned stalls in the Arab market. Then six settlers, including three who had been involved in the mayors’ bombing, dressed as Arabs and sprayed automatic gunfire into groups of students at the Islamic College in Hebron, killing three. Three of those settlers were sentenced to life in prison but were released only seven years later.

In 1994, a settler named Baruch Goldstein stormed into Hebron’s Tomb of the Patriarchs and killed 29 Muslim worshipers; survivors beat him to death. He was made a heroic martyr by the radical settler subculture and an inspiration to Prime Minister Yitzhak’s assassin, Yigal Amir, a frequent visitor to settlements. Though not a resident himself, Amir identified with the hard-core settlers’ movement.

Until recently, Goldstein’s picture hung on the wall of Israel’s new Public Security Minister, Itamar Ben-Gvir, an extremist settler who had distributed a flyer of Rabin in an SS uniform and declared, after stealing an ornament from Rabin’s car, “We got to his car, and we’ll get to him too.”

Aside from the misdeeds of settlers themselves, their communities have multiplied and fragmented West Bank territory into disjointed enclaves impossible to forge into contiguous areas under Palestinian rule. By explicit design over decades, Israel has essentially slammed the door on a two-state solution.

That was the goal, the former general Ariel Sharon told me back in 1979, when he was Agriculture Minister facilitating new settlements by building roads, pipelines, and electrical grids. “Security is not only guns and aircraft and tanks,” he said then, years before he became Defense Minister and later Prime Minister. “If people live in a place, they have the motivation to defend themselves, and the nation has the motivation to defend them. As long as these settlements are built, a Palestinian state will not be established in this area.”

Like the term “refugee camp,” “settlement” conveys a misleading sense of impermanence. Both have become perpetual. Refugee camps are now tightly-packed slums where generations have lived. Many Jewish settlements began as tents or mobile homes on Arab villages’ common agricultural land but are now established semi-suburbs of town houses and apartments, schools and synagogues—“facts on the ground,” Sharon used to call them.

Each side has radicalized the other. Whatever harmony some once imagined being possible between the two peoples in two neighboring states is being soured into discord every day. Nobody is trying any more to end the forever war.