[After a year of fierce battles over the judicial coup, Israel’s
Supreme Court seems totally subservient to the state’s policies
since Oct. 7. Whats changed?]
[[link removed]]

WHY ISRAEL’S TOP COURT IS GREENLIGHTING A CIVIL RIGHTS CRACKDOWN  
[[link removed]]


 

Eyal Lurie-Pardes
December 12, 2023
972 Magazine
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ After a year of fierce battles over the judicial coup, Israel’s
Supreme Court seems totally subservient to the state’s policies
since Oct. 7. What's changed? _

Israeli Supreme Court President Esther Hayut and Supreme Court
Justices at a court hearing on petitions against the government's
"Reasonableness Bill," at the Supreme Court in Jerusalem, September
12, 2023., Yonatan Sindel/Flash90

 

In times of war, constitutional courts frequently fail to defend civil
liberties. There is no shortage of examples of this from around the
world, often stemming from an impulse to avoid conflict with the
national security establishment in order to avoid losing public
support. In the wake of the Hamas-led attacks
[[link removed]] on
October 7 and Israel’s ongoing bombardment
[[link removed]] of
the Gaza Strip, the Israeli Supreme Court has been no exception. 

Since last year’s Israeli election, the Supreme Court has been the
subject of a fierce battle between an emboldened far-right government
[[link removed]] that seeks to
strip it of its powers, and a mass protest movement
[[link removed]] that has
sought to defend it and uphold its role as a protector of human and
civil rights. Over the past two months, however, the Court has
appeared totally subservient to the government, the war cabinet, and
the police, repeatedly refusing to block severe violations of
citizens’ rights. In fact, several rulings from recent weeks exhibit
how the national trauma of October 7 has influenced justices’
judicial decision making. 

Many cases before the Court are centered on a “balancing formula”:
whether a government action, even if in some way justified for a
“compelling reason,” disproportionately violates the protected
constitutional right at stake. But beyond merely describing the
national security reasoning presented by the government, the Court’s
recent rulings have included biblically inspired depictions of the
atrocities of October 7 to justify, in some part, giving more weight
to national security considerations over protecting civil rights. 

For example, court rulings have repeatedly
[[link removed]] quoted
[[link removed]] a
paragraph by Justice Noam Sohlberg stating: “In these terrible days,
the State of Israel is waging a severe campaign against those seeking
to destroy it from the Hamas organization that controls the Gaza
Strip, which sent its murderers, along with ‘_erev rav_,’ a
bloodthirsty mob, on the morning of October 7 … to destroy, kill,
and annihilate young boys and old men, toddlers and women.”  

This creates an almost impossible standard for petitioners to meet. As
a result, the Court has given a constitutional greenlight to
oppressive new measures such as not providing information on
Palestinian detainees [[link removed]] to civil
rights groups, even when such measures contradict the Court’s
precedent [[link removed]]. Most strikingly,
the Court has allowed the government to effectively ban
pro-Palestinian speech, denying a petition
[[link removed]] submitted
by several Arab-Palestinian organizations against a decision by the
Israeli police to forbid demonstrations in Umm Al-Fahm and Sakhnin
against the war. 

Palestinians protest in front of Ofer Prison in solidarity with the
hunger-striking administrative detainee Ahmad Zahran, west of
Ramallah, occupied West Bank, December 19, 2019. Ahmad
Al-Bazz/Activestills

The Court’s precedents
[[link removed]] on
the permissibility of demonstrations are generally protective of
freedom of expression and allow the police to prohibit them only if
there is “a high probability of actual severe and serious damage to
public safety or public order.” But in this case, the Court accepted
the police’s argument that prior protests in times of national
unrest have disrupted public order and that the police are preoccupied
with other work and so lack the capacity to allow a protest to go
forward.  

There are, however, numerous reasons to doubt the sincerity of the
police’s statements. While a protest calling for a ceasefire was
approved only after the Association for Civil Rights in
Israel petitioned the Supreme Court
[[link removed]],
protests on other matters led by Jewish Israelis since the start of
the war have generally been granted police approval
[[link removed]]. In other words, the only
protests the police claim to not have the capacity for are those that
oppose the war. 

Moreover, the police’s argument that a protest in the center of a
Palestinian city against the war in Gaza would disrupt the public
order doesn’t hold water. The police often use justifications of
this sort if a demonstration is likely to provoke a hostile response
from the local community to a degree that would jeopardize the
police’s ability to maintain the peace. Nonetheless, even when such
an antagonistic response is expected — as in the case of the
Jerusalem Pride Parade, for example — the courts have ruled that the
police are obligated
[[link removed]] to allow
the demonstration to take place. 

The case of Palestinian demonstrations for a ceasefire inside
Palestinian cities is even more clear-cut: because a ceasefire
has overwhelming support
[[link removed]] among Palestinian citizens,
it is unlikely that a protest in a Palestinian town would receive
significant pushback from the local community.

Palestinian citizens of Israel and left-wing Israeli activists at a
protest against Israeli attacks on the Gaza Strip, in Haifa, May 11,
2023. (Shir Torem/Flash90)

But perhaps the easiest way to understand the police’s repression of
anti-war protests is by listening to their own statements. Police
Commissioner Kobi Shabtai has expressed open hostility
[[link removed]] towards
pro-Palestinian protesters, saying
[[link removed]]:
“Anyone who wants to identify with Gaza is welcome — I’ll put
them on buses that will send them there.” 

A flawed safeguard

Israel’s Supreme Court is an essential institutional check
[[link removed]] in the
Israeli political system. Because of the government’s de
facto control over the Knesset, the Supreme Court is the only body
empowered to block anti-democratic measures. Many of Israel’s
existing civil rights protections have been granted and protected by
the Court, including rulings that protect Palestinian citizens and
Palestinians in the occupied territories — such as mandating
affirmative action
[[link removed]] and striking
down certain torture practices
[[link removed]] used by the Shin Bet.  

Historically, however, these victories are largely outweighed by the
Court’s failures to protect Palestinians’ civil rights, especially
those living in the West Bank. For instance, the Court has allowed
the establishment of settlements
[[link removed]],
in violation of international law; the forcible transfer
[[link removed]] of
Palestinians in Masafer Yatta, south of Hebron; and expansive use
of administrative detention
[[link removed]], which
allows Israeli forces to indefinitely detain Palestinians
[[link removed]] without trial,
formal charges, or allegations that a felony was ever committed. 

The Court has also failed to protect Palestinian citizens of Israel:
although it ruled
[[link removed]] that
Palestinian citizens have the same rights as Jewish citizens, it has
frequently allowed the government to discriminate against them
in allocating national resources
[[link removed]],
while banning family reunification
[[link removed]] and enabling
segregation in schools and housing
[[link removed]]. 

In short, while the Court has granted some important protections to
Palestinians, it has also failed in colossal ways. As the prominent
Israeli civil rights lawyer Michael Sfard put it
[[link removed]] in
a talk at Columbia Law School, “The Israeli High Court is an
occupier’s court, and it does not provide justice, but from time to
time, it does provide a remedy.” 

Anti-judicial overhaul activists protest outside the Supreme Court in
Jerusalem, September 11, 2023. (Noam Revkin Fenton/FLASH90)

While those on the left have been critical of the Supreme Court’s
role in legitimizing oppressive measures, the right-wing mainstream
has been even more vocal
[[link removed]] in
its criticism. The far-right Israeli government spent most of this
year prior to the war trying to pass legislation to overhaul the
judiciary [[link removed]], aiming to strip the
Court of some of its authority to strike down legislation or
administrative actions. 

Right-wing policymakers view the Supreme Court as
a hyper-interventionist institution
[[link removed]] that
prevents the conservative majority from implementing its agenda on
issues such as expanding settlements in the West Bank; exempting
ultra-Orthodox Jews from mandatory military service; and limiting the
rights of Palestinians, women, and LGBTQ+ people. 

As part of the judicial overhaul, Prime Minister Benjamin Netanyahu
and Justice Minister Yariv Levin wish to change the composition of the
Judicial Selection Committee to enable the creation of a conservative
majority among Supreme Court justices. Until such a change is
made, Levin has said [[link removed]], he will
refuse to appoint a permanent Chief Justice and to fill the two
vacancies on the Court. This is the first time in its history that the
Supreme Court is operating without a permanent Chief Justice. 

Fast-forward back to now, and the justices are surely aware that
striking down government acts and legislation during the war could be
used by right-wing politicians to further justify the judicial
overhaul. The Supreme Court is thus left in a vulnerable position at
the precise moment that it is hearing important petitions on
politically complex issues. If the Court rules to uphold civil
liberties over national security concerns, its opinions are likely to
be politically unpopular. 

For example, the Court will hear a case against the
near-total shutdown of the Qalandia checkpoint
[[link removed]] since October 7, which has
created a de facto blockade on Kafr Aqab, a Palestinian neighborhood
in East Jerusalem that was excluded from the city and its services
after the construction of the separation barrier. A decision mandating
the loosening of limitations on Palestinians’ freedom of movement
— a constitutionally-protected right — against the positions of
national security officials would almost certainly be highly
unpopular, fueling right-wing talking points about the need for the
judicial overhaul. To prevent such a scenario, the Court is likely to
be more inclined than ever to rule in favor of the government.   

By keeping the threat of the judicial overhaul alive, the government
is restricting the Supreme Court’s latitude in protecting people’s
rights. At a time of war, when judicial intervention is more necessary
than ever to prevent the government’s campaign against civil rights,
the Israeli Supreme Court seems incapable of piercing through the veil
of national trauma. Unfortunately, in retrospect, the Court will
likely be seen as yet another constitutional court that failed to
defend fundamental rights in times of war.

_EYAL LURIE-PARDES is a visiting fellow in the Program on Palestine
and Palestinian-Israeli Affairs at the Middle East Institute after
being awarded with the University of Pennsylvania Carey Law School LLM
Post-Graduate Fellowship. Prior to joining MEI, Eyal worked with the
Association for Civil Rights in Israel, the Zulat Institute for
Equality and Human Rights, and as a parliamentary adviser in the
Knesset._

_+972 MAGAZINE is an independent, nonprofit media organization of
Israeli and Palestinian journalists that relies on the support of
readers like you._

_Through our groundbreaking reporting on the ground and critical
analysis, we spotlight the people and communities working to oppose
occupation and apartheid, and promote justice and equality for all
those living between the river and the sea._

_In order to foster real and meaningful change, we have to be able to
do this work in the long run. That means paying our Palestinian and
Israeli journalists, as well as providing them with the necessary
legal protections as they report from the frontlines. We have to
ensure that we keep reaching millions of people around the world —
from policymakers to grassroots activists to regular readers — with
the reliable information they need. We remain committed to allowing
people access to this information with no paywalls or ads. To do all
that, we need your support._

_By becoming a member with a monthly contribution of any size (which
you can cancel at any time) [[link removed]], you
will allow us to sustain this work and reach millions of new readers.
We know how to change the conversation on Israel-Palestine. Will you
help us to make that happen?_

* Israel
[[link removed]]
* Supreme Court
[[link removed]]
* Civil Rights
[[link removed]]
* ultra-right
[[link removed]]
* Free Speech
[[link removed]]
* detainees
[[link removed]]
* Ceasefire
[[link removed]]
* anti-government protests
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]

Manage subscription
[[link removed]]

Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]