The deputy president, Shlomo Levin, shifted impatiently in his chair. "We need to put an end to this. Please, the man must find a country for himself," the lofty judge ruled. This was in 2000. Back then, the man the High Court sent to "find a country for himself" had already spent two and a half years in prison without a trial. His wife and seven children live in a town near Jenin. He was prohibited from living with them because of a regulation stipulating that any resident who leaves the territories for more than six years is forbidden to return.
Mahmoud Azam did not find a country for himself. Dorit Beinisch, then a member of the judicial panel, suggested Lebanon. Levin proposed Pakistan. They gave him half an hour to decide, but Azam wanted to return to his family and home. The Shin Bet issued warnings about him - his uncle had once been a cohort of Osama bin Laden - but the security service had no evidence against him. Azam is still incarcerated: 10 years without a trial, Israel 2007 - for the information of President Beinisch and her defenders.
Advocates of law and human rights are now being asked to defend this same Supreme Court against Justice Minister Daniel Friedmann's plot to clip its wings. As just as the battle against Friedmann may be, it is worth noting what and who we are defending. Those who are now warning against a blow to human rights should remember that this is only the lesser of the evils: The High Court has not defended the rights of the weak, as it is now claiming. The talk about "judicial activism" is also exaggerated: The activism always stopped at the Green Line. In light of everything that has occurred on the other side, in our dark backyard, we have witnessed disastrous judicial passivism.
The High Court is the most faithful and dedicated partner of the occupation enterprise, granting legitimacy to most of its injustices. If it had spoken up during the early days of the occupation, we would not be where we are now. If only it had ruled, for example, that the settlements violate international law, perhaps today we would not be facing a criminal enterprise numbering a quarter of a million people. If the court had fulfilled its role and ruled that international law prohibits transferring prisoners outside an occupied territory, or obligates the occupier to ensure the welfare of the residents living in the territory it controls, the reality in the territories would be different today.
Six presidents, most of them very powerful, have headed the court during the years of occupation. During the past fateful 24 years, Meir Shamgar and Aharon Barak presided over the court, leading it to its peak influence. But they never gathered the courage to place significant legal restrictions on the occupation. Cowards - there is no other way to define them - they deferred for years the petitions brought before the court, such as those against liquidations and torture. When the day of accounting for the occupation arrives, the High Court justices will find themselves in the first row of the accused.
The High Court has never ruled about the settlement enterprise. Don't we deserve to know whether this enterprise, which the entire world considers illegal, is legal or not? And who is supposed to determine this if not our Supreme Court? But the High Court only gets involved in minor matters. It changed the route of the separation wall, but never ruled on the essence of building a fence in the heart of occupied territory. Since it has almost always accepted the arguments of the defense establishment, human rights organizations have sometimes hesitated to petition the court, fearing that this beacon of justice would legitimize another injustice. Moreover, according to many testimonies, the Shin Bet has resumed torturing prisoners and Israel Defense Forces soldiers are again using the "neighbor procedure," thereby violating the High Court's prohibition. And the court has remained silent.
All this should be remembered as we now gather to fight for the High Court. A High Court that permits the incarceration of a man for 10 years without a trial and bears heavy historical responsibility for the occupation is a High Court that deserves a limited defense - and even then only because the alternative is even worse.
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