Israel sees court rulings on Palestinian land as mere 'recommendations'
Supreme Court rebukes state for failing to carry out order to move route of West Bank separation fence.
By Akiva Eldar Tags: Israel Supreme Court Israel news PalestiniansSo what if the Supreme Court rules? In Israel those decisions are just recommendations, especially if they deal with Palestinian land. In most enlightened democratic countries, saying that decisions of the courts obligate the state authorities is like stating that the sun rises in the east. But that may not be so for Israel.
Last week, Supreme Court President Dorit Beinisch had to state that "rulings of this court are not mere recommendations, and the state is obliged to abide by them and to execute them with the necessary speed and efficiency, according to the circumstances of the matter."
The head of the judicial system added: "In the case before us, the state took the law into its own hands."
The case dates back to June 2006. The High Court of Justice at that time responded to a petition from Hamoked - the Center for the Defense of the Individual, and instructed the Defense Ministry to move the route of the separation fence near the villages of Azzun and Nabi Ilyas in the northern West Bank.
Aharon Barak, who was then president of the Supreme Court, stated in the ruling that "the petition points to an event that cannot be tolerated according to which the information that was supplied to the court did not reflect all of the considerations that were taken into account by the decision makers."
He was referring to the fact that the Defense Ministry did not reveal to the court that the route of the fence was congruent with the map of the plan to expand the settlement of Tzufim at the expense of Palestinian lands. The prosecution promised that the fence would be dismantled within six months from the completion of the fence along the new route.
It can be assumed that the officials of the Defense Ministry understood that when the court ordered that the injustice toward the residents of the Palestinian villages be corrected "in the shortest time possible" it was not referring to three and a half years.
In any case, from Beinisch's remarks about a ruling she handed down during a process of contempt of court, it was evident that this was not her interpretation of Barak's ruling.
"It is not possible to put up with conduct of this kind," she scolded the representatives of the prosecution and she ordered the state to pay the petitioners' court costs of NIS 20,000. This sum was added to another NIS 50,000 which the taxpayers paid when the original ruling was handed down as well as the salaries of the lawyers from the prosecution who were sent to defend against the contempt of court ruling.
Before closing the case, Beinisch stated that in countries where there is a rule of law, a political and public storm would have arisen over this.
"In this case before us, the state took the law into its own hands," she said.
And this is not the only case where the Defense Ministry has made a mockery of court decisions relating to the route of the fence. More than two years ago, the court ordered the state to consider an alternative to the fence's route that was robbing the village of Bil'in of lands in favor of the settlement of Modi'in Ilit, and to do so "within a reasonable period of time."
In the ruling that was handed down after 15 months, Beinisch wrote that the alternative that was chosen was not in accordance with the court decision and she ordered the state to abide by it "without further delay."
Since then 10 months have elapsed, the residents of the village and their supporters have demonstrated, the police have used tear gas, and the fence is still in place.
Maskit Handel of the Association of Civil Rights In Israel recently documented no fewer than eight cases where the state was, or still is, in contempt of rulings handed down by the High Court of Justice since 2006. Among other things, she found two decisions relating to the fortification of schools in communities along the border with the Gaza Strip, three decisions instructing the state to build 245 classrooms in East Jerusalem, and a decision to stop making the granting of work permits for migrant workers dependent on their working for a single employer.
Enlightened rule
An affidavit submitted to the High Court of Justice a few weeks ago (in response to a petition) by the Defense Minister's adviser on settlement affairs, Eitan Broshi, indicates that from Ehud Barak's point of view, anything relating to Palestinian rights, and not only the high court's rulings, are nothing more than a recommendation.
The affidavit states that the defense minister has decided, for the time being, to refrain from carrying out demolition orders against nine homes in Ofra that were built on private Palestinian land. The explanation no doubt convinced the Palestinians who lost their lands that they are living under an enlightened rule of occupation.
"There is no point in separating this individual case or any other without seeing the general picture and the system of circumstances under which the respondents are acting," the affidavit stated.
And what is the general picture? Two dozen outposts and numerous illegal homes? And what does the phrase "the system of circumstances" mean? Fear of the settlers?
Daniel Ben Simon, the faction chairman of Barak's party, Labor, declared during a tour of the outposts organized by Peace Now at the end of August, that if they are not vacated by the start of the winter session of the Knesset, "the Labor party will reconsider its continued membership of the government."
No special excitement could be seen among the factions on the right when the winter session opened Monday. However informed sources promise that this time they are serious. The sources reveal that in return for the pass the prime minister received with regard to freezing settlement construction, the defense minister has promised the Americans that there will be a speedy evacuation of the outposts, and he has even shown them the schedule.
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The result is that the Supreme Court is a "law unto itself." It is a citadel of strongly left-liberal ideologues, coercive and indifferent to the democratic process and its representatives. The more to the left it goes, the less the rest of the country is inclined to follow it. The recent resistance even of the head of the Labor Party, Ehud Barak, to its dictates shows how deep this problem is getting. The Supreme Court is losing its credibility. Something like the separation of powers but mutual dependence, and "advise and consent," between them that we find in the U.S. system needs to be introduced into the Israeli system.
There is a big problem with the judiciary in Israel, which makes it quite different from the judiciary in the US and almost all other Western democracies. In the U.S., there is a division of powers between the Executive, the Legislative, and the Judicial institutions, in which each is responsible to the others and restricted by them, e.g., with nominations (made solely by the Executive branch, the President) to the Supreme Court and most other federal courts obliged to get the consent of Congress. But in Israel, the Supreme Court picks and nominates its own members, and is answerable neither to the Parliament nor the Prime Minister.
You suffer from the zionist fallacy that what religion ones ancestors practiced has any relevance today. Except in the tribal sense zionists delight in, religion is a relationship between a person and his god. What ones ancestors did or believed, except as a footnote, is irrelevant.
I suspect you can find SOMEONE who will back any position you want backed. The operative thing is what the consensus of opinion among scholars is.
Dear Colin have you ever heard of `Safiyya bint Huyayy` Why don`t you google her name and see what you get, Maybe you will start understanding how Genetic Jews became Moslims! When you finish reading about her I am hear to give you more examples! P/S Colin One question that seems to trouble me, is if most of the Arab Palestinians were Jewish in the past. What was the big problem of those ``Jewish`` Christian Muslims with granting the Jewish community a Jewish state? If we are all Jewish why is it such a problem even today for the ``Jewish`` Christian Muslims to recognize a Jewish state? One more question (which I wrote Eric some time back), that troubles me, is if most of the Arab Palestinians were Jewish in the past. Why is it that DISTINCT Arab tribes who know of their Jewish identity, are still hiding their Jewish identity and Jewish rituals from their Muslim Brothers (O sorry their ``Jewish`` Christian Muslim brothers) in Palestine, Israel? Thank you!
'How is it determined that these Arabs have any rights to squat on the land in question?' Your argument here contains the implicit claim that the 'Arabs' came from somewhere. That, largely, is false. To a considerably greater extent than the 'Jews,' the 'Arabs' are the physical descendants of the people who have always lived in Israel -- and certainly of those who lived there in Biblical times. Neither group likes the idea, but genetically, at least some of the 'Arabs' are probably more Jewish than the 'Jews.' They merely failed to keep faith, so to speak. This in turn reduces your argument to a matter of accepting the Old Testament, and only the Old Testament, as the source of revealed truth. Not many people are on that bus.
things are no so black and white as you would have it. You make it sound so simple to resolve, but its all very complex and convoluted. It will be resolved when peace treaty is solved, until then security and safety of citiziens is paramount
DZ: "Israel has ownership papers to all of Jerusalem, Judea and Samaria, according to Jacques Gauthier, Ph.D. in International Law," Labhras is talking about SOVEREIGNTY of TERRITORY, Darthie, not about OWNERSHIP of PROPERTY. They are not at all the same thing. Labhras is correct: the Israel High Court of Justice has said that this territory is held under Israeli belligerent occupation. A sovereign state can not occupy its own sovereign territory; the very concept is a contradiction in terms. So if it is "Israeli-occupied" then it can not be "Israeli". And if it is "Israeli" then it can not be "Israeli-occupied". DZ: "He is now touring the world with the summary of his dissertation after 20 years of research into this matter. " And according to the IHCJ he is quite wrong, because the highest court in Israel keeps saying that this is "Israeli-occupied territory".
What democracy in the world would permit its highest court to be ignored with such impunity on such a regular basis? On so many levels, Israel's claim to be the only democracy in the ME has proved to be a cruel and cynical joke.
Settlements Ended Israeli Democracy--In Case You Didn't Already Notice. These are just POST MORTEM forensics now.
This Gauthier's claims appear mostly on protestant millenialist websites. His thesis is hardly new but rather a rehash of the usual zionist propaganda about the Balfour Declaration and San Remo Conferences and his own inferences. look to the judgement of international lawyers and the position of all countires in the world on the legitimacy of Israel's annexation of East Jerusalem. That has some standing.
VHarmand This is not so, There is something called PROPORTIONALITY in Law, You build a Railway, you build a Road, you build a Fence, The principle of PROPORTIONALITY, should be taken into account, There are people living next by, and also their presence should be taken into account in the planning process, So no even if the land is government land the Government cannot build where ever they want and it doesn`t matter if it is in the disputed territories or not, or it has a security value!
At least Israel doesn't have the court appointing the Prime Minister.
?Israel cannot be the sovereign over the land it Occupies? Labhras, you know nothing of International Law. Israel has ownership papers to all of Jerusalem, Judea and Samaria, according to Jacques Gauthier, Ph.D. in International Law, who is a non-Jewish Canadian lawyer. He is now touring the world with the summary of his dissertation after 20 years of research into this matter. You should google this to see if you can post some arguments to the contrary, not to rant about the same falsehood over and over again.
gone --buried---cremated---not even fossilised---kaput--forbei--asta la bye bye--au revoir--. Did you just wake up Paul. The Declaration of Independence in 1948 put an end to San Remo. Poor Harris--still living in the roaring twenties.
"The Land is Government Land but it doesn`t matter the High Court has ruled that the fence has to move,"Gil Well done Gil --at least you have part of the story right. Now remember the same court in case#2056/04 ruled the West Bank as being held under Belligerent Occupation by Israel---so therefore the land cannot be Israeli Governemnt Land as the Occupier--Israel cannot be the sovereign over the land it Occupies. But a good start on your part. Yopu migh make paece yet.
Re gil #8... ... in other words: "everybody is doing what he darn well pleases"... ... well said!
EL Dear EL to answer your question, Look who is fighting for the Palestinian Rights, Israelis who are even members of Kneset Then yes, there are people in Israel who care that once the court has decided the state should act in accordance with the court ruling. EL In every country the biggest criminal of all is the Government itself, That includes the UK and the USA and if you don`t believe me take for example the Chagos Archipelago, a set of Islands Britain took from the Chagosians and is leasing it for years to the USA for 2 billion $ a year. Even though the Chagosians won in the British High Court, the British Government does not allow them to return to their Islands, and to keep them off the Island the Blair Government used the last trick in the monarchy book, they went to the Queen to rubber stamp them a ROYAL DECREE. One that would overrules the decision of the High Court. One that will evict them for ever. The British and Americans are all on it. Do the British or American people even care? Apparently, NOT! And now for my part, Shame, on my Government, who has become, as the British!
Just more Israeli violations of Palestinian human rights. Israel ignores its own justice system to continue exploitation of Palestinians. Israel is not a nation state in the tradition of our Jewish heritage. It is a nation state in tbhe tradition of European colonialism. Violence is justified by greed and expansionism.
Chaim- there was a court that looked at evidence.. you are trying to create "evidence".a new world with your Words (Squat)... When this is all the ammunition we, as settlers, have, it is time to consider what the heck we are doing here.
EL Dear EL to answer your question, Look who is fighting for the Palestinian Rights, Israelis who are even members of Kneset Then yes, there are people in Israel who care that once the court has decided the state should act in accordance with the court ruling. EL In every country the biggest criminal of all is the Government itself, That includes the UK and the USA and if you don`t believe me take for example the Chagos Archipelago, a set of Islands Britain took from the Chagosians and is leasing it for years to the USA for 2 billion $ a year. Even though the Chagosians won in the British High Court, the British Government does not allow them to return to their Islands, and to keep them off the Island the Blair Government used the last trick in the monarchy book, they went to the Queen to rubber stamp them a ROYAL DECREE. One that would overrules the decision of the High Court. One that will evict them for ever. The British and Americans are all on it. Do the British or American people even care? Apparently, NOT! And now for my part, Shame, on my Government, who has become, as the British!
I worked for a few years in a South American country with one of its military branches. . It was somewhat typical of others in South America. I discovered that going into the military was also an alternate career part that could lead into politics. Looking at the major political figures in Israel shows a surprising similarity. But in all cases I have seen in South America, the Judiciary is weak and ignored by the governments with the same indifference and with the same impunity. I also saw that the military were not restricted by the police as were ordinary civilians. The article does bring up some interesting questions and offers an amazing insight into the only democracy in the Middle East. What is the basis for the court deciding what is Palestinian land, and what Is Israeli land, in the conquered territories? If the government has a legal claim that any part is Israeli why isn’t all of it Israeli? If any part is Palestinian then all of it is. Or is the unstated issue really about who has more rights based on religious or ethnic entitlements under the law? Jews or Palestinians? In South America the indigenous Indian population was often treated more like the Palestinians are in Israel. That is they had lesser rights than those of European descent. The PLA has stated that in a final partition Jews could have Pal citizenship and live in a Palestine state. I am beginning to wonder who would be treated more fairly. A Jew living in a Palestinian state, or a Palestinian living in a Jewish state. Only one side has any record to point to, and it is not encouraging.
Since when? Let's face it. Israel is going down the same path as apartheid South Africa. It's a disaster and simply has no future. It's come to that. This utter disregard for the rulings of the Supreme Court has eliminated the relevance of the judiciary and when that happens, to call this state a "democracy" is a travesty.
the court of aharon barak did not follow any law in its decisions and made ad hoc rules. the land is all israel and therefore the fence can be built wherever the govt wishes !! ignoring international treaties like san remo 1920 shows contempt for law !!
Cham Ban Kahan The Land is Government Land but it doesn`t matter the High Court has ruled that the fence has to move, so it has to move. You are living in a country where there is a thing called a court and it has been given the privilege of determining what they see as just and what is not. Even if you think the court made a mistake (and courts by the way make mistakes after all Judges are people), the court ruling has to be flowed to the note. בימים ההם אין מלך בישראל איש הישר בעיניו יעשה
EL May, May, you are asking a question and straight away answering it, Dear EL to answer your question, Look who is fighting for the Palestinian Rights, Israelis who are even members of Kneset Then yes, there are people in Israel who care that once the court has decided the state should act in accordance with the court ruling. EL In every country the biggest criminal of all is the Government itself, That includes the UK and the USA and if you don`t believe me take for example the Chagos Archipelago, a set of Islands Britain took from the Chagosians and is leasing it for years to the USA for 2 billion $ a year. Even though the Chagosians won in the British High Court, the British Government does not allow them to return to their Islands, and to keep them off the Island the Blair Government used the last trick in the monarchy book, they went to the Queen to rubber stamp them a ROYAL DECREE. One that would overrules the decision of the High Court. One that will evict them for ever. The British and Americans are all on it. Do the British or American people even care? Apparently, NOT! And now for my part, Shame, on my Government, who has become, as the British!
the point is that the court has ruled and the state simply ignores it. if the state ignores the dupreme court, what else is left? it's about as low as you can get...
How is it determined that these Arabs have any rights to squat on the land in question?
... Israel has now declared that UN decisions are null-and-void... (unless they are in our favor)... ... Why should our High Court be treated any differently...?
Barak says. If the Minister of Defense thinks that Supreme Court rulings are merely "recommendations," then where is the rule of law in Israel? Does the general public know about it? Does it even care? Israeli society is getting sicker and sicker and it is hard to fathom just what it would take to make it saner. No wonder Israel is losing so many friends and so fast. Way to go, Israel!
All this arrogance in Israeli regime makes them blind - not only to court rulings, but also to their own limitation. In the battle of attrition that Israeli right wing has embarked on, strangely it is the Palestinians who have the upper hand.
Any questions as to whether Israel was A. a banana republic or B. a modern democracy ruled by law have been effectively answered.
Jail time for contempt of court is common in many democratic countries where the contempt is persistent and pernicious. In the US, a judge warned the Secretary of the Interior once to bring a toothbrush to the contempt hearing if the ordered action had not yet occurred. His lawyer brought the evidence that the ordered action had been carried out. (An accounting of Indian monies held in trust.) And now somebody will end up in jail. Maybe a few months in jail is what's needed. And jail the elected politician who is the Minister and is supposed to be in charge.