Black flag over the High Court
A state that assassinates dozens of individuals without trial - including not only those who were on their way to carry out a terrorist attack but also those who in the eyes of the security authorities deserved to die - is not a law-abiding state.
The son of Supreme Court Justice Mishael Cheshin is apparently serving with the Israeli forces in the territories. That, at any rate, is what the justice said in the course of the hearing on petitions against the liquidation of Palestinians last week in the High Court of Justice. "My son goes into that territory and I don't want to endanger him," the justice said in reply to a question from the representative of the petitioners about why Israel assassinates wanted individuals instead of arresting them.
This is not the first time that Justice Cheshin has brought his family into legal matters. More than two years ago, during a hearing on a petition filed by members of the Jahallin tribe, Bedouin who were forced off their land to make possible the expansion of the West Bank settlement of Ma'aleh Adumim, the justice related that his brother lived in that city. But citing the safety of judges' relatives in the court's considerations was not the worst news that emerged from the High Court hearing on the liquidations. Far worse was the court's decision not to intervene in the matter.
The High Court rejected the petitions of MK Mohammed Barakeh, the chairman of the Hadash faction, and of Siham Thabet, the widow of Dr. Thabet Thabet, who was liquidated by Israel, requesting that the court order the authorities to stop the liquidations. Justices Eliyahu Mazza, Edmond Levy and Cheshin ruled that the High Court does not customarily intervene in issues relating to combat. That is bad news for the advocates of law and justice in Israel.
The Israel Defense Forces and the other security units can henceforth do as they please - kill, demolish, bomb - safe in the knowledge that the highest court in the land will take a hands-off attitude. What resort does a citizen have who believes that Israel is committing war crimes? Where will he turn? Who can now prevent, in the name of the law, the implementation of flagrantly illegal orders, of the type that even a person with an impeccable security record such as former Shin Bet security service chief Ami Ayalon is now warning about, while expressing regret that the number of soldiers who refuse to obey such orders is not higher?
The High Court, after all, has decreed that it does not intervene in matters of combat.
Thus there is only one way left for those who wish to put a stop to what they perceive as war crimes: to turn to judicial bodies in other countries, such as the Belgian court, or to international tribunals such as the one in The Hague. It will be difficult to complain that human rights activists in Israel are "informing" to foreign judicial institutions: they have nowhere to turn in Israel, after the High Court cast off its responsibility to stop targeted killings.
"A reason is needed for us to intervene," Justice Mazza said in the hearing. The killing, to date, of 48 wanted individuals without a trial and of another 26 people who happened to be at the site of some of the liquidations (according to the Palestinian Human Rights Monitoring Group; the IDF does not provide information on the scope of the phenomenon), does not constitute a sufficient "reason" for the highest judicial authority in Israel to consider such a problematic subject. Not a few enlightened governments consider liquidations to be war crimes, but the Israeli court is unwilling to render an opinion. By taking this approach, the court effectively validates the wrongdoing and records another milestone in the dangerous deterioration in the preservation of law and justice in Israel. Half of Yitzhak Rabin's dream during the first intifada - "without the High Court and without [the human rights organization] B'Tselem" - is coming true.
This is not the first time that the High Court of Justice has declined to intervene in order to prevent the perpetration of wrongs and war crimes. It took the court five years to reach the conclusion that the torture tactics used by the Shin Bet are not legal, and during that period, the justices repeatedly deferred the discussion of the petitions that were submitted on the subject. One fine day the court decided that torture is illegal without even bothering to explain what had suddenly changed its mind, after thousands of Palestinians had been subjected to torture. Now even that late-coming decision on torture is cause for wondering: why was torture "justiciable" while the liquidations are not? After all, the torture tactics were also part of the measures to combat terrorism.
A black flag now hangs over the High Court of Justice. A state that assassinates dozens of individuals without trial - including not only those who were on their way to carry out a terrorist attack but also those who in the eyes of the security authorities deserved to die - is not a law-abiding state. By not rendering its opinion, the High Court was derelict in its duty. Mustafa Yassin, who was murdered at the entrance to his house by a Border Police force - he was unarmed and wearing only short pants at the time, and his wife and baby daughter were next to him - did not deserve to die. In his case, it has still not been clarified whether the killing was due to mistaken identity. The student Anwar Himran, who was liquidated next to the university he attended, in Nablus, while carrying his notebooks, was not on the way to carry out a terrorist attack, according to testimonies. Only the High Court of Justice could have determined the legality of these acts. By deciding to disregard them, it is abandoning the arena solely to the security forces, without any legal restraint on their actions. The IDF has stopped investigating almost completely, the international court is perceived here to be fine for the entire world with the exception of Israel, and now the High Court is evading its duty and it, too, is telling the security authorities: the important thing is for Justice Cheshin's son to feel safe.
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