Failed Marks in Comprehension

According to Friedmann, instead of ordering the dismantling of the fence, the Supreme Court should have made do with a statement by the official representing the state in court, that this route is in accordance with 'military requirements.'

If a law student had written that a Supreme Court ruling ordering changes to the route of the separation fence could be compared to a situation in which the judiciary intervened in a government decision to bomb the nuclear reactor of an enemy state - he would receive an "F." Had he compared the situation of Palestinian landowners, whose rights are violated by the fence, to the victims of a vital military operation, it would have shown that he did not read the assigned material. However, when such comparisons are being made by the recipient of the Israel Prize in Law, it is hard to decide which is worse: the fact that Prof. Daniel Friedmann has not read the Supreme Court rulings, or that Justice Minister Friedmann is deviously enlisting security issues in his war against the Supreme Court.

Indeed, the petitions to the High Court of Justice and the rulings ordering corrections in the original route of the separation fence are causing delays in the completion of the work, and are harmful to the security of Israeli citizens. But those responsible for this ongoing failure are not the people sitting on the bench of the Supreme Court. It is not the justices who drew the route of the fence near the settlement of Tzofin in the northern West Bank, in keeping with the blueprints of plans for an industrial zone that is to be set up in that area (and whose establishment has not even been approved). The Defense Ministry, with the full backing of the Prime Minister's Office, has presented this encroaching settler route as a "security route." According to a letter sent by Attorney General Menachem Mazuz to then defense minister Amir Peretz, this was arranged behind his back.

Since last June, when the ruling regarding the Tzofin area was issued, experts from the Council for Peace and Security brought before the High Court effective alternatives to the route of the fence in 10 other areas. Their suggestions minimize the damage caused to Palestinian property rights and save Israelis hundreds of millions of shekels.

According to Justice Minister Friedmann, instead of ordering the dismantling of parts of the fence, the Supreme Court should have ignored these villainous and foolish acts, and made do with a statement by the official representing the state in court, that this route is in accordance with "military requirements." It is hard to believe that Prof. Friedmann does not know that the High Court ruling on Elon Moreh (1979) states that the general claim of "military requirements" is insufficient justification for the expropriation of occupied territories, and that every such act must be justified on its own merit.

When Friedmann takes a break from his war against Justice Dorit Beinisch, it would be a good idea for him to take a look at a legal opinion prepared by an inter-ministerial team of experts, following the ruling of the International Court of Justice at the Hague on the matter of the separation fence in the summer 2004. In a letter to then prime minister Ariel Sharon, Mazuz recommended that all decisions regarding the route of the fence, and the buffer area around it, should be commensurate with the principles set by the High Court ruling in the case of Beit Surik (in which 30 kilometers of fence's route were disallowed). The attorney general also proposed that the new route plan should be bolstered by a new government decision, so that "the world can see that Israel implements international law in accordance with the rulings of its own courts."

"The negative implications of the court's decision on the State of Israel, on various level, including matters beyond the separation fence, cannot be exaggerated," Mazuz wrote then in his opinion.

Had Sharon opted for Friedmann's outlook, according to which security is beyond the law, Israel would have suffered international sanctions. Essentially, the High Court offered the government a ladder, which Sharon was smart enough to use to climb down from the fence. Now Friedmann would like the government to climb back up.

The fence is not the only issue in which Friedmann's outlook of the world emerges from the narrow space of a gun's crosshairs. In other "security" matters, too - like amending the law granting citizens injured during the intifada as a result of gross negligence the right to sue for damages - Friedmann chooses to ignore the broader legal context and international law. Senior legal experts in the Justice Ministry can surely inform the minister that if Israel refuses to pay compensation to those who suffered injury in the intifada, they are liable to sue for them in the United States or demand that money they are due be collected there. At the Foreign Ministry they would be glad to tell him that their best defense in response to complaints made in international forums about the use of unreasonable force, is a High Court ruling ordering an end to torture.

The High Court of Justice is a dear asset for every law-abiding state. It is all the more valuable for a country that is asking the world to show understanding vis-a-vis its occupation policy, and support for its decision to destroy the nuclear reactor of a neighboring country.