Opinion

Why Did Three Decent Israeli Supreme Court Justices Sign Off on Sniper Fire on Gaza Protesters?

And what I would have done in their place

Palestinian protesters evacuate a wounded youth near the Gaza Strip's border with Israel, east of Khan Younis,  May 25, 2018.
Adel Hana/AP

Three justices: Supreme Court President Esther Hayut, deputy president Hanan Melcer and Justice Neal Hendel. Justice Hayut started out as a registrar in the Tel Aviv Magistrate’s Court, in a small room in the courthouse, at the entrance to the Vale of Tears: the corridor where the detention hall, the bailiff’s office and the accounts department are located.

Hayut progressed slowly but surely to the Supreme Court, by dint of industriousness, honesty, a businesslike approach and the ability to discern quickly the legal or factual issue at stake and formulate it for the two sides. She wasn’t part of any clique, didn’t live in Jerusalem’s upscale Rehavia neighborhood and didn’t take trips to the Chianti Trail in Tuscany. She was elected to the Supreme Court in order to “do the job,” to provide speedy, good service to the court’s clients.

I only know her from my appearances in court, mostly before the Supreme Court. When I see her and encounter her sarcasm, I recall the Greek origin of the word sarcasm: “to tear flesh” with one’s teeth.

Justice Neal Hendel is an American by origin and is religiously observant, from the school of Rabbi Joseph Soloveitchik, the most enlightened and philosophical of the leaders of American Jewry, a successor to Hermann Cohen and Franz Rosenzweig. Theirs is a profound philosophical way of thought, which Judaism could have drawn on and from which it could have created a state of morality and mercy, had it not been desecrated by Rabbi Abraham Isaac Kook and his messianic successors, Hanan Porat, Ze’ev (“Zambish”) Hever and the members of the 1980s Jewish underground, who hold key posts in the settlement project. (Go see the movie “The Jewish Underground,” which was screened at the recent Docaviv Festival in Tel Aviv, and you won’t be able to sleep for two nights.)

I first met Justice Hendel in the Be’er Sheva District Court, a dramatic encounter that left a profound impression on the core of my being and in large measure influenced my decision to go on being a lawyer to this day, despite the frequent defeats and the heartbreak. In the 1993 case involving the murder and rape of teenager Hanit Kikos, Judge Hendel was the only one of the tribunal of judges who believed that my client Suleiman al-Abeid was innocent. Hendel fought like a lion to persuade the president of the Be’er Sheva court, Judge Gilad Giladi, to join him in acquitting Abeid, contrary to the opinion of Judge Zvi Segal. And indeed, according to urban legend, which isn’t a legend, Judge Giladi had written a ruling acquitting Abeid, and a date had even been set to announce the exonerating verdict – but in the end he couldn’t stand up to Judge Segal, who the day before the judgment was handed down persuaded him to convict and not to acquit.

From left: Hanan Melcer, Esther Hayut and Neal Hendel.
Noam Revkin-Fenton

Until a few years ago, whenever I appeared before Judge Hendel, he asked how Suleiman was doing and what I was doing to get him released. I was ashamed to say that there was actually no more that I could do.

Justice Hanan Melcer was appointed to the Supreme Court from the private sector in the period when Justice Minister Daniel Friedmann decided to appoint justices from outside the system – the same period in which Friedmann offered me an appointment to the Supreme Court, as I’ve written about before. I knew Hanan Melcer as a decent, worthy, unaggressive lawyer, an expert of the first rank in the field of administrative law. We even appeared together in the same case.

Here are three justices who, each by their own path, reached the summit of the world of law, Supreme Court justices over whom there is no authority other than the law. Each of them is a Lionel Messi or a Lebron James in his field. Even in the dressing room, stripped of their robes, there’s an aura about them.

Then why did three decent people rule on May 23, 2018, that the Israel Defense Forces’ use of live fire against Palestinians at the Gaza Strip border fence was in accordance with Israeli law, the rules of engagement and international law; that participants in the recent demonstrations constituted a concrete danger to the soldiers and to the citizens of the State of Israel; and that there was no way to stop them other than by live fire, which killed some 110 people, inflicted serious bullet wounds on about 1,500 people, and slightly wounded another 1,500 or so, most of them young, some of them children, as well as medical teams?

Only relatives of those wounded or those who have been seriously or moderately wounded themselves know how severely injuries like those can affect a family. Change life from beginning to end. Quash all hope.

There are moments in Courtroom C when a heavy cloud covers the skylight and a strange darkness descends upon the hall. Is that what happened here? The petitioners refused to agree to you – the justices – perusing the intelligence material in their absence. They already know how in the case of the expulsion of the asylum seekers the state prosecution misled the court seriously, so why trust it now to present a true rather than a false document?

The petitioners, too – lame, amputees, jawless, figures out of Hieronymus Bosch who huddled by the door of Courtroom C (the president’s courtroom) in a line that extended as far as Courtroom E – wanted to know why they’d been shot. You won’t go in there without us, they told their lawyers from the human-rights organizations.

Why, honorable justices, did you refuse to view the video clips that attorney Suhad Bishara, from Adalah: The Legal Center for Arab Minority Rights in Israel, asked you to look at? In them you could have seen how Palestinian medical teams in unmistakable uniforms, clearly marked, were shot.

If I’d been one of the lawyers, I would have asked, “And not one of the snipers refused?” Those snipers will eventually appear before the military committee that determines disability compensation. They will ask me to represent them and claim post-traumatic stress disorder. Because they were ordered to fire at human beings as if they were cardboard cutouts, and weren’t told that blood bursts from these cutouts, the intestines slop out, the brain is splattered on the wall like a plate of couscous.

They won’t get disability benefits. That’s the way it is with our army – easy to squeeze the trigger, hard to put a hand in the pocket. Don’t be pussies, the senior officer on the disability-compensation panel will tell them: You’re in the army, not the Boy Scouts. As they once told a client of mine, who had seen action in the Second Lebanon War, who was covered with someone else’s body parts as a result of a direct hit by a mortar shell.

Justice Hendel, maybe because of you I remained a lawyer and didn’t quit after every heartbreak, of which there have been plenty, and maybe because of you, I’ll leave the profession. Too bad I didn’t accept the appointment to the Supreme Court. I’d have sat next to the president and would have screamed and screamed, I would have torn flesh with my teeth, until the president ordered the guards to drag me from my chair to the heavily secured isolation room on the third floor, which few people know about, and injected me with Risperdal. I would gradually calm down, and the president of the court would sign an order of involuntary hospitalization for a person who’s a danger to himself and to his surroundings.