Israel's High Court; the Champion of Human Rights

Gideon Levy
Gideon Levy
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Supreme Court President Esther Hayut in the court on Sunday.
Supreme Court President Esther Hayut in the court on Sunday.Credit: Emil Salman
Gideon Levy
Gideon Levy

Israel’s beacon of justice shone again: the High Court justices opened Israel’s skies, and the people of Israel went from slavery to freedom on the eve of Passover. Parents were united with children, grandchildren with their grandparents – and all because of the High Court. What would we do without it? The justices waxed poetic, issuing a paean to human rights. “It is needless to waste words on the importance of the right of citizens to exit their country, and no less, the right to return to it,” the freedom fighter and court president, Esther Hayut wrote in flowery text. One’s heart bursts with pride. How enlightened, what a sense of justice, what courage. The court stood up against the executive branch and overcame it.

Let’s leave aside the insane hysteria over the closing of the skies for two months. When the skies were open, they screamed anarchy; when the skies were closed, they screamed tyranny. “Open, closed, open,” like the name of Yehuda Amichai’s book, the undaunted anybody-but-Bibi camp will always scream. Now the High Court has put a stop to the tyranny. But is this the way it always acts? Will it always sanctify the right to leave and return to your country?

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Alas, the justices’ fine words are reserved only for cases where they feel no harm will come to them. They are big heroes when pitted against the weak health care system. All of a sudden the value of freedom is more important than the right to life; all of a sudden everyone must bow their heads before human rights.

When it comes to the defense establishment, the court behaves differently. The same words, but the other way around. Suddenly human rights and freedom are subservient to the idol of security, to which the justices will always prostrate themselves. How did the hand of Justice Isaac Amit not tremble when he wrote about the “ten constitutional plagues” that the coronavirus brought down upon us, knowing that for decades, Israel has brought them all down on the Palestinians? How did a muscle not twitch in Justice Hayut’s face when she wrote about the harm to Israel’s citizens, who were not allowed to fly for a brief moment “with all the psychological, familial, health and economic implications of this,” when this is the daily reality of millions of Palestinians? After all, this is the same court that approves every whim of the security establishment and Israel’s every cruel decree.

Gaza has been under siege for 15 years, and there, too, Justice Hayut, there are “psychological and economic implications”; parents torn away from their children, sick people denied medical care, workers denied a livelihood, students denied an education – all are victims of the occupation, against which the High Court does not dare stand up. It easily approves detention without trial, house demolitions, sharpshooters firing on unarmed demonstrators. It does not lift a finger to permit students to leave for their studies, it repeatedly prevents the citizen Mordechai Vanunu from leaving the country.

When it comes to Vanunu, all the High Court’s lofty words about the right of citizens to leave their country fall silent. When it comes to Gazans who want to leave their prison-country no fine words about “psychological implications” emerge. When it comes to Palestinians in the diaspora who want to visit or live in their country, no high-minded words are uttered about people whom “the state has placed in trouble overseas.” There are experts who warn of the implications of opening the skies, but the court ignores them. The only warnings they fear are from the Shin Bet security service.

It’s very easy to raise up the spirit of freedom against the Health Ministry. The justices understand security exactly the way they understand epidemiology, but it’s easy for them to reject the reports of medical experts – not so those of security officials. Before these, they must always bow submissively. The court that folds before the security establishment is not enlightened; it is part of tyranny, even if it saw to the opening of the skies for Israelis. What about open skies and freedom and human rights and obeying international law when it comes to those under occupation? For that, justices need a lot more courage, which none of them has. Do we want judicial activism? Fine. But let it be everywhere, not just in the comfort zones of a cowardly court.

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