A War Without the High Court

Once there was a High Court, where one could take a tortured soul and hear a few comforting words – words like 'proportionality' and 'morality of war.'

Avigdor Feldman.
Avigdor Feldman
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Israel's Supreme Court in Jerusalem.
Israel's Supreme Court in Jerusalem.Credit: Emil Salman
Avigdor Feldman.
Avigdor Feldman

Something was missing during this war, some fundamental flavor that brings out the full potential of all the ingredients. It was missing like hawaij in a Yemenite calf’s-foot soup. It was only towards the end of the fighting that I understood what made this dish seem even blander than any of its components. The missing hawaij was the High Court of Justice, which was barely in evidence during this operation.

There was, in fact, one minor petition at the beginning of the war. The day after a Bedouin man was killed and his daughter badly wounded, the High Court rejected a petition by the Association for Civil Rights in Israel asking the court to order the government to provide shelter in the Bedouin villages where some 200,000 people live. These villages are considered “open areas,” and thus are not protected by the Iron Dome anti-rocket defense system. In its ruling the court accepted the state’s position that lying on the ground with one’s arms crossed over one’s head is preferred over free-standing shelters. But then another little Bedouin girl was badly hurt. Moreover, those few Bedouin who built their own shelters were rewarded with demolition orders that were executed with speed and determination.

Perhaps we can assume that after the reception ACRI got in the High Court, its attorneys lost any desire to don the black robes, travel to Jerusalem, get stuck in traffic, find parking, and walk half a kilometer up the hill in the heat, only to face a Supreme Court president who opposes judicial intervention in any issue that has no explicit provisions in the Civil Procedure Regulations, or at least in the Administrative Appeals Law. Perhaps there was no need for the High Court since Operation Protective Edge was conducted according to every clause and sub-clause of the Rome Statute of the International Criminal Court. But a glimpse at the conduct of the operation left some room for a few quick trips to Jerusalem. For example, the silence of the lambs over the “Hannibal Directive” to prevent the abduction of soldiers – its legality, validity, and its use -- which led to the criminal killing of more than a hundred civilians, referred to in the military’s laundered lingo as “uninvolved.” Petitions were filed years ago about the rules of engagement, about the shooting of masked men, about targeted killings. We wrote many lovely petitions and traveled to the High Court with them. What are any of those compared to the Hannibal procedure, which Operation Protective Edge unleashed?

What about the decision to bring down several high-rise buildings in central Gaza? Prime Minister Benjamin Netanyahu referred to them as “terror towers,” and I sensed a wild, out-of-control association with the twin towers of the World Trade Center felled in the 9/11 attacks. Was that not worth an urgent High Court petition that would have forced the prime minister to explain whether he’d become a bit confused, or perhaps this was a “green” planning move to improve Gaza’s Mediterranean skyline, which is characterized by low-rise, blown-up houses, decorated in the finest local tradition with torn mattresses and children’s toys, and by getting rid of those ugly skyscrapers that were blocking the sea view?

Only a few years ago every such event and many others would have had ACRI, B’Tselem, Yesh Din and attorneys Hassan Jabareen, Leah Tsemel, Michael Sfard and myself scurrying to the High Court – not so much in hope of obtaining a remedy, but because we simply could not stay home, pace the floor, yell at our spouses and kids, or post something crazy on Facebook based on a dream in which Netanyahu had dyed his hair a glowing pink.

Once there was a High Court, and the High Court was the public marketplace where one could take a tortured soul, lay one’s head on the shoulder of former court President Aharon Barak and get a comforting caress and a few comforting words – words like “proportionality” and “morality of war” – and for at least a minute not hear Likud MK Danny Danon, and be able to escape the flexed eyebrows of Channel 2 military correspondent Roni Daniel. But Operation Protective Edge left the square empty. The High Court of Justice had disappeared.

One cannot blame the High Court, because the High Court is like a finger puppet. It doesn’t move or talk unless there’s a finger inside moving it. And those fingers were buried deep in people’s pockets. We’ve silenced the clear piccolo (in the words of Justice Mishael Cheshin) that could have been heard over the 50 days of screaming and prattling, like the piccolo in the finale of Beethoven’s Ninth Symphony. But no petitions were filed, no judicial panels convened in the middle of the night, no interim injunctions were delivered urgently to the prime minister or the defense minister. No petitions were scribbled out in pen en route to the Supreme Court Building.

By chance I visited the Supreme Court recently. Vacation time. There was barely a sound. Two panels were sitting in courtrooms C and D. On the agenda were three cases, civil appeals of the Pashpiorka vs. Pashpiorka type. Even the caretaker who usually makes sure to remove every spot from the polished marble floor was sitting on one of the benches with nothing to do, dreaming of the days when he was director of neurosurgery at a hospital in Krakow.

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