Opinion |

What Crime Is Permissible for a Supreme Court Justice?

A photo of Dr. Zvi Bar'el.
Zvi Bar'el
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Judge Khaled Kabub at the Tel Aviv District Court, last year.
Judge Khaled Kabub at the Tel Aviv District Court, last year.Credit: Moti Milrod
A photo of Dr. Zvi Bar'el.
Zvi Bar'el

Judge Khaled Kabub, the first Muslim Arab to be nominated to the Supreme Court, has suddenly become suspected of contact with terror organizations. According to information provided to the Judicial Appointments Committee, Kabub committed a serious crime for which a rank-and-file citizen, in Israel or in the territories, would certainly have been prosecuted, or at least sent into administration detention.

The judge, according to the story that was published over a year ago on the Jaffa 48 website and has now erupted from the depths, met with representatives of “terror supporting” organizations. One of them is Yousef Mukhaimar, head of Murabitun, whose activists have been arrested in the past on charges of fomenting violence on the Temple Mount, and the other is Sheikh Ekrima Sabri, who heads the Supreme Muslim Council and is the former mufti of Jerusalem, and headed a charitable organization that was outlawed.

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Kabub appeared with them at a Jaffa ceremony where Kabub’s late father, who was appointed by the Israeli government as the director of the Jaffa waqf (religious trust) and who died in 2006, was presented with a plaque in appreciation of “his activity on behalf of the Arab community in Jaffa,” according to a response to the accusations released on Kabub’s behalf.

Of course, we know the identity of the “community in Jaffa” – it’s the one that lynches Jews. “We certainly won’t give a seat on the Supreme Court to Kabub, but even on the district court it isn’t proper to have a judge who met with people who encourage terror attacks,” opined a member of the Judicial Appointments Committee. How is it that the Shin Bet security service didn’t investigate this earlier?

Fortunately, the “incriminating information” against Kabub is surfacing now, in time to open the eyes of the committee members. But if Kabub’s appointment to the Supreme Court is confirmed anyhow, he will only be joining two other criminals already serving in that lofty institution: Justice David Mintz and Justice Noam Sohlberg, residents of the West Bank settlements of Dolev and Alon Shvut, respectively. The two live in communities whose very establishment is a crime under international law. But apparently there are crimes that are permissible.

When in 2012 Justice Esther Hayut heard a petition submitted by the left-wing organization Yesh Gvul against Sohlberg’s appointment, she responded: “I have reread the Basic Law on the Judiciary and I didn’t find that the place of residence of the respondent in Alon Shvut constitutes a reason or an obstacle for holding the position of a judge, including a Supreme Court justice.”

Interesting. Residence in an illegal community doesn’t disqualify a judge, since he didn’t invade a home that doesn’t belong to him or take over land by force. He only lives in a place built on stolen land. Judges, as we know, are free of any political opinions and ideological preferences. They are also allowed to live in an inexpensive, comfortable place with a good quality of life, just like other settlers.

But five years later, in 2017, Supreme Court President Miriam Naor made clear that the settlements are not a neutral place but a disputed political project. She ordered Supreme Court Justice Neal Hendel not to participate in a ceremony to mark the jubilee of the “liberation of Judea, Samaria, the Jordan Valley and the Golan Heights” for fear that the Supreme Court would seem to be granting a seal of approval to the settlement enterprise.

In doing so she only intensified the political significance of the fact that judges are living in the territories, and even more so when the settlers, including the judges themselves, are the foundation on which the judicial discrimination between the settlers and the Palestinians was built – discrimination that legal scholar Yehudit Karp has defined as apartheid.

As opposed to Mintz and Sohlberg, Kabub didn’t commit any crime when he received a plaque for his father’s public activity, even if the names of illegal organizations are engraved on the plaque. The fault his opponents are trying to pin on him is unrelated to his abilities, his experience or his judicial skills, which have earned him the full support of the Supreme Court president. It is not Kabub who should be publicly prosecuted, but the settlers’ desecration of the court.

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