The High Court and the Gaza Beach

The eradication of another family in Gaza is not a "regrettable mistake" that is to be debited to "the human factor." That is, due to a Palestinian fighter who opened fire or an Israeli fighter, who both missed. This is the price that is exacted in advance by a doctrine that has taken hold in the recent conflict. It was articulated most bluntly by retired Supreme Court justice Mishael Cheshin, who was the vice president of that court, who stated that outgoing Supreme Court President Aharon Barak "is ready for 30, 50 people to be blown up, but we will have human rights." In more military parlance, the reference is to "the slight knock on the wing" that the pilot-now-chief of staff felt when he dropped the bomb on the home of a "wanted man" in the heart of a residential neighborhood.

When we are informed daily of dozens of more or less specific warnings of possible attacks against us - what do we care about the lines at the roadblocks, the closures on the towns of the West Bank, the siege of the Gaza Strip and the confiscation of lands for "the security fence"? Contrary to Cheshin's claim, petitions on which the High Court of Justice has ruled that the environmental punishment of a large Palestinian population is "disproportionate" are few and far between. For the most part the magic words "security considerations" tip the scales. But even these rare instances disturb our politicians.

Prime Minister Ehud Olmert and Justice Minister Haim Ramon, and prime ministers like Yitzhak Rabin in his day, would have managed very well, thank you, without the High Court of Justice and B'Tselem, the Israeli Information Center for Human Rights in the Occupied Territories. In order to complete the so-called convergence fence along its invasive route and to strike hard at the Palestinians (and if necessary - also the Jews) who stand in its way, the government needs a weak, passive and submissive Supreme Court.

Therefore, the battle for the independence of the Supreme Court is not a passing battle for prestige, but rather an uphill battle for its status in the coming years. Years in which it will be required more and more frequently to address the delicate balance between the war on terror and human rights, between the permanent borders and the limits of power. It appears that the days of the High Court of Justice as the sentry for the rights of the secular majority, a role that was its life breath for years and which afforded it the mainstream's respect and affection, are over. For decades the High Court did the work for the secular on the issue of "who is a Jew," daylight savings time and the struggle over the Sabbath. Over the years that court found partial solutions to the control of religious law over the personal status of secular individuals. It authorized alternatives to marriage at the rabbinate and Orthodox conversion, demanded that the rabbinical courts divide property between divorcing couples equally, and even ordained secular burial and tombstone inscriptions in languages other than Hebrew in religious burial society-run cemeteries.

In its staunch stance the High Court acquired its strong stature in the eyes of the secular public, which fully realized that the freedom from religion depends on the independence of the court. Thanks to this steadfastness most of the public also accepted rulings that sometimes tried to ensure equal rights for minorities. Now, from the point of view of the secular public, the High Court of Justice has done its job - and the court can go (and let the Israel Defense Forces win). What a miserable victory! The religious minority is no longer so threatening to the secular majority's way of life, the religious political parties are no longer the fulcrum between two secular blocs fighting for the parties' benevolence, and the Knesset is cutting the National Insurance Institute allotments to families with many children of its own accord. The threat of "religious coercion" has vanished from consciousness.

What is left as an arena in which the court can astound us with its independence? Petitions by Arabs, foreign workers, Jewish settlers in the territories who are evacuated from their homes. But most of the public feels no urgency about caring for minorities. It would gladly disengage from them and push them behind a fence, together with the High Court of Justice and B'Tselem. However, the political echelon must comprehend the long-term dangers that derive from a political and judiciary system that disengages from its minorities.

It can be expected of politicians that they will preserve the status of the court, even if this does not accord with their momentary preferences. It is important that the seats of justice be occupied by Supreme Court members who understand that with the death of an entire family on the Gaza shore, more and more families of suicide terrorists are born. The High Court needs justices who know that the systematic harm to the human rights of more than 3 million Palestinians saves, perhaps, the lives of 30 to 50 Israelis today, but endangers the lives of 300 to 500 people tomorrow.