The Silence of the Supreme Court

The president of the Supreme Court is satisfied with Israeli democracy and with the functioning of the rule of law in the war against terrorism. The enlightened world is talking about grave acts by Israel, such as collective punishment.

The president of the Supreme Court, Aharon Barak, is satisfied with Israeli democracy and with the functioning of the rule of law in the war against terrorism. Both the enlightened world and ever widening circles in Israel itself are talking about grave acts by Israel, such as liquidation of wanted individuals without trial, collective punishment, indiscriminate demolition of houses, the imprisonment of hundreds of thousands of people in their towns and villages, starvation and denial of medical treatment.

Nevertheless, the highest judicial authority in the land takes pride in the country's moral and judicial level, as though none of the events noted above took place. By this sweeping validation of Israel's actions, without adding one word of criticism, Barak is being derelict in his duty. He is enfeebling the moral authority that is enjoyed by him and by the institution he heads. That is very bad news for the advocates of democracy and human rights in Israel.

Speaking at a ceremony held at the Hebrew University of Jerusalem last Wednesday, Barak said that terrorists trample the law, whereas Israel, as a democratic, law-abiding state, is waging the war against terrorism according to the law. True to the traditional Israeli rhetoric, Barak drew a distinction between those who are completely good and others who are completely bad. "We are different from the terrorists," he boasted, echoing the sentiment of most Israelis.

Barak might have been expected to offer a more prescient division. For example, does killing dozens of innocent civilians as part of liquidation operations set us apart from terrorism so unequivocally? Is it not terrorism to prevent women in labor from getting to a hospital and thus to cause the death of their infants? Don't such actions give Barak pause and generate doubts in his mind? When this approach is voiced by the president of the Supreme Court rather than by a professional propagandist, it assumes greater force: Barak is legitimizing the dark side of Israel's behavior in the territories and giving it a green light.

For human rights advocates in Israel, Barak's remarks confirm what they have long suspected - that there is no longer any reliable institution in Israel to which one can turn in order to seek assistance. If the president of the Supreme Court is capable of saying that Israel is behaving properly after a year and a half in which the Israel Defense Forces engaged in liquidation and demolition, rounded up people and opened fire indiscriminately, something has obviously gone awry in Israeli democracy and in the rule of law as it is perceived in the country.

Yet, infuriating as Barak's comments were, they came as no surprise to anyone who has followed the Supreme Court's behavior in the past few months. During this period the court validated almost every wrong done by the defense establishment and systematically declined to discuss anything that smacked of a war crime.

Oddly enough, this development followed a year in which the court altered its approach to human rights under the occupation. Between September 1999 and September 2000, the High Court of Justice outlawed the use of torture by the Shin Bet security service, ordered the release of Lebanese nationals whom Israel was holding as "bargaining chips," and issued an interim order declaring that the residents of southern Mount Hebron must be permitted to return to the caves from which they were expelled by the army.

However, since the onset of the intifada the High Court's attitude underwent a sharp reversal. Now everything is permitted when there is shooting. This is a highly dangerous approach. The Association for Civil Rights in Israel has petitioned the High Court of Justice on at least three occasions against the army's practice of effectively imprisoning West Bank villagers behind checkpoints and thus rendering it impossible to give them medical aid or provide essential supplies. However, the High Court declined to consider the encirclement policy and its consequences, instead making do with the assurances of the defense establishment in regard to this or that village. Isn't the imprisonment of an entire nation the court's business? And does a state that takes such action deserve such self-praise from the president of its highest court?

On another occasion, Physicians for Human Rights wanted to inform the High Court about 150 cases in which medical treatment was denied and ambulances were attacked, but the court didn't want to deal with the matter on the grounds that these were "staged pictures" by the Palestinians. "What is happening with women in labor?" Justice Dalia Dorner, who is considered an advocate of human rights, asked in one hearing, and was told by the representative of the state that they have the option of phoning the IDF in order to get authorization to leave their village. Dorner readily accepted this groundless promise.

A petition by Physicians for Human Rights asking the court to permit speedy medical treatment for wounded individuals in Jenin who had been bleeding for hours was deferred for a few days until it became superfluous: The wounded people died. Justice Mishael Cheshin, the duty justice at the time, was in no hurry.

And of course there was the rejection of the petitions on the liquidation of wanted individuals, the court declaring that it does not customarily intervene in matters involving combat. So the court, whose president said in the past that "everything is justiciable," has suddenly become modest and asserts that it does not intervene in the critical subject of behavior in combat. Who is supposed to do it instead? The chief of staff? The defense minister? The office of the military advocate general, which has hardly carried out any investigations since the start of the current intifada? Or are these matters to be left to the International Court in The Hague?

"Precisely when the cannons are shooting, we will do all we can to ensure that our camp is above reproach," Barak promised in his speech. But in these months of crisis, the Supreme Court has not shown that this ringing statement has any basis in fact. The day will come when the judges of what was considered our beacon of justice will be asked where they were when the atrocities were perpetrated.