Courting apartheid: how Israel’s top judges rubber-stamp discrimination

Israel’s Supreme Court has long been held up as a resolute defender of liberal values. Recent decisions handed down by its judges, however, provide an important opportunity to revisit this claim, and to interrogate its past and present validity.

According to Israel’s Ministry of Foreign Affairs, the Supreme Court “upholds the rule of law and strengthens human rights.” (A note on terminology. Israel’s Supreme Court also sits as the High Court of Justice (HCJ) for constitutional matters and citizens’ petitions against government entities.)

This narrative is often reproduced by Israel’s defenders. In March 2012, for example, Time magazine’s Joe Klein hailed the Court as “one of the world’s great bastions of civilized legal contemplation” and “a precious monument to the rule of law.”

Others have argued that the courts in Israel are a check on racist legislation. Richard Goldstone, in his 2011 ‘apartheid slander‘ op-ed, claimed that in Israel, “equal rights are the law” and “inequities are often successfully challenged in court.” Israel lobby group BICOMtrumpets “the effectiveness of the Israeli Courts in countering incidents of unfair discrimination when they do arise.”

The role of the Court in Israel’s public diplomacy is clear – and not just in the crass boast that the court includes an Arab judge (the only one from 66 past and present justices). At the UN Human Rights Committee last October, a senior Israeli official “proudly recounted” rulings by the Supreme Court in striking down amendments to the Prevention of Infiltration Law.

According to an article in Ha’aretz, this was an example of “using High Court rulings to demonstrate Israel’s commitment to human rights” even as the government “flouts them.” While true, there are good grounds for questioning the Court’s own ‘commitment’ to human rights.

A black week

The most high-profile recent decision was the upholding of the Anti-Boycott Law passed in 2011. The law was a “direct response to the Palestinian-led Boycott, Divestment and Sanctions campaign”, and its impact has been a “chilling effect” and “stifling” of “political debate.”

Sitting as the HCJ, the judges rejected most of the petition filed by human rights groups, and left the legislation almost entirely intact. Boycotts were described in the ruling as “political terror.”

The Court voted 9-0 “on the authority of the finance minister to impose fines or withhold funding from Israeli NGOs calling for boycotts of businesses in all or parts of Israel”, and 8-1 on “the ability to file lawsuits against those NGOs.”

While striking down by 9-0 the part of the law allowing punitive damages in lawsuits, the justices also voted 5-4 to allow such lawsuits “even if they were against groups that called only for boycotts of post-1967 Israel, meaning of Israeli settlements in the West Bank.”

Responding to the verdict, Ma’ayan Dak of the Coalition of Women for Peace, a group that used to call for boycott and divestment before the law, slammed the Supreme Court for having “approved the silencing and the restriction of legitimate protest to criticize and act to change Israeli policy.”

Then, just one day after the Court had upheld the anti-boycott legislation, its justices also backed the confiscation of Palestinian land in East Jerusalem using legislation passed in 1950 to appropriate the assets of expelled refugees.

The Absentee Property Law was the main instrument used to transfer land from ethnically cleansed Palestinians to the new State of Israel. It declared land to be ‘abandoned’ if its owner was absent for even just one day from November 1947 – but excluded Jewish Israelis from its provisions.

After 1967, and the unilateral, illegal expansion of Jerusalem’s borders, Palestinians whose land now lay in the city were suddenly categorised as ‘absentees’, even if they only lived a few hundred metres away, the other side of the new municipal boundary.

As Adalah explained, by its decision the Supreme Court “affirmed the applicability of the [Absentee Property] law to East Jerusalem, approving all past expropriations and giving the green light for further expropriations in the future.”

The group’s general director Hassan Jabareen slammed the Court for having “validated one of Israel’s most racist and arbitrary laws, enacted in 1950 primarily to confiscate Palestinian refugee property after their displacement from their homes.”

There is no other place in the world, not in democratic systems nor in dictatorial regimes, where such a law applies. Despite these realities…the Supreme Court gave the green light for the application of arbitrary codes on occupied land and its population, with no regard to their protections under international law.

Finally, also last week, the Supreme Court – again sitting as the HCJ – rejected a petition on the right to higher education of Palestinian political prisoners held in Israeli prisons. The ban was imposed by the Israeli government in 2011 as a punitive measure to pressure Hamas to release Gilad Shalit.

In its final judgment, the Supreme Court stated that, in the words of Adalah, “the prevention of university education does not constitute unacceptable discrimination between security and criminal prisoners”, and the seven-judge panel “rejected the petition without further explanation.”

Attorney Abeer Baker said the decision “establishes a special regime in the prison that allows arbitrary and abusive practices against Palestinian prisoners because they are Palestinians.”

A troubled history

While certainly disturbing, these three rulings are not unprecedented. There are many examples of where the Supreme Court has given its seal of approval to laws and policies that form part of Israel’s regime of settler-colonial dispossession and discrimination. Here are eight examples.

i. Denying the right of Palestinian citizens to the lands confiscated from them.

In 2003, the Court rejected a petition by Palestinian former residents of Iqrit, who sought to return to the lands from which they had been expelled in 1948. After the villagers were forced out on a ‘temporary’ basis, the army blew up their houses, and the land was leased to Jewish communities.

‘Present absentees’ – those Palestinians forcibly displaced within what became Israel – make up around 1 in 4 of all Palestinian citizens in Israel. In its ruling, the Court accepted the state’s argument for preventing Iqrit’s residents from returning.

The government claimed that “accepting the petition would have far-reaching and strategic implications that would harm Israel’s vital interests, because 200,000 other displaced citizens have also demanded they be allowed to return to their former villages.”

ii. Affirming that ‘Israeli nationality’ does not exist, in the context of a ‘Jewish state’.

In October 2013, the Supreme Court rejected a legal challenge brought by petitioners who wished to change their nationality on the population registry from ‘Jewish’ to ‘Israeli’. In “denying the existence of an Israeli nationality distinct from a Jewish one”, the decision echoed a similar case brought before the Court in the 1970s.

The historic ruling, which the justice considered as “still applying to the subject of the appeal”, stated that “there is no Israeli nation separation from the Jewish nation.” The then-president of the Supreme Court Shimon Agranat said that an Israeli nationality “would negate the very foundation upon which the State of Israel was formed” – in other words, as a Jewish state.

According to Israeli legal scholar David Kretzmer, this concept of “nation” helps maintain “the distinction between citizens of the state who belong to the Jewish people and those who do not”, and also “strengthens the dichotomy between the state as the political framework for all its citizens and the state as the particularistic nation-state of the Jewish people.”

iii. Supporting punitive home demolitions in the occupied Palestinian territory (oPt).

In August 2014, the Court rejected an appeal by a human rights NGO against the punitive demolitions of three Palestinian houses in the West Bank. According to B’Tselem, the justices’ ruling was not surprising, since the HCJ “has denied the vast majority of the petitions filed against punitive house demolitions and consistently refused to recognize the unlawfulness of this practice.”

Again, on 31 December 2014, the HCJ rejected a petition filed by eight human rights groupsagainst punitive house demolitions. Acknowledging “serious moral dilemmas”, the judges nonetheless refused to re-examine previous decisions on the matter – including the Court’s long-standing view that “the law of the land…trumps international law.”

The judges also rejected claims of discrimination, saying that the reason why Section 119 of the emergency defense regulations – through which punitive demolitions are carried out – “is not utilized against Jews is rooted in the fact that there is no need for the same amount of deterrence among the Jewish population.”

iv. Supporting the transfer of Palestinian prisoners out of occupied territory.

In 2010, the Supreme Court (as the HCJ) published a ruling “rejecting a petition to order the State to refrain from holding Palestinian prisoners and detainees in facilities located in Israeli territory within the Green Line”, a “violation of the non-deportation provisions of the Fourth Geneva Convention.”

Instructively, in making its decision, the Court upheld a 1988 ruling which stated that “in the event of a conflict between national law and international law – in this case, Article 6 of the Regulations versus Article 49 of the Fourth Geneva Convention (which prohibits the removal of protected persons from the occupied territory) – national law prevails.”

In other words, and this is just one example of course, Israel’s Supreme Court “is quite prepared to uphold grave breaches of the Fourth Geneva Convention amounting to war crimes (in the case of transfer and detention inside Israel).”

v. Suppressing dissent through the Nakba Law.

In January 2012, the HCJ rejected a petition against the Nakba Law, which “fines bodies who openly reject Israel as a Jewish state or mark the Israel’s Independence Day as a day of mourning.” The justices avoided making a definitive decision on the constitutionality of the law by claiming that it was too early to assess the impact of the implementation of the legislation.

According to Adalah and the Association for Civil Rights in Israel, the Supreme Court chose to ignore the fact that the passage of the law already harmed, in practice, “both the freedom of expression and the civil rights of Arab citizens.”

vi. Supporting the separation of Palestinian spouses to prevent “national suicide.”

In 2012, the Court upheld the notorious Citizenship and Entry into Israel Law, which denies status in Israel to Palestinian spouses of Israeli citizens, separating Palestinian husbands and wives when one has Israeli citizenship and one is from the oPt. In the majority opinion, Justice Asher Grunis wrote that “human rights are not a prescription for national suicide.”

The 6-5 decision was greeted with dismay by human rights groups: the Association for Civil Rights in Israel called it a “dark day for the protection of human rights”, and said that the Court had “stamped its approval on a racist law, one that will harm the very texture of the lives of families whose only sin is the Palestinian blood that runs in their veins.”

vii. Upholding residential ‘admission committees’ that discriminate against Palestinian citizens.

In September 2014, the HCJ upheld a law through which hundreds of Israeli communities screen and exclude potential residents on the grounds of “social suitability” and the communities’ “social and cultural fabric.” The Admission Committees Law was passed by the Knesset in 2011, though these bodies had in fact been operating for some time.

In the words of Adalah, “the court’s decision effectively legalizes the principle of segregation in housing between Arab and Jewish citizens, and permits the practice of racism against Arab citizens in about 434 communities, or 43% of all towns in Israel.”

It was yet another case of the judiciary allowing the government to further deepen racial inequality, by “choosing not to set precedents on critical cases affecting Palestinian rights.”

viii. Giving a green light to the exploitation of natural resources in the oPt.

In 2011, the Court rejected a petition asking for a halt to the work of eight, Israeli-owned quarries operating in the West Bank, on the basis that they “take away valuable resources from the Palestinian people and from a future Palestinian state.”

As B’Tselem put it, “the resources of an occupied territory are supposed to be used to benefit the local population”, and thus the justices’ decision “completely contradicts international law.”

A further blow to Israel’s reputation

Such examples abound. Israel’s enlightened Supreme Court has backed the government’s separation policy preventing Palestinians moving between the West Bank and Gaza Strip, rejected a petition against the decision to upgrade Ariel settlement’s college into a full-fledged university, and turned down a petition against Jewish settlers taking over Palestinian lands in the southern Hebron Hills.

As Israeli journalist and activist Haggai Matar put it, it was the Supreme Court that “legitimized the very existence of the settlements, the regime that props them up and the separation wall – all in violation of international law, as agreed upon by jurists around the world.”

The Supreme Court, rather than being “a venue to challenge the occupation”, has in fact “institutionalized it.” Furthermore, the justices have left Israel’s legal infrastructure of ethnocracy intact. Even former president Aharon Barak, loathed by the far-right,acknowledged Israel is “different from other countries” – “It is not only a democratic State, but also a Jewish State.”

On the political level, election results demonstrate that the majority of the Jewish Israeli public is content voting for right-wing and far-right parties, and does not view the occupation of the West Bank and Gaza Strip as an urgent issue to be resolved. Change is not coming via the ballot box.

On the level of popular mobilisation, there is no mass movement against the apartheid status quo. Indeed, on the contrary, as one Ha’aretzcolumnist put it, “military rule… is the largest, most visible project, with broader participation than any other endeavour in Israel.”

95 percent of Israeli Jews saw “Operation Protective Edge” as justified. Annual protests against Israel’s military occupation by “the tiny Israeli left” attract small crowds – and the head of Peace Now is proudly doing his reserve army duty protecting West Bank settlements.

In November 2011, a Ha’aretz editorial called the Supreme Court “the most significant force for the preservation of Israel’s reputation in the world.” Now, with that reputation continuing to plummet, even the Court stands exposed for what it is: an entity that endorses core elements of Israel’s military occupation and institutionalised racism.

Western observers should not be misled by the Israeli far-right’s attacks: the Supreme Court is no check on international law violations and systematic discrimination. On the political, popular and judicial levels in Israel, support for Palestinian rights is marginalised or non-existent. Without external pressure, change from within is impossible.

Published first by Middle East Monitor.