Israel's Supreme Court: Liberal bastion or an enforcer of injustice?

It is routinely hailed as Israel's last line of defence against ultra-nationalist legislation. But does the country's Supreme Court deserve its reputation as an upholder of liberal values?

Recent cases have illustrated how the court, rather than undermining the systematic rights abuses experienced by Palestinians, in fact oils the machine of occupation.

Earlier this month, the Knesset passed a law granting the interior minister the power to revoke the permanent residency status of Palestinians in occupied East Jerusalem if they are "disloyal" to the state of Israel. Under the law, "the state can deport anyone whose residency status is withdrawn".

The law was passed following a Supreme Court ruling last year that, on the face of it, represented a victory for four Palestinians who had had their residency rescinded for their political activities. 

Partners in oppression

While the court overturned that revocation, it also "froze the ruling for half a year to give the Knesset a chance to pass legislation that would allow the rescinding of their residency status".

In other words, the state and the Supreme Court are effectively partners in a strikingly oppressive law that flies in the face of international obligations and Palestinians’ human rights. 

Or take another example: that of the Israeli practice of withholding the bodies of Palestinians killed by Israeli forces while conducting attacks or alleged attacks, preventing families from burying their loved ones.

The record shows that, far from representing a refuge for Palestinians or even Jewish Israeli human rights advocates, the Supreme Court facilitates, rather than rolls back, abuses

Last month, the Supreme Court agreed to a request by the state to hold a further hearing on the policy, "delaying the scheduled repatriation of the bodies to their families".

The court had earlier ruled that "the state has no authority to hold the bodies of Palestinians as bargaining chips, and that it must transfer bodies to the families of the deceased for burial", as summarised by legal rights centre Adalah.

Yet some weeks later, the same court accepted the Israeli state's request to hold an additional hearing to challenge this ruling, which will take place in June – and also granted the state’s request to delay the return of the bodies until a final decision is reached.

Adalah, along with the Jerusalem Legal Aid and Human Rights Center and the Commission of Detainees and Ex-Detainees Affairs, were understandably furious, noting in a statement: "The Supreme Court rendered a decision that makes Israel’s ongoing violation of international humanitarian law possible."

‘License to torture’

The examples abound: last December, Israel's Supreme Court justices rejected a petition to save a Palestinian primary school in the occupied West Bank threatened with demolition; the school, the court said, was an illegitimate attempt "to create facts on the ground".

That same month, an even more disturbing decision was issued, when the Supreme Court rejected a petition brought on behalf of a Palestinian prisoner who had been tortured during interrogation – as, unusually, even the state itself had acknowledged.

In a ruling that saw the court take "the state's side on all of the key issues before it", the Supreme Court effectively redefined torture so as to permit it. "The definition of certain interrogation methods as 'torture' is dependent on concrete circumstances," claimed Judge Uri Shoham, "even when these are methods recognised explicitly in international law as 'torture.'"

In response, the UN's special rapporteur on torture, Nils Melzer, said: "This ruling sets a dangerous precedent, gravely undermining the universal prohibition of torture … The Supreme Court has essentially provided them [Shin Bet agents] with a judicially sanctioned 'license to torture.'"

Setting the bar low

Time and time again, the Israeli Supreme Court gives its seal of approval to legislation and state practices that violate international law and human rights conventions. The chilling, anti-democratic anti-boycott law of 2011? Upheld. Confiscation of Palestinian land in occupied East Jerusalem? Upheld.

It is, in fact, a rare occasion where the court rules against the state: data presented in May 2017 showed that the Supreme Court rejected 87 percent of the more than 9,000 petitions filed against government decisions between 1995 and 2016. 

Myths abound, however. In a typical example, an October 2017 AP report described the court as "widely seen as a guardian of the country's founding democratic principles", under "fierce pressure from political hard-liners" opposed to “what they see as the court's overreach and liberal slant".

It is true that Israel's hard-right political factions have long been unhappy with the Supreme Court. Justice Minister Ayelet Shaked recently oversaw the appointment of two new justices, in a move widely reported as giving the court a “more conservative” make-up.

But to assess the court's record based on the perceptions of pro-settler ultra-nationalists is to set the bar a little low, to say the least. Moreover, the "liberals" of the judiciary and their right-wing foes have more in common than either would care to admit.

Occasional victories

Last week, a Knesset committee advanced the final version of a "Jewish nation state" bill that, according to Haaretz, is intended to lay the groundwork for the Supreme Court "to give preference to Israel’s Jewish character over its democratic values should the two conflict in the courts".

Except that is something the Supreme Court already can do, and has done, interpreting a key clause in Basic Law: Human Dignity and Liberty in such a way as to give "significant weight to the nature of Israel as a Jewish state and its goals, at the expense of … fundamental rights".

Thus, the record shows that, far from representing a refuge for Palestinians or even Jewish Israeli human rights advocates, the Supreme Court facilitates, rather than rolls back, abuses. Occasional victories are exactly that; the court is a core part of, and reinforces, the discriminatory status quo.

- Ben White is the author of Israeli Apartheid: A Beginner's Guide and Palestinians in Israel: Segregation, Discrimination and Democracy. He is a writer for Middle East Monitor and his articles have been published by Al Jazeera, al-Araby, Huffington Post, the Electronic Intifada, the Guardian's Comment is Free and more.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.

Photo: Israeli security force hold their position amid protests over Israel’s refusal to return the bodies of slain Palestinian attackers or alleged attackers in the occupied West Bank town of Bethlehem on 26 January 2017 (AFP)