Akiva Eldar | Ha’aretz
13 October 2009
So what if the Supreme Court rules? In Israel those decisions are just recommendations, especially if they deal with Palestinian land. In most enlightened democratic countries, saying that decisions of the courts obligate the state authorities is like stating that the sun rises in the east. But that may not be so for Israel.
Last week, Supreme Court President Dorit Beinisch had to state that “rulings of this court are not mere recommendations, and the state is obliged to abide by them and to execute them with the necessary speed and efficiency, according to the circumstances of the matter.”
The head of the judicial system added: “In the case before us, the state took the law into its own hands.”
The case dates back to June 2006. The High Court of Justice at that time responded to a petition from Hamoked – the Center for the Defense of the Individual, and instructed the Defense Ministry to move the route of the separation fence near the villages of Azzun and Nabi Ilyas in the northern West Bank.
Aharon Barak, who was then president of the Supreme Court, stated in the ruling that “the petition points to an event that cannot be tolerated according to which the information that was supplied to the court did not reflect all of the considerations that were taken into account by the decision makers.”
He was referring to the fact that the Defense Ministry did not reveal to the court that the route of the fence was congruent with the map of the plan to expand the settlement of Tzufim at the expense of Palestinian lands. The prosecution promised that the fence would be dismantled within six months from the completion of the fence along the new route.
It can be assumed that the officials of the Defense Ministry understood that when the court ordered that the injustice toward the residents of the Palestinian villages be corrected “in the shortest time possible” it was not referring to three and a half years.
In any case, from Beinisch’s remarks about a ruling she handed down during a process of contempt of court, it was evident that this was not her interpretation of Barak’s ruling.
“It is not possible to put up with conduct of this kind,” she scolded the representatives of the prosecution and she ordered the state to pay the petitioners’ court costs of NIS 20,000. This sum was added to another NIS 50,000 which the taxpayers paid when the original ruling was handed down as well as the salaries of the lawyers from the prosecution who were sent to defend against the contempt of court ruling.
Before closing the case, Beinisch stated that in countries where there is a rule of law, a political and public storm would have arisen over this.
“In this case before us, the state took the law into its own hands,” she said.
And this is not the only case where the Defense Ministry has made a mockery of court decisions relating to the route of the fence. More than two years ago, the court ordered the state to consider an alternative to the fence’s route that was robbing the village of Bil’in of lands in favor of the settlement of Modi’in Ilit, and to do so “within a reasonable period of time.”
In the ruling that was handed down after 15 months, Beinisch wrote that the alternative that was chosen was not in accordance with the court decision and she ordered the state to abide by it “without further delay.”
Since then 10 months have elapsed, the residents of the village and their supporters have demonstrated, the police have used tear gas, and the fence is still in place.
Maskit Handel of the Association of Civil Rights In Israel recently documented no fewer than eight cases where the state was, or still is, in contempt of rulings handed down by the High Court of Justice since 2006. Among other things, she found two decisions relating to the fortification of schools in communities along the border with the Gaza Strip, three decisions instructing the state to build 245 classrooms in East Jerusalem, and a decision to stop making the granting of work permits for migrant workers dependent on their working for a single employer.
Enlightened rule
An affidavit submitted to the High Court of Justice a few weeks ago (in response to a petition) by the Defense Minister’s adviser on settlement affairs, Eitan Broshi, indicates that from Ehud Barak’s point of view, anything relating to Palestinian rights, and not only the high court’s rulings, are nothing more than a recommendation.
The affidavit states that the defense minister has decided, for the time being, to refrain from carrying out demolition orders against nine homes in Ofra that were built on private Palestinian land. The explanation no doubt convinced the Palestinians who lost their lands that they are living under an enlightened rule of occupation.
“There is no point in separating this individual case or any other without seeing the general picture and the system of circumstances under which the respondents are acting,” the affidavit stated.
And what is the general picture? Two dozen outposts and numerous illegal homes? And what does the phrase “the system of circumstances” mean? Fear of the settlers?
Daniel Ben Simon, the faction chairman of Barak’s party, Labor, declared during a tour of the outposts organized by Peace Now at the end of August, that if they are not vacated by the start of the winter session of the Knesset, “the Labor party will reconsider its continued membership of the government.”
No special excitement could be seen among the factions on the right when the winter session opened Monday. However informed sources promise that this time they are serious. The sources reveal that in return for the pass the prime minister received with regard to freezing settlement construction, the defense minister has promised the Americans that there will be a speedy evacuation of the outposts, and he has even shown them the schedule.