How has Israel’s Supreme Court defended the occupation?

Presented as a pillar of the country’s democracy, Israel’s Supreme Court has upheld many policies of the occupation.

Israeli Bedouin residents of Um al-Hiran village protest
Palestinians across Israel and the occupied territories have protested against dozens of policies protected by Israel's Supreme Court [EPA]

Beit Jala, occupied West Bank – In a move that has become all too familiar for Palestinians living under Israeli occupation, the Israeli Supreme Court (ISC) has decided to allow the obstruction of Palestinian access to their lands as a result of the infamous separation wall.

The wall will cut directly through lands belonging to the Christian families of Beit Jala. Upwards of 58 families will be unable to step foot on their land, 300 hectares of which will suddenly be on the other side of the wall.

Issa Shatleh, a 43-year-old father of three whose land and olive trees were confiscated and destroyed, told Al Jazeera that he has “no hope for justice in [Israeli] courts”.

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In April, the ISC decided that the route “greatly harms and violates the rights of both the local community and the Monasteries”, a press release by the Society of Saint Yves Catholic Centre for Human Rights said.

Three weeks later, the Beit Jala municipality and its residents were informed by the Israeli defence ministry that construction would continue on the previous route, with a 200m opening so the Salesian monastery and convent would remain connected.

After another petition to further halt construction, the ISC sided with the defence ministry, paving the wall’s route.

For years, the ISC has been presented by pro-Israel spokespersons as a pillar of the country’s “democracy”, but recent decisions have given pause even to the court’s most ardent supporters.

Mordechai Kremnitzer, vice president of research at the Israel Democracy Institute (IDI), an independent, non-partisan “think and do tank” dedicated to strengthening the foundations of Israel’s supposed democracy, is one such man.

“In the last three years, we could see some change … the court becoming more conservative, and less considerate of human rights law,” he told Al Jazeera, going on to cite controversial laws upheld by ISC.

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These include the ‘Anti-Boycott Law’  that makes it a civil offence for anyone to advocate boycotting Israeli or settlement products, institutions, or individuals, and could be considered a violation of Article 19 of the International Human Rights Declaration that guarantees freedom of expression.

Another is the ‘Admittance Committees Law’ , which allows for committees in new Jewish-Israeli communities to deny residence to Palestinian citizens of Israel based on the criteria of “social suitability” and the “cultural fabric” of the town, a violation of the first article of the United Nations Charter which promotes freedom ” without distinction as to race, sex, language, or religion”.

Israel has no written constitution, but a series of “basic laws”, so any case that is not resolved by lower courts can be tried at the top of Israel’s judicial pyramid. As such, the court hears many cases with “no special legislative importance”, Kremnitzer said.

In 2012, 9,492 new files were opened in the ISC and 9,847 were closed, according to Court’s administration data provided by IDI. In contrast, the United States Supreme Court presides over approximately 150 cases annually.

IDI advocates for an appellate court to ease the burden. The idea has met with resistance, and Kremnitzer suspects there may be political motivations behind the lack of an appellate court: “It seems current politicians want a submissive court. They want a court so busy it can’t breathe.”

More critical voices say that the ISC doesn’t deserve the democratic, humanitarian credit it is often afforded.

Richard Falk, the former United Nations Special Rapporteur for Human Rights in the Occupied Territories and professor emeritus of international law at Princeton University, told Al Jazeera that international law and the rights of Palestinians have never been a serious concern. He says the court plays a “cosmetic role in relation to fundamental issues”.

Falk believes the rulings of the court historically allowed Zionism to present “a liberal face for the world to see, but were responsible for the cruel and disastrous dispossession of the Palestinian people”.

From the 1948 establishment of present-day Israel to 1966, Palestinians with Israeli citizenship were subjected to a repressive “military government” separate from the mainstream political sphere. This occurred as Israel and its Western allies promoted its reputation worldwide as “the only democracy” in the Middle East.

Historically, the ISC has maintained Israel's interests in demographics and control of land… the things Israel requires to continue as a Jewish state.

Sawsan Zaher, Adalah human rights lawyer

Now, after years of rightward drift in Israeli politics, the court has done away with the visage of liberal Zionism, and moved towards openly and ethically “less-sensitive Zionism”, according to Falk.

In reference to Beit Jala’s case, Falk said the justices have upheld the “legality of the wall, but objected to certain segments, freeing Israel from an obligation to follow [international humanitarian law]” through their duplicitous rulings.

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Sawsan Zaher, a human rights lawyer for Adalah , the Legal Center for Arab Minority Rights in Israel, says that another glaring disavowal of international law is the fact that “not a single [Palestinian from Gaza] has been allowed to enter Israel to go to court for cases of civil compensation against Israeli officials for losses inflicted” during last year’s Operation Protective Edge , Israel’s third and most deadly offensive on Gaza since 2008.

The ISC rejected a petition in 2014 that aimed to allow Palestinians from Gaza to enter Israel in order to stand in court, even though “international humanitarian law creates the right for effective remedy through access to courts”, Zaher added.

Zaher, who says her entire career consists of cases heard by the ISC, says that she “doesn’t agree” with the notion that the institution was ever a pillar of democracy: “Historically, the ISC has maintained Israel’s interests in demographics and control of land … the things Israel requires to continue as a Jewish state,” adding that wins in cases challenging either of those aspects are rarely, if ever, won by Palestinians.


The increasing trend of human rights petitions rejected by the ISC, such as the latest challenge to the wall’s route near Beit Jala, have left Zaher discouraged.

“If before, we had any hope that the ISC would provide us with a solution to the issues affecting [Palestinians], the past few years have taken that hope away.”

Back at the protest in Beit Jala, Issa Shatleh expressed the same dejected sentiment. “We can do nothing legally. The one thing we can do is protest, breathe tear gas, and hope it brings [international attention]. But we aren’t sure about that.”

Follow Creede Newton on Twitter: @creedenewton

Source: Al Jazeera