Western pundits believe in the myth that Israel has a normal rule of law: the current government is seen as an aberration, and once Netanyahu is gone, Israel will return to its old self. Take, for example, Thomas L. Friedman in the New York Times. He says Joe Biden needs to urge Israel to get back on track, because the current administration wants to take the wrong measures:
“The most pressing crisis is this: Israel’s courts, led by its Supreme Court, have largely been ferocious protectors of human rights, and particularly the rights of minorities. … because Israel’s Supreme Court reviews the actions of all executive branches, including the military, it has often protected the rights of Palestinians, including providing protection from abuses by Israeli settlers and illegal expropriation of their private property.
But this Netanyahu government seeks to radically alter the situation in the West Bank, effectively annexing it without officially declaring to do so. And the plan has just one big obstacle: Israel’s Supreme Court and legal institutions.
The judicial overhaul that Netanyahu intends to ram through the Knesset would ‘grant the government total control over the appointment of judges, including to the high court,’ replacing a much less partisan and professional judicial appointment process. The overhaul would also severely limit ‘the high court’s ability to strike down legislation’ — especially legislation that might curb the rights of Israel’s minorities — ‘and enable the Knesset,’ now controlled by Netanyahu, ‘to re-legislate’ laws that the court strikes down…In short, Israel’s executive branch would assume control of its judiciary. This is right out of the Turkey-Hungary majoritarian playbook…”
Recently, Karim Khan, the chief prosecutor of the International Criminal Court (ICC), asked the judges to issue arrest warrants for the leaders of Hamas and Israel. Israel supporters claimed that Israel has a robust legal system that would prosecute the government if it committed war crimes. Thus, the fact that it does not prosecute such crimes proves that they do not occur. For instance, Ayaan Hirsi Ali wrote:
“The Israeli Supreme Court is regarded by Jurists the world over as the leading example of judicial activism and the overextension of judicial review. In 2019 they indicted the sitting prime minister, with the trial continuing to this day, and in January of this year the Israeli Supreme Court managed to strike down legislation designed to curb its powers. If there is any criticism to be levelled at the Israeli legal system it is not that the courts are unable or unwilling to haul members of the government before them, but rather that they are too readily able to do so.”
I will show below that they are ill-informed, based on the book “The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories,” by David Kretzmer and Yaël Ronen, two leading Israeli legal scholars. But first we need to know two things: how international law is made and how it is applied in national courts.
Treaties and custom
Countries make international law primarily in two ways: conduct and treaties. Treaties are like contracts: countries have immediate rights and obligations as soon as they sign treaties.
The behaviour of most countries, if repeated consistently, leads to binding rules, to the so-called ‘customary law’, provided that the countries are convinced that their behaviour is mandatory.
Monistic and dualistic countries
All countries are obliged to respect international law, and international law takes precedence over national law. However, the countries deal with international law in two ways:
In monistic countries, international law operates directly in national law, and the judges may decide on the basis of that law (not unrestricted). For instance, Dutch women successfully challenged the Dutch political party SGP in court, leading to a 2012 Supreme Court ruling that required the party to allow female candidates. The women invoked the Women’s Rights Convention.
Dualistic countries first pass laws, in harmony with international law, and the judges are allowed to apply only these laws.
Israel has a semi-dualistic system. Shortly after independence, the Israeli Supreme Court (henceforth the Court) adopted British common law. In common law, customary international law is part of national law, but treaties are not. And this gives the Court the opportunity to cheat because a treaty is extremely important to the Palestinians and because customary law is more difficult to determine.
The Fourth Geneva Convention of 1949 (GCIV)
GCIV is a treaty intended to protect civilians during war and occupation. Article 49 of this treaty is perhaps the most important in the debate on the Israeli occupation. Two paragraphs of this article are crucial: 1 and 6. (These are abbreviated as GCIV 49(1) and GCIV 49(6)).
Paragraph 1 prohibits the deportation of people under occupation, including within occupied territory. Paragraph 6 says: “The Occupying Power shall not deport or transfer part of its own civilian population to the territory it occupies.” Therefore, Israeli settlements are illegal.
The Palestinians and Israeli human rights organizations often argue before the Supreme Court that deportations and settlements are illegal because they violate Article 49. But the Court refuses to rule on the matter: after all, the Court can only apply customary law and not treaties. So, about the most important treaty, which can stop Israeli colonization and expulsions, the Court says it is not allowed to say anything about it.
But, while the Court does not make decisions on the basis of GCIV, the Court sometimes comments on them, as an aside. The Court roughly says, “We are not allowed to apply GCIV, but even if we were allowed to, the Israeli government would still be right.” For example, the Court says that paragraph 1 was conceived as a result of the Nazi crimes during WWII. Paragraph 1 is supposed to be against persecutions, such as the German deportations of Jews, not against the expulsion of 1,000 Palestinians from Masafer Yatta to build an army camp.
On paragraph 6, which prohibits colonizations, the Court refuses to say whether the transfer of its own population to the occupied territories is legal, even if the Israeli government explicitly asks for confirmation that it is legal.
The Court cheats
There is a broad international consensus on the interpretation of Article 49. No country interprets the article like Israel. The International Court of Justice ruled in its 2004 advisory opinion that Article 49 applies and therefore the settlements are illegal. The Red Cross interprets it in the same way and so do all the countries that have signed the Geneva Convention. The Security Council, the General Assembly, all other UN bodies and all NGOs interpret Article 49 differently from Israel. The same is true of the most eminent jurists, including the Israeli.
In fact, in a legal opinion on behalf of Israeli Advocate General Meir Shamgar, it was stated that according to GCIV, one should not expel civilians in order to create training grounds for the Army (IDF):
“The civilian population may not be evicted from territories in order to create training areas for the IDF, both for political and humanitarian reasons and for reasons that violate international law. Article 49 of the Convention on the Protection of Civilian Persons by War, to which Israel is a party, expressly prohibits the forcible transfer of civilians in occupied territory, except where immediate combat needs require it. In our case, it cannot be said that combat needs necessitate the evacuation of the areas intended to be training areas, and therefore the forcible evacuation of the population from these areas would constitute a violation of the provisions of the aforementioned Convention.”
So, Meir Shamgar knew very well that he was cheating when he later became the president of the Supreme Court. Kretzmer and Ronen say: “In interpreting GC IV Article 49(1) the Court bent over backwards in order to justify a measure which that provision clearly prohibits.”
So the Israeli Supreme Court refuses to rule on the legality of the entire settlement policy and in its comments the Court distorts the Geneva Convention.
And what about customary law?
Wait a minute, say the Palestinians and Israeli NGOs, but the Court is allowed to rule on the basis of customary law, even if the Court is not allowed to say anything about GCIV. And Article 49 is already part of the customary law. After all, customary law is the behavior of most countries and all countries have signed GCIV. And all countries interpret Article 49 in the normal way. So even under customary law, it is forbidden to expel Palestinians and build settlements in occupied territory.
The Supreme Court is also cheating here, saying that Article 49 has not yet become part of the customary law. The Court is lying because Article 49 has become customary law. See also “The Geneva Conventions as Customary Law,” by Theodor Meron, Israel’s legal adviser when Israel occupied the West Bank and the Golan in 1967.
It is not for nothing that Kretzmer and Ronen conclude: “In its decisions relating to the Occupied Territories, the Supreme Court has legitimised virtually all controversial policies and practices of the Israeli authorities, including those that are incompatible with international law.”
Exceptions
The court also sometimes protects the Palestinians, but only in extreme cases, when Israel is very aggressive. For example, the Court has decided that settlements built for political or ideological reasons are illegal. In fact, Judge Landau said, occupation is by definition temporary and no army is allowed to build settlements of a permanent nature. But this was a court case where the government itself granted land to the settlers and claimed before the court that it fits into Zionist ideology to build settlements. And the Court then caught the government lying: they lied that the army had confiscated private land for military purposes. (Up to that point, Israel had freely expropriated Palestinians on the pretext of “security.”)
Moreover, the settlers had joined the lawsuit as a party and they said that God gave them the West Bank, thus ideology. And the settlers revealed that the government promised them that land. Moreover, there were three important ministers against this settlement.
Other excuses
But even if the Court rules in favor of the Palestinians, they will still lose their land. For example, the Israeli army has sold private land belonging to Palestinians to settlers. The court decided that the government should compensate the Palestinians and allow the settlement to remain. In the long run, this also leads to a larger territory for Israel, with as few Palestinians as possible.
When the Israeli government loses a case, it does not give up and successfully invents other excuses in similar cases. For example, building public infrastructure, such as roads for the settlers. Here the Court swallows a fallacy: according to international law, the occupying power must take good care of the population under occupation. According to the Court, the settlers were also under occupation, so the occupying forces had to take good care of them as well. Thus, confiscating private Palestinian land for the needs of the settlers is what international law requires, according to the Court. If there is a factory in a settlement, the Court rules that the factory is good for the Palestinians so the settlement can remain.
Or take the proposition that Israel builds settlements for security because settlers are the eyes and ears of the army in a case of war. Or the fallacy that if there are settlers, then the terrorists have a harder time moving among the local population. Or the fallacy that the settlers in an illegal settlement would use force if they were evicted and therefore it is “a legitimate security interest” to leave them there. Or the fallacy that the occupation (according to international law) is by definition temporary and therefore the settlements are not forbidden because they are also temporary.
No matter what absurdities the Israeli government comes up with, the Court is okay with all of them, as long as the fallacies are not as egregious as the aforementioned exception.
And if the absurdities cross all rational boundaries, the Court says that the military knows best what is good for security, so the judges can’t say anything about that.
In addition, the Court accepts cases about individual settlements, but refuses court cases about the colonization project as a whole. Because, says the Court, this is a political issue and should not be decided by judges. So, Friedman’s assertion that the Court will thwart annexations is nonsense.
General knowledge
But you don’t have to read Kretzmer and Ronen to know that Friedman is talking nonsense. He says the Supreme Court is a “major obstacle” to annexations. Did the Court stop the annexation of East Jerusalem or the Golan Heights? He says the court protects the Palestinians from “illegal expropriations.” However, Israel has expropriated nearly one-third of East Jerusalem and more than one-third of the land in the occupied territories. Illegally. So apparently the Supreme Court is not the “ferocious protector” of Palestinians, as the Western pundits would have us believe. To conclude with Kretzmer and Ronen:
“In many circles the Court is perceived as an ultra-liberal institution that has taken an antisettler and pro-Palestinian position in cases relating to the Occupied Territories. …This perception is a perversion of reality… [I]n practice the most problematic policies and practices in the Occupied Territories have received explicit or implicit judicial approval. These include establishment of Israeli settlements, taking control and making use of public land so as to serve the interests of the occupying power rather than the public in the Occupied Territories, land-use planning, changes in the local law to serve Israeli interests, deportations, and punitive house demolitions.”
In fact, Kretzmer and Ronen write that the judges do take into account possible prosecutions of Israeli officials at the ICC. They even say that the judges of the Supreme Court would be complicit in war crimes:
“This possible influence of potential ICC jurisdiction on the Court is pertinent especially with regard to policies and practices that have been previously upheld by the Court as lawful, but may constitute international crimes, namely deportations and, in some circumstances, punitive house demolitions. Having allowed hundreds of house demolitions over the years without adequately addressing their legality under international law, the Court created a situation in which it does not regard reconsideration of its jurisprudence on the issue as an available option. Were it now to declare punitive house demolitions unlawful under international law, the Court might facilitate indictment by the ICC of officials or military officers who ordered or implemented these demolitions. Moreover, it might implicate the judges who had previously upheld demolition orders. The same problem arises with regard to the settlement project, with the difference that since the Court has not directly upheld the establishment of settlements as lawful, the judges themselves would be less vulnerable to potential criminal charges.”
Thus, the Supreme Court judges not only do not prosecute Israeli war crimes, but they also enable them.
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