The war in Gaza continues, and for the first time in the history of Israel’s wars in many decades, the High Court of Justice is not in the picture, not even in appearance.
The few petitions submitted by human rights organisations were also rejected: a petition demanding the cancellation of a temporary order allowing the worsening of overcrowding in prisons in view of the fast increase in the number of Palestinian detainees; a petition regarding the whereabouts of detainees from Gaza and a petition regarding the evacuation of Al Quds Hospital; The High Court of Justice even rejected petitions to allow demonstrations against the war in Arab cities. Only one petition regarding a protest in Tel Aviv succeeded but not thanks to the judges – the police retracted its refusal to allow the protest without a ruling.
In their dismissal decisions, the judges mainly emphasised that this was a unique emergency situation for Israel. Journalist Avishai Greenzeig rightly published an article in the Israeli newspaper Globes with the title “The political, military and legal echelons managed to join hands in the war”.
Minister of Justice Yariv Levin unintentionally helped the High Court of Justice to emphasise to the Israeli public its patriotism, non-interference in the conduct of the war in Gaza and in security matters in general.
This happened when Minister Levin falsely claimed in an interview on the right wing Channel 14 that the judges of the Court “tied our hands in ability to fight” when they determined that “it was impossible to shoot anyone approaching the fence”, as he tried to accuse the judges of being responsible for the massacres and kidnappings committed by Hamas on October 7.
The spokesperson for the courts responded that “in 2018, following violent events that took place near the perimeter fence on the border of the Gaza Strip, a petition was submitted to the High Court of Justice in which it was claimed that the IDF’s rules of engagement, which includes live fire in some cases, is illegal. The petition was rejected unanimously.
The Court noted in the ruling that the scope of its intervention in issues of this kind is limited and extremely narrow, and in any case, there is no basis for the claim that the rules of engagement were changed due to the High Court of Justice’s ruling.”
From the response of the spokesperson of the courts it may be implied that the judges of the High Court of Justice approved the content of IDF’s rules of engagement, but the truth is that the they did not even read at the confidential rules and the additional confidential material since the petitioners objected to this (this is stated in section 25 of the ruling).
Contrary to the claims of Minister Levin and other supporters in Israel of reducing the powers of the High Court of Justice, in terms of real protection of the human rights of the Palestinians of the West Bank and Gaza Strip, the court has never really been an address, and except in rare cases its judges have generally refrained from interfering in the decisions of the security establishment and the government. On the other hand, from the point of view of the State of Israel, it seems that the court did serve as an effective fig leaf.
A telegram dated January 25, 1993, sent by an Israeli envoy in London, Gideon Meir, to the deputy director of the European region at the Ministry of Foreign Affairs in Israel, reveals how the fig leaf of the High Court of Justice worked in practice.
Meir informed that he met with the director of the Middle East region at the British Foreign Office, and that the Americans and the British are acting on Israel’s request to postpone a discussion in the UN Security Council (UNSC), before the High Court of Justice’s decision on the petitions filed by the Association for Civil Rights in Israel and others against the legality of the forced deportation of Hamas militants to Lebanon.
The British diplomat explained that they were able to postpone the discussion in the UNSC and that Britain sees three possible scenarios following the High Court of Justice ruling: a decision regarding the illegality of the deportation that will resolve the problem, a decision regarding the legality of the deportation with different interpretations that will make it easier for the Israeli government to change direction, and a decision that will confirm unequivocally the legality of the deportation.
The British diplomat explained that “in the last two scenarios, he assumes that it will not be possible to prevent an immediate meeting of the UNSC.”
Meir’s response to the British diplomat was nothing short of amazing, since even though he represented a government that was fighting in the High Court of Justice for the legality of its position, he claimed that even if there is indeed an unequivocal decision by the court supporting the legality of the deportation, “it would be better to allow an additional waiting period to allow the parties to rethink their steps.”
That is, while one hand of the government was fighting in the court to defend its position and dismiss the petitions, the other hand used the court and petitions for diplomatic purposes and also tried to use the possible rulings as a ladder to get off the tree.
The Israeli government did “horse-trading” in the UNSC through the fig leaf of the High Court of Justice.
Time will tell if the conduct of the current war in Gaza and the continuation of the occupation of the West Bank without the fig leaf of the High Court of Justice will pay off for Israel and not only hasten the arrival of Israelis as defendants at the International Criminal Court in The Hague.
On the other hand, from the point of view of the Palestinians, it is not certain that the removal of the fig leaf of the High Court of Justice will help them, as the Israel has additional tools to prevent their success in promoting proceedings and justice in international courts.
Eitay Mack is an Israeli human rights lawyer and activist.