A resonant flotilla ruling from the High Court

Decisive legal support accorded to the IDF.

By JERUSALEM POST EDITORIAL STAFF
dorit beinisch 311 Ariel Jerozolimski (photo credit: Ariel Jerozolimski)
dorit beinisch 311 Ariel Jerozolimski
(photo credit: Ariel Jerozolimski)
Contrary to the expectations of some, Israel’s Supreme Court, sitting as the High Court of Justice, last week rejected petitions ensuing from the interception of the Gaza-bound flotilla.
The decisive legal support accorded the IDF is nothing to scoff at. This court is anything but a government lackey. Precisely because its decisions often go the other way, its current stance should not be downplayed or overlooked. It adds great moral weight to Israel’s case internationally.
The Supreme Court has gained unique status in the world ofjurisprudence. Even among the most liberal of democracies, it isunrivaled in its independence, in its readiness for interventionism andin its insistent fearlessness of stepping hard on the toes of otherbranches of government.
In his book Coercing Virtue: The Worldwide Rule of Judges,eminent American legal scholar Robert Bork declares that “Pride ofplace” of any supreme court’s excessive judicial activism “goes not tothe United States, nor to Canada, but to the State of Israel...Imagine, if you can, a supreme court that has gained the power tochoose its own members, wrested control of the attorney-general fromthe executive branch, set aside legislation and executive action whenthere were disagreements about policy, altered the meaning of enactedlaw, forbidden government action at certain times, ordered governmentaction at other times, and claimed and exercised the authority tooverride national defense measures.”
This has not, by any means, earned the highest court in our landuniversal admiration at home. Domestically, it is frequently perceivedas pushing a left-wing agenda, with critics charging that it does so onoccasion at the expense of vital national interests and that thejustices sometimes view themselves as functioning in a hypotheticalWorld Court rather than in the beleaguered Jewish state.
Examples of the court’s dramatic role in decision-making processes arenumerous. In March 2000 it ruled that Arabs may settle on JewishNational Fund lands. In January 2003 it overturned a decision by theCentral Election Commission to disqualify the Balad Party and its thenleaders, Ahmed Tibi (Arafat’s long-time adviser) and (the now abscondedaccused spy) Azmi Bishara from running for the Knesset. Time aftertime, it has ordered the rerouting of the security barrier, reducingthe amount of West Bank territory it encompasses and bringing it closerto the Green Line, when it has felt that Palestinian humanitarianconcerns were wrongly addressed in the balance with defenseconsiderations. Most recently, despite concerns over an escalatedvulnerability to terrorism, it forced the opening of Route 443connecting Modi’in and Jerusalem to Palestinian traffic.
Against such a background, the decision of this court – one that hasconsistently made itself a thorn in many an Israeli government’s side –to unequivocally and in the strongest terms uphold the state’s legalright to impede sea passage to Hamas-controlled Gaza should be heardand respected by democracies worldwide.
Any other reaction would attest to an untenable bias – to the dismissalof Israel’s ultra-autonomous and honorable legal system, one thataccepts appeals from avowed enemies of this state, gives theirlitigants fair hearings and recurrently rules in their favor. The factthat even terrorists and their advocates are free and feel free to petition this court, and can reasonably anticipate legal succor and victory, speaks volumes.
There is thus particular importance to the fact that Supreme CourtPresident Dorit Beinisch staunchly defended Israel’s right “to preventdirect access to Gaza, including to impose a naval blockade to thwartthe smuggling of weapons and ammunition to Hamas, which for years hasshelled Israel and launched terrorist attacks against Israelicivilians.”
Noting that Israel offered to transport the ships’ cargo to Gaza via Ashdod, Beinisch added that during the takeover of the Mavi Marmara“IDF soldiers were attacked with knives, clubs and metal rods. Attemptswere made to snatch their personal weapons and to violently injurethem. One of the soldiers was even thrown overboard.”
Beinisch is no yes-woman. Indeed, her conclusions should reasonably beregarded as being as credible as those of an impartial fact-findinginquiry. She is certainly more objective than any neo-Goldstoneinquisitor the UN might appoint.