A 25 petition losing streak: Why don't the terror victims' families throw in the towel?

The current deal's structure, of splitting the release into four stages over nine months, giving more chances for the state to pull-out.

By
August 11, 2013 20:36
3 minute read.
Protest for Palestinian prisoners

Protest for Palestinian prisoners. (photo credit: Mohammed Salem/Reuters)

 
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Meir Indor, head of the Almagor Terror Victims Association, was up front with the High Court of Justice on Sunday about his likelihood of success in blocking Tuesday’s planned release of some of the worst Palestinian prisoners with “blood on their hands” as a last good faith move by Israel to renew the peace process with the Palestinians.

Indor described 30 years and 25 petitions of defeat to the court.

Why experience the public humiliation and revisit the pain of his and others’ lost ones so many times when, at least in terms of the prisoners’ releases, petitioning the High Court has always been in vain? First, there is always a chance that the unique framing of the particular deal could lead the judges to a different conclusion.

Whether the legal outcome is different or not, there is certainly room to argue, if only from basic notions of justice, that a deal based on giving back prisoners with no blood on their hands, such as thieves, is different than releasing murderers.

At least some theories of justice hold that murderers are punished not merely to deter and prevent future crime, but to obtain justice for the victim and the victim’s loved ones.

Next, one can at least argue that the premise of what is being received in return for releasing prisoners could frame a deal differently: whether it is the dead bodies of soldiers, a live soldier like Gilad Schalit or the more amorphous but also potentially greater impact of the idea of moving forward the peace process.

The justices might react different to an argument that 1,000 prisoners for only one is concrete but unequal, than the argument that nothing guaranteed as concrete is being received in return, as here.

Some might have thought that Supreme Court President Asher D. Grunis, who was brought into office by the right-wing and had never led a panel on the issue before, might be more sympathetic than his predecessor, Dorit Beinisch, viewed as more left-wing.

But this would mistake the reason that the court has not intervened.


The reason the court, through all the changings of the guard over the years, has not vetoed a deal is because of its fundamental commitment to preserving the sovereignty of the executive branch in matters of state.

In other words, the deal can be a bad deal, but if the state can muster any argument for it, even if the argument has holes, the court will stay out of it.

All indications from Grunis’s impatience with the victims’ families’ side indicated that this petition will merely extend the terror victims’ losing streak.

The other possible reason that Indor continues his perpetual victory-less battle is that with every hearing, there is increased public debate and pressure on the executive branch to think twice about making another deal.

There is evidence that this tactic has worked from all the deals that did not happen.

Even the Schalit deal happened only after numerous failed proposals, generally when the Israeli side pulled out, saying the price sought by Hamas was too high.

The current deal’s structure, of splitting the release into four stages over nine months, giving more chances for the state to pull out of the later deals, no doubt emerged from pressure the government felt about what would have happened if it released all 104 prisoners and the negotiations fell apart after only a month.

Indor may be win-less in court, but he has built up quite a few points over the years in public opinion and in pressure on the executive decision-makers.

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