Protest for Palestinian prisoners.
(photo credit: Mohammed Salem/Reuters)
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
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.
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.
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.
evidence that this tactic has worked from all the deals that did not
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.