A resonant flotilla ruling from the High Court

Decisive legal support accorded to the IDF.

June 6, 2010 05:09
3 minute read.
Supreme Court President Dorit Beinisch

dorit beinisch 311 Ariel Jerozolimski. (photo credit: Ariel Jerozolimski)


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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.

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The Supreme Court has gained unique status in the world of jurisprudence. Even among the most liberal of democracies, it is unrivaled in its independence, in its readiness for interventionism and in its insistent fearlessness of stepping hard on the toes of other branches of government.

In his book Coercing Virtue: The Worldwide Rule of Judges, eminent American legal scholar Robert Bork declares that “Pride of place” of any supreme court’s excessive judicial activism “goes not to the United States, nor to Canada, but to the State of Israel... Imagine, if you can, a supreme court that has gained the power to choose its own members, wrested control of the attorney-general from the executive branch, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures.”

This has not, by any means, earned the highest court in our land universal admiration at home. Domestically, it is frequently perceived as pushing a left-wing agenda, with critics charging that it does so on occasion at the expense of vital national interests and that the justices sometimes view themselves as functioning in a hypothetical World Court rather than in the beleaguered Jewish state.

Examples of the court’s dramatic role in decision-making processes are numerous. In March 2000 it ruled that Arabs may settle on Jewish National Fund lands. In January 2003 it overturned a decision by the Central Election Commission to disqualify the Balad Party and its then leaders, Ahmed Tibi (Arafat’s long-time adviser) and (the now absconded accused spy) Azmi Bishara from running for the Knesset. Time after time, it has ordered the rerouting of the security barrier, reducing the amount of West Bank territory it encompasses and bringing it closer to the Green Line, when it has felt that Palestinian humanitarian concerns were wrongly addressed in the balance with defense considerations. Most recently, despite concerns over an escalated vulnerability to terrorism, it forced the opening of Route 443 connecting Modi’in and Jerusalem to Palestinian traffic.

Against such a background, the decision of this court – one that has consistently made itself a thorn in many an Israeli government’s side – to unequivocally and in the strongest terms uphold the state’s legal right to impede sea passage to Hamas-controlled Gaza should be heard and respected by democracies worldwide.

Any other reaction would attest to an untenable bias – to the dismissal of Israel’s ultra-autonomous and honorable legal system, one that accepts appeals from avowed enemies of this state, gives their litigants fair hearings and recurrently rules in their favor. The fact that 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 Court President Dorit Beinisch staunchly defended Israel’s right “to prevent direct access to Gaza, including to impose a naval blockade to thwart the smuggling of weapons and ammunition to Hamas, which for years has shelled Israel and launched terrorist attacks against Israeli civilians.”

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. Attempts were made to snatch their personal weapons and to violently injure them. One of the soldiers was even thrown overboard.”

Beinisch is no yes-woman. Indeed, her conclusions should reasonably be regarded as being as credible as those of an impartial fact-finding inquiry. She is certainly more objective than any neo-Goldstone inquisitor the UN might appoint.

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