The High Court is enjoying a momentary day in the sun

The Israeli legal establishment believes it is in a much stronger position defending itself against complaints of war crimes at the Gaza border than it was in 2014.

June 1, 2018 22:28
The High Court is enjoying a momentary day in the sun

Palestinian demonstrators run for cover from tear gas fired by Israeli forces during a protest at the Israel-Gaza border in the southern Gaza Strip, May 11, 2018. (photo credit: REUTERS/IBRAHEEM ABU MUSTAFA)

The Israeli legal establishment believes it is in a much stronger position defending itself against complaints of war crimes at the Gaza border than it was immediately after Operation Protective Edge in 2014.

That was one clear takeaway from the Israel Bar Association’s annual conference in Eilat this past week, along with last week’s High Court of Justice declaration that the IDF’s open-fire rules on the Gaza border are legal.

Both Attorney-General Avichai Mandelblit and IDF legal chief Brig.-Gen. Sharon Afek cited the High Court’s decision as a sign that the IDF is on the right track, appearing to view it as a sufficient shield from international legal scrutiny.

Mandelblit cited the decision as an example to prove his point that the High Court’s independence is crucial in defending the IDF against international war crimes allegations.

In other words, Mandelblit felt the High Court’s decision itself could save IDF commanders and soldiers from war crimes investigations by the International Criminal Court and other such bodies.

Likewise, Afek quoted no fewer than three extended passages from the High Court opinion as a sign that the IDF’s conduct was thoroughly reviewed and found to be legal.

Afek also quoted from the three justices’ opinions which characterized the Gaza border crisis as one whose primary character is a version of armed conflict as opposed to mere raucous protests.

In conversations with various sources at the conference and leading into the gathering, The Jerusalem Post also found that Israel officially does not feel as threatened by international legal scrutiny as it did after past major incidents.

For example, while there are numerous controversial incidents in which Palestinians were killed by the IDF, with accompanying videos suggesting the shooting was problematic, there are no signs that the IDF or any government body will be immediately putting out initial results of reviewing those incidents.

The IDF’s Fact Finding Assessment (FFA), which precedes any criminal probes of soldiers’ conduct that might be necessary, kicked in weeks ago.

But unlike past major controversial incidents in which some initial results were put out almost immediately, there are no signs that the FFA will publicly produce anything right away.

Foreign Ministry lawyer Sarah Weiss Maudi also confirmed this in an interview with the Land of Israel Network.

It is unclear how warranted this confidence is. The High Court bought into the government’s argument that said the potential breaching of the border leading to Gaza villages being massacred, was such a substantial threat it could treated as an immediate danger.

This is how the IDF argued it could use lethal force against certain protesters who were performing dangerous actions against the border wall or by inciting the crowd, but where the danger was not necessarily immediate in any traditional legal sense.

THE HIGH Court also accepted that the Gaza border confrontations are uniquely dangerous, even as compared to a famous 2008 case of a Greek-Cypriot killed by Turkish- Cypriot border security forces during protests, especially in light of evidence of heavy Hamas involvement.

It is unclear whether the ICC will accept the same premises. But after firing a harsh warning at Israel and Hamas on April 9, the ICC statement issued after a recent meeting with the Palestinian Authority Foreign Minister was much subdued.

The final word will come when the IDF finally publicizes its probes of controversial incidents in which it killed Palestinians.

The High Court was also highlighted in another major issue at the conference.

Only a few short weeks ago, it seemed that Prime Minister Benjamin Netanyahu had finally joined forces with Bayit Yehudi – and that he would twist Kulanu’s arm to get enough votes – to reduce the High Court’s power.

Then, High Court President Esther Hayut let loose a massive volley against the initiative; Kulanu made it clear it would block passage of it in the Knesset; and Netanyahu appeared to abandon the initiative as an unwanted stepchild for Bayit Yehudi to campaign for on its own.

If there was any doubt as to whether some kind of compromise might be found, the conference appeared to overwhelmingly indicate that the initiative is dead.

Justice Minister Ayelet Shaked, known for campaigning hard at every conference for the initiative, barely mentioned it. Instead, she talked about a new proposal related to giving greater due process to suspects and defendants.

Hayut, who had sounded as battle- ready as any chief justice only a few short weeks earlier, did not mention the issue, and talked about positive joint programs that the courts and the Bar Association run together. Discussion of the initiative was primarily limited to a panel involving Knesset Speaker Yuli Edelstein and recently retired chief justice Miriam Naor.

Edelstein tried mostly to avoid the issue, devoting most of his time to discussing trying to get the executive branch to enforce Knesset laws. When he was pressed about what to do about the initiative, he advocated dialogue with all of the branches of government and possibly a task force with Naor on it to find the right compromise for how many Knesset members should be needed to override the High Court.

If a few weeks earlier – under the gun of what seemed to be a Netanyahu- led heavily supported initiative – Naor might have been expected to grab a compromise offer, she was no longer in the mood. She asked why such an initiative was needed at all. Further, she said if the premise for the initiative was the government’s anger at the High Court for striking down its law related to African migrants, it should consider returning to the UN deal that Netanyahu previously embraced.

At some point, the High Court will disappoint the political class again, and the initiative to give the Knesset an override will return to the agenda.

But in Eilat this week, the High Court got to bask in the sun.

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