High Court: Israel’s nuke program worthy for debate, but do it in Knesset

Petitioners had said that the solution to the lack of transparency is to enshrine the IAEC’s operations in primary legislation.

By YONAH JEREMY BOB
Updated: SEPTEMBER 7, 2017 01:14
THE NUCLEAR reactor in Dimona. (photo credit: REUTERS)
THE NUCLEAR reactor in Dimona.
(photo credit: REUTERS)
The High Court of Justice said on Wednesday that even if oversight of Israel’s nuclear program “is a worthy issue for public debate,” the issue should be debated in the Knesset and not decided by the judicial branch.
This mantra was mentioned repeatedly by the three justices hearing the petition of the Israeli Disarmament Movement and 100 other citizens to compel the Knesset to pass legislation on the issue that would enhance oversight.
Accordingly, they forecasted that the court would reject the petition, though no decision was issued Wednesday.
Even as the petition is likely to be formally rejected after the petitioners resisted pressure from the justices to withdraw their petition so that they would not need to rule, the hearing broke new ground in accomplishing many firsts.
In a legal brief, the state had asked the High Court to dismiss the petition without even an oral hearing, arguing that the High Court can strike laws as unconstitutional but cannot order the Knesset to pass laws.
It had added that within the Israel Atomic Energy Commission, through the state comptroller and others, there is already oversight, even if it is not anchored in law and made public.
The state’s legal brief was rejected, and Wednesday was the first time that the High Court has ever even entertained and held hearings about whether it had oversight powers over Israel’s nuclear program.
It was also the first hearing run by Esther Hayut since her designation on Tuesday as the next Supreme Court president, a designation to go into effect in late October.
After the negative comments of the justices, which also included Menachem Mazuz and Noam Sohlberg, leaving the outcome of a rejection fairly certain, Israeli Disarmament Movement leader Sharon Dolev pushed back.
“Nuclear ambiguity made it impossible for us to get real oversight over two of the most dangerous facilities in Israel, an ambiguity which killed the responsible discourse around these facilities,” said Dolev.
“At the end, I am sure that there will be regulation and oversight over the Israel Atomic Energy Commission. The question is, if, like with most cases, it will have to happen after a catastrophe. I hope not, because oversight can reduce the chances of a... catastrophe,” Dolev continued.
“The judges think that it is up to the parliament. It is hard to trust that our parliament... will be able to do it... with the level of nuclear discourse in Israel, but it is up to us to keep pushing. It is too dangerous not to do anything,” she said.
Middlebury Institute professor and longtime Israel nuclear program critic Avner Cohen, one of the petitioners, flew in from California to follow the hearing up close.
He also requested to make a statement at the hearing, which the High Court sometimes allows for prominent attendees, but Hayut rejected Cohen’s request.
Petitioners had said that the solution to the lack of transparency is to enshrine the IAEC’s operations in primary legislation that would regulate its roles, authority, form of organization and management, and require monitoring of its activities and facilities.
Noting that the IAEC was created in 1952, the petitioners had contended that its roles and methods of monitoring its activities have never been enshrined in law, a status quo that cannot continue.
The petition recalled that the entirety of the agency’s functions are governed merely by a secret administrative order, issued by then-prime minister David Ben-Gurion, and a later series of secret government rulings.
Trying to build its case, petitioners’ lawyer Eitay Mack pointed out that the Shin Bet (Israel Security Agency), though secretive and at the heart of Israel’s security, has been regulated by a broad Knesset law at least since the passage of the General Security Services Law in 2002.
But the justices rejected this comparison, saying that the Shin Bet performs interrogations with obvious deep invasions of privacy and risk to fundamental human rights of dignity. In contrast, they said that the petitioners concerns were far more vague, less immediate and left time for them to lobby the Knesset to pass legislation.
Mazuz also listed off examples of aspects of the IDF and the Foreign Ministry which he said are unregulated by law, even as Mack responded that the nuclear program is a unique case.
The justices ultimately were also not persuaded by the petitioners’ argument that they were not asking to end Israeli ambiguity regarding whether it wields nuclear weapons, only increasing oversight.