High Court rejects petition for more oversight of Israel’s nuclear agency

The court said the Knesset and not the judicial branch should decide the issue.

THE NUCLEAR reactor in Dimona. (photo credit: REUTERS)
THE NUCLEAR reactor in Dimona.
(photo credit: REUTERS)
The High Court of Justice rejected a petition on Tuesday for increased oversight and basic regulation of Israel’s nuclear program.
While saying the issue “is a worthy issue for public debate,” and taking the historic step of holding hearings on the issue, the court said the Knesset and not the judicial branch should decide the issue.
This mantra was also mentioned repeatedly by the three justices at the September 6 hearing on the petition of the Israeli Disarmament Movement and 100 other citizens, asking the court to order the Knesset to pass legislation that would enhance oversight.
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 there is already oversight over the Israel Atomic Energy Commission, through the state comptroller and others, even if it is not anchored in law and made public.
The court, in rejecting the state’s legal brief last week, for the first time ever entertained the idea and held hearings about whether it had oversight powers over Israel’s nuclear program.
It was also the first hearing run by Justice Esther Hayut since her designation on Tuesday as the next Supreme Court president – to go into effect in late October.
However, with the negative comments of the justices, who also included Menachem Mazuz and Noam Sohlberg, leaving the outcome of a rejection fairly certain, Israeli Disarmament Movement leader Sharon Dolev pushed back at the time.
“Nuclear ambiguity [about whether Israel has or does not have nuclear weapons] made it impossible for us to get real oversight over two of the most dangerous facilities in Israel, an ambiguity that killed the responsible discourse around these facilities,” she said.
“In the end, I am sure that there will be regulation and oversight over the Israel Atomic Energy Commission,” Dolev said. “The question is, if as with most cases, it will have to happen after a catastrophe. I hope not, because oversight can reduce the chances of a... catastrophe.
“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.”
Prof. Avner Cohen of the Middlebury Institute of International Studies, a longtime critic of Israel’s nuclear program and one of the petitioners, flew in from California to attend the hearing.
Petitioner's lawyer, Eitay Mack, also requested that Cohen be allowed to make a statement at the hearing, which the High Court sometimes allows for prominent attendees, but Hayut rejected the request.
Petitioners had said that the solution to the lack of transparency is to enshrine the Israel Atomic Energy Commission’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 by a secret administrative order, issued by then-prime minister David Ben-Gurion, and by a later series of secret government decisions.
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 the nation’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 vaguer and less immediate, and left time for them to lobby the Knesset to pass legislation.