Analysis: Why the High Court intervenes on settlements, war, but not prisoner releases

HCJ veto would leave court responsible for halting peace process.

By YONAH JEREMY BOB
Mother and son protesting prisoner release 370 (photo credit: Hadas Parush)
Mother and son protesting prisoner release 370
(photo credit: Hadas Parush)
When the High Court of Justice rejected intervening to block Tuesday’s Palestinian prisoner release, its statement that it would not do so because it does not become involved in matters of state was a bit simpler than the reality.
Regarding intervening on matters of state, like balancing settlements (in the general sense, including illegal outposts), foreign policy and national security, Supreme Court President Asher D. Grunis, who presided over the prisoner release petition, had two groundbreaking back-to-back decisions against many of the settler activists who effectively put him into power right at the start of his now over one-year-old reign.
His first two major decisions, just after taking over the reins, were ordering the state to remove the Migron and Ulpana settlements.
These two rulings made his right-wing supporters’ mouths drop open.
Some supporters were so shocked that they angrily spoke out and wrote op-eds against former court president Aharon Barak’s judicial activism, which had supposedly led to the ruling.
But Barak had retired years before, and the ruling was made by Grunis, their own candidate.
While Almagor Terror Victims’ Association head Meir Indor briefly tried to interject the court’s intervention on settlement issues into the hearing on the prisoner release, neither the petition itself, nor the state in response, nor the court in its opinion rejecting the petition, spent much time on the issue.
Grunis even appeared patient with Indor until he mentioned settlements, and then appeared ready to cut him off and urged him to finish his comments.
So Grunis and the court do intervene on settlement issues which implicate statecraft, but not on prisoner releases.
In some cases, the comparison is apples and oranges. The Migron decision, for example, was ultimately a domestic law issue of enforcing an eviction (or rejecting blocking an eviction) once the Justice Ministry itself took the position that the outpost was illegal (though there was significant controversy about the ministry’s position).
But there are clearer cases where the court has ordered the IDF to change the position of the West Bank security barrier, despite IDF and state arguments that the placement of the wall was a national security need and issue of state, after complaints by Palestinian villagers that they were losing their land unfairly.
Almagor did not mention these cases, but the court has also intervened to give the state a mandatory set of factors for carrying out targeted killings and in the use of certain weapons, such as white phosphorous – both of which could be viewed as untouchable national security issues.
Outside international pressure could be cited as a reason for the court’s intervention in those cases, but would likely not consistently explain the court’s rulings.
Rather, the answer likely lies in the mechanics of the cases.
When the court has ordered a change in the West Bank barrier’s path, it has never declared an end to the entire barrier – it has merely amended its path.
The court never completely invalidated targeted killings or white phosphorous, it just provided constraining factors.
If the court vetoed a prisoner release, it would complete the cancellation of a policy and would be singularly responsible for bringing the peace process to a halt.
If the court crossed some prisoners off the list, but not others, it would “own” the list of those being and not being released – and since the Palestinians might not accept any amended list, it might still be responsible for stopping the peace process.
Stated differently: The court would rather not intervene, and only intervenes when it can do so without making waves.
Whether this is a defensible legal interpretation of when courts can and cannot intervene in state decisions is debatable, but considering that even “activist” courts are usually considered the weakest branch of government, it is not surprising.