The Nation / March 30, 2023
The judiciary that protesters say protects their freedom is a key architect of the apartheid regime that has stolen so much freedom from Palestinians.
Following immense pressure, Israeli Prime Minister Benjamin Netanyahu has delayed his government’s plan to weaken the Israeli Supreme Court. The self-proclaimed pro-“democracy” camp, which was protesting the plan so that the court could be saved from the grips of the pro-government camp for whom the judiciary is laughably “too leftist,” has, for the moment, declared victory. But the pro-government camp also has reason to cheer; in exchange for his acquiescence to the delay, National Security Minister Itamar Ben-Gvir was granted a long-sought “national guard,” which would function as his own private militia.
For now, the liberal and religious Zionists tussling over the public face of their regime in the streets of Tel Aviv have taken a breather. Calm—that is, the status quo of occupying and besieging millions of Palestinians—has been restored in our bad neighborhood’s tiny Jewish haven. But tensions are expected to start anew after the judicial overhaul is presented before the Knesset again—most likely after the Jewish holidays. The conflict might not even wait that long, as pro-government protesters have called for a march against “the shackles of the Supreme Court.”
As an insider observing this food fight, it is surreal to watch reporters and commentators promote the narrative that the government’s Likud-Jewish Power-Religious Zionism coalition and the Supreme Court exist on extreme opposing ends of the political spectrum. Their differences, when it comes to how they rule over the lives of Palestinians, are purely cosmetic. In essence, one camp wants to eat with their hands while the other wants to mandate forks and knives, but in both scenarios, Palestinian rights will be devoured.
“Ironic” doesn’t begin to describe hearing words like “leftist” and “hyper-activist” in proximity to the Supreme Court, the settler-built and settler-serving institution that has, for decades, authorized and facilitated the ethnic cleansing of the Palestinian population. Are we all talking about the same court here? Palestinians are forced to engage in a starkly different relationship with the law than the one Jewish Israelis enjoy.
The legal body those pearl-clutching liberal Zionists are taking to the streets to defend is the same one that, last May, ruled—in complete violation of international law—in favor of the government’s plan to forcibly expel over 1,300 Palestinians from Masafer Yatta in the South Hebron Hills. And, to make the forcible transfer of communities that predate the Zionist state even more cartoonish and bleak, one of the Supreme Court judges that green-lighted this war crime is himself a settler living in the occupied West Bank.
Masafer Yatta isn’t the only example. Many Palestinian families have seen their homes demolished at the stroke of an Israeli judge’s pen. In February, the Supreme Court criticized and fined the government for its decision to postpone the razing of Khan al-Ahmar, a Palestinian village in the eastern part of occupied Jerusalem, in its entirety, demanding that the government carry out the demolition order as quickly as possible.
One can find the fingerprints of the Supreme Court on virtually all of the Israeli government’s settler-colonial enterprises and apartheid regime. It has ruled that the country’s Nation-State Law, which enshrines “Jewish settlement” as a “national value…to encourage and promote,” does not negate the state’s “democratic” character, and repeatedly supported the legality of what is known as the “family reunification law” that robs thousands of Palestinian couples holding different legal statuses of “the basic right of being together as a family.”
And the list goes on. In 2006, for example, the court rejected two challenges to the route of the Israeli separation-and-annexation wall, allowing the construction of the barrier on privately owned lands in the eastern part of occupied Jerusalem, including a cemetery. Not only did the decision tear Jerusalemite families apart; it also separated some of those affected by the wall from their “center of life” in Jerusalem, making it impossible to meet a legal requirement for avoiding the revocation of residency status.
In its entire history, the Supreme Court has never once granted a petition to cancel an administrative detention order. Instead, it has “served as a rubber stamp” for the Israeli military’s draconian policy of indefinite detention without trial—a measure rarely, if ever, used against Jewish Israelis.
The court’s involvement in the incarceration of Palestinians extends into the interrogation room. Though torture is now technically illegal under Israeli law (something that took until 1999 to happen), the Supreme Court has offered the Israeli military and security services a myriad of legal loopholes that allow for it. In 2018, it ruled that the Israeli Security Agency’s guidelines for the use of “special means” and “psychical means of interrogation” (i.e., torture) are legitimate in “ticking bomb” circumstances.
Things don’t end with mere detention or torture. In 2018, during the brutal crackdown on the Great March of Return which created a generation of martyrs and amputees in the besieged Gaza Strip, the court ruled that the occupation forces’ use of lethal force against Palestinian demonstrators was “legitimate self-defense.”
Even dead Palestinians are subjected to the court’s inhumanity. From repeatedly upholding the long-running Israeli policy of withholding the corpses of Palestinians and using them as “bargaining chips” to authorizing the army’s restrictions on Palestinian funerals, the High Court has historically played a pivotal role in institutionalizing the Zionist regime’s practices of necroviolence [necropolitics is the use of social and political power to dictate how some people may live and how some must die ].
Some may argue that things are a bit more complicated—that expelling, exiling, torturing, dispossessing, killing, and desecrating Palestinians is not all that the Supreme Court does, especially when contrasted with what it represents for liberal Jewish Israelis: a beloved beacon of progress and reasonability. It has offered them things like allowing surrogacy for single women, single men, and same-sex couples. It is a legal body able to stand up to the government’s wrongdoing. But even if you cast aside the subjugation of Palestinians, that claim is still incredibly overstated. The Israeli Supreme Court has invalidated only 22 laws or pieces of laws in the 31 years it has been allowed to do so. Its reputation as a “hyper-activist” court pales in comparison to its historical demeanor, which has been one of “restraint to a fault.”
The Supreme Court’s restraint in challenging the Israeli government, particularly and especially when it comes to the rights of Palestinians, is a good rebuttal to the notion that Palestinians should also be taking to the streets to protest the government’s proposed judicial overhaul. Yes, weakening the High Court of Justice would mean restricting judicial review over Basic Laws and regular laws as well as canceling the “Judicial Reasonableness Test.” But how often do these avenues help Palestinians?
Israeli courts—often built atop Palestinian ruins—have historically served as sites of displacement, dispossession, and death. The Supreme Court will continue to rationalize the occupation in a drawn-out game of legal semantics. And for the Israeli elites, it will maintain the delusion that they are living in a “democracy.” The chasm splitting apart Israeli society is about who gets control of the Zionist regime—over the strategy of domination, not the domination itself. There is no saving these courts. We should be striving to build institutions that are truly just—and that simply cannot happen under the rule of Zionism.
Mohammed el-Kurd is the Palestine correspondent for The Nation; he writes primarily about dispossession in Jerusalem and colonization in Palestine; his debut book is a volume of poetry, Rifqa (Haymarket Books).