Good cop, bad cop: How the Israeli judiciary is upholding apartheid

Last year, Palestine referred Israeli violations to the ICC; whose jurisdiction would be complementary to Israel's. But, treating Israeli judiciary as impartial is a huge mistake, one that would seriously undermine the ICC's credibility.

The burden of International Law

It took humanity two world wars with millions of dead to finally reach the current form of International Law (IL). There's no doubt this should be perceived as a great achievement for human civilization. But the same cannot be said of Israel, however, which appears to perceive International Law as a burden, rather than an achievement.

Having no constitution to arrange the relationship between domestic and international laws, Israel adopted a hybrid system inserting norms that would make international law "unnecessary".

For example, international customary law only becomes part of domestic law if it does not contradict domestic law. In cases where it does, Israeli law prevails. An international treaty, however, needs to be approved by the Knesset first to become a part of domestic law.

Needless to say, the Knesset is divided between an extremist ultra-nationalist right-wing bloc and a "centrist" bloc led by military commanders facing war crime allegations.

Israel's top court has never hesitated to confront, disregard or even totally ignore the existence of International Law

But Israel does not function as the democracy it claims to be. For democracies do not so brazenly and irresponsibly break the law. To circumvent these obstacles, it has developed certain "legal" norms and techniques allowing it to contradict international law, by law. 

Israel's top court for example has never hesitated to confront, disregard or even totally ignore the existence of International Law.

In Mara’abe v. Prime Minister of Israel [2005] about the internationally condemned Separation Barrier in the West Bank, Judge Cheshin J. simply refused to legitimise the International Court of Justice's Advisory opinion on the matter.

The ICJ had categorically ruled that the Separation Barrier is illegal and should be removed, but HCJ's judges found it "dim".

Another example is Yesh Din v. IDF Commander [2010] against the transfer of Palestinian prisoners out of the Occupied Territories. Here, the court acknowledged that it directly violates Geneva Convention IV, but rejected the petition all the same. And with that, the "supremacy of Israeli law" was reaffirmed.

In other cases, judges simply avoided dealing with a case, dismissing it as inadmissible claiming that the court is not the appropriate institution to deal with the matter (non-justiciable). In Bargil v. The Gov't. of Israel [1993] regarding the illegality of settlements, judges found the petition both substantially and institutionally non-justiciable. A quick reminder, this is Israel's Supreme Court, there are no higher domestic courts above it.

In other cases, judges didn't even bother to justify themselves. In Dawi’at v. Minister of Defense [2009] regarding house demolition, the court simply made no reference at all to International Law.

An empirical research examining 207 cases on the occupied Palestinian territories in the years 2000-2005, found that in only 75 cases (around 36 percent), the judges bothered to make reference to International Law. When reference was made, it was selective.

PR for the IDF

The Israeli judiciary isn't just doing PR for Israel's war crimes and apartheid, it is directly complicit. Law is important in Israel; as a tool of control, and that is what jurists call the "rule of law". Just as in an apartheid South Africa (also called a democracy, once upon a time), the parliament enacts racism, the government executes it, and the judiciary defends it.

In any sound judicial system where the rule of law prevails, laws are interpreted in the light of values and rights, not just texts. In corrupt judiciaries, however, inconsistency, selectivity and disregarding international law prevails.

In corrupt judiciaries, however, inconsistency, selectivity and disregarding international law prevails

The Knesset has enacted dozens of racist laws. The Israeli government has implemented them establishing a fully-fledged apartheid regime over the Palestinians, and the judiciary did not just turn a blind eye, it justified it.

Take the example of racist planning policy in the occupied West Bank. Israel's top court defended those policies and called them "lawful and legitimate".

Israel, being a "democracy" cannot just steal Palestinian lands like thugs. It has to be professional, and act through a planning apparatus. A thorough study observed that Israeli planning policy in the West Bank is mainly designed to strip Palestinians of their lands, creating conditions where they would have to leave their homes.

Since the HCJ ruled that the government cannot build settlements on privately owned lands (a decision often proudly quoted by hasbara officials to prove Israel is a democracy), the planning apparatus started working on expanding state lands (mainly in the service of the Jewish-only population), survey lands, and military training zones through different strategies.

Read more: Israeli plan to 'facilitate Palestinian emigration' is even more insidious than you thought

Those strategies resulted in inter alia, the extreme overcrowding of Palestinian villages (some are 70 percent more crowded than even New York and London). Another phenomenon sees Palestinians leaving villages without access to basic services such as water or energy, because state lands cut them off from water and power grids.

In hundreds of cases, Palestinians applied for building permits that Israeli authorities denied, so they had to build on their own, and risk their buildings being destroyed.

When bulldozers came to bring down their homes, they turned to Israeli courts desperately seeking whatever their "justice" may serve. For its part, HCJ declined those petitions and approved the planning policy.

In Sami v. Minister of Defense [2009] the HCJ judges found that "there are no grounds to grant the Petitioners the relief sought" despite them having complained about how severely the military training zones impinged on their lives.

Of course, no reference to international law was made. In other cases, the judges simply blamed the petitioners and treated them like criminals because they "took the law on their own" and built despite the fact they were denied permits.

Judge Edmond Levy, in Jaber v. Military Commander [2010] said that they "fail to understand why the Petitioner believed he had cause to seek relief from this Court".

As for Palestinian citizens of Israel, a complete set of racist laws ensures they remain second class citizens. The court has never challenged them.

Palestinian petitions were dismissed and Palestinians were treated as criminals and accused of "bad faith" and "lack of probity" because they shamelessly "took the law into their own hands." Shouldn't they just leave their homes that had no access to water or electricity?

As for Palestinian citizens of Israel, a complete set of racist laws ensures they remain second class citizens. The court has never challenged them.

Good cop, bad cop

Israel has established a fully-fledged apartheid regime over the Palestinians where the judiciary plays the role of the good cop to counterbalance the extreme racism of the outwardly bad cop; the Knesset and government.

To save face, the judiciary must give some 'concessions', such as prohibiting building settlements on privately owned lands, so Israel's democratic allies don't have a hard time justifying to their electorate why they support an apartheid regime.

But, as history tells us, simply perfuming a bomb will not the smell of death any sweeter.

Hassan Ben Imran is an independent analyst in Middle East affairs, and a jurist focused on international criminal justice in conflict zones. 

Follow him on Twitter: @Hassan_Imran

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.