Protect the Israeli Judiciary — but Don’t Let It Launder War Crimes Against Palestinians

Protesters are hailing Israeli courts as the last bulwark of democracy, but democracy for whom?

https://theintercept.com/2023/03/29/israel-judiciary-war-crimes-palestine/?utm_medium=email&utm_source=The%20Intercept%20Newsletter

Hagar Kotef, Merav Amir

March 29, 2023,

ISRAELI PRIME MINISTER Benjamin Netanyahu and his far-right government’s attempt to radically overhaul the Israeli legal and judicial system has sparked widespread protests in Israel. Hundreds of thousands of protesters poured into the streets under the banner of defending Israeli democracy.

Very early on in the protests, billboard signs began popping up across Israel that said, “The High Court of Justice is our soldiers’ body armor.” The notion persisted as protests spread. And, likely driven by the fear of losing the court’s protections, a wave of reserve soldiers are declaring their refusal to serve, arguably the protests’ most significant element.

The “body armor” sentiment is largely correct. The perceived independence of the Israeli judiciary is a key factor in preventing international accountability for Israel’s crimes against the Palestinians — in the occupation and beyond. Most international court systems will only take up foreign cases if it can be shown that a country’s own system was unable to impartially adjudicate allegations of war crimes.

The situation, however, raises a question that few in Israel have dared to ask: Even without Netanyahu’s reforms, has the judiciary done enough to deal with violations of intranational law? Beyond its work upholding civil rights, have the courts’ rulings on international law merely given Israel’s crimes against the Palestinians a patina of legitimacy, as some progressive Israelis and many Palestinians contend?

A former attorney general, Avichai Mendelblit, was quite blunt in explaining why the country needs its courts to be independent: “The moment that the justice system in Israel isn’t perceived as such,” he warned, “Israel will lose international legitimacy for its military operations and will no longer be shielded from accusations of war crimes.”

Mendelblit’s prediction could soon be put to the test, with Palestinian appeals to the International Criminal Court in The Hague already pending. Losing the appearance of independence may expose Israeli soldiers, military commanders, leaders of the security forces, and even Israeli ministers, past and present, to prosecutions in foreign countries.

Such cases could rise to the level of holding Israel accountable for grave crimes such as torture: Last June, the Public Committee Against Torture in Israel, in collaboration with the International Federation for Human Rights, requested the ICC’s prosecutors to include the crime of torture in their investigation into the Israeli occupation of Palestine.

The question of torture in Israel is just one of several potential grounds for international juridical intervention relating to Israel’s treatment of the Palestinians. Israel’s prolonged occupation of the West Bank and the Gaza Strip, its sustaining of an apartheid regime, and the war crimes it has been committing in Gaza would also come to the fore.

Israeli courts’ treatment of torture and other crimes offer some answers as to how impartial the judiciary has really been on crimes against Palestinians — and the Israeli claims of democracy on display in the recent protests.

The Case of Torture

Taking a closer look at how the Israeli judiciary has been addressing allegations of torture reveals what is — and what is not — at stake in the recent legislation in Israel.

In 1999, Israel’s High Court of Justice rendered a ruling which was hailed as putting an end to the use of torture in Israel. Yet, according to data collected by Public Committee Against Torture in Israel and other human rights organizations, Israel still regularly subjects Palestinian detainees to interrogation methods that constitute torture and inhumane and degrading treatment, in clear violation of international law.

Complaints submitted by Palestinians who were interrogated by the Shabak, Israel’s general security service, to the Public Committee Against Torture in Israel since 2000 show the persistence of methods that were explicitly forbidden by the High Court in 1999.

An analysis we have conducted of more than 1,500 of these complains, which was funded by the U.K. Economic and Social Research Council, shows that physical violence — such as beating, violent shaking, and strangling — is still regularly used in interrogations. Other frequently used interrogation techniques include forcing people into painful stress positions, tight handcuffing, severe sleep deprivation, incommunicado detention, use of family members, threats, humiliations, and prolonged exposure to extreme temperatures.

This is not merely a de facto breach of the ruling: As several recent decisions by the justices make clear, the High Court itself is willing to tolerate and even explicitly approve the use of torture in violation of Israel’s obligations under international law — and, some would argue, the court’s own decision.

Israel has further put in place several judicial mechanisms to address complaints of torture in recent decades. Yet these, too, constantly fail to offer legal remedy to torture victims.

More than 1,300 complaints of torture have been submitted on behalf of Palestinians to the Ministry of Justice between 2001 and June 2021. Only three criminal investigations have been launched. None have resulted in an indictment.

Yet as long as Israel can claim it has robust mechanisms for investigating complaints and independent judicial oversight over its security forces, it can fend against calls for international intervention.

War Crimes Launderer

On Monday night, as Netanyahu was deliberating in his chamber whether to stop the new legislation following the protests and a general strike, right-wing demonstrators assembled in Jerusalem for the first rally in favor of the legislation.

Many of the slogans shouted in this rally were not directly supporting the government, but instead targeting Palestinians. Some were explicit — and, unfortunately, too familiar — calls demanding “death to all Arabs.” Several Palestinian passersby (as well as journalists and other Israelis perceived as “leftist”) were attacked by demonstrators.

It is clear that at least as far as the nationalistic right is concerned, enshrining Jewish supremacy is the goal of this constitutional revolution. This is not an unfounded supposition; it is the professed plan of some of the most senior members in the government, including the national security minister and the minister of finance, who recently openly called for the complete erasure of a Palestinian town.

This legislation must not be passed. Resisting it, though, cannot also be about the freedom of Israeli soldiers and security apparatuses to continue operating — and even killing — with impunity.

When calling to “protect democracy,” we must bear in mind that the High Court of Justice has indeed served as the body armor not just for soldiers, but also for Israel’s anti-democratic practices. For years, the court has condoned Israeli human rights abuses, including settlement expansion, extrajudicial killings, and torture of Palestinian detainees.

Whatever the results of the current constitutional upheaval may be, the world must no longer ignore what is now irrefutable: Israel’s judiciary has served as a war crimes launderer. The international community must intervene to hold Israel accountable for its continued violations of Palestinian rights — an accountability Israel evidently fails to uphold itself.

At the same time, those in Israel protesting in the streets should realize that there is no such thing as a democracy for Jews alone. A true democracy will only be achieved when Israel ends its long-lasting occupation, recognizes the national rights of the Palestinians, and offers protections and equality under the law for all its citizens.