Monday, September 20, 2010

law that means nothing

The law is a farce in the occupied territories, whether it is military law or Israeli civil law that is supposed to apply to the Israelis who live in the settlements.
  • laws that exist can be interpreted so broadly as to exercise no restraint on the IDF
  • rulings of the Israeli High Court can be disregarded repeatedly by the military, as one would expect of a militarized state such as Israel where power lies with force rather than legislation.
  • laws can be passed specifically to discriminate against Palestinians, in fact the founding law of the State of Israel does so by declaring Israel a Jewish state.
  • settlers can disregard law entirely when harassing or stealing land or destroying property of the Palestinians. In fact, IDF soldiers will often stand by or even assist settlers against Palestinians.
There's a good example of the meaninglessness of law provided by what has happened at the Derekh Ha’avot outpost, near the Elazar settlement, in the Etzion Bloc. The Etzion bloc is the southernmost of the four settlement blocks shown on the following map, all of them illegally established in occupied territory.

The Israeli High Court of Justice ruled nine years ago that the Derekh Ha’avot outpost was illegal and ordered it stopped and demolished. Neither action happened. Instead, settlers continued to build.

The Israeli group Peace Now petitioned the court, demanding the law be enforced. In 2008 this petition was denied. The reason? The High Court deferred to the military, though Israeli citizens are involved. This, of course, is a green light to all manner of behavior by the settlers in the occupied territories since the Israeli military has shown itself unwilling to restrain them.

Law restraining the Palestinians, however, such as the one forbidding them to build new structures or additions on their own land, is rigorously enforced.

I ask all Americans - would we accept a ruling by the Supreme Court that is not enforced? As you know, the Supreme Court ruled on judicial matters at Guantanamo, outside of the United States, and there was no question that the ruling would be obeyed by the U.S. Army.

In Israel, though, American money continues to flow in regardless of the flagrant disregard of the law. What would Jewish U.S. Supreme Court Justices Felix Frankfurter and Louis Brandeis have said, what would current Justice Ruth Bader Ginsburg say?

Frustrated Palestinians who are driven to extremes, to violence, by this outrageous lawlessness are dubbed terrorists - but who is it that truly is stopping at nothing, at no law?

Summarizing the situation at the Derekh Ha’avot outpost, Israeli human rights group B'Tselem in it's report says...
The High Court’s decision, which adopts the state’s position with respect to the Derekh Ha’avot outpost, legitimizes the looting of land and ongoing contravention of the building laws, in this outpost and in all the other settlements, and exempts the law-enforcement authorities from enforcing the law on criminal settlers and lawbreakers. Given the illegality of the settlements in the first place, B'Tselem demands that the government of Israel dismantle the outpost along with the rest of the settlements and immediately enforce the law on the settlers.

Justice for all? Good luck on that!

P.S. This just in - the prohibition on using .22 bullets on protesters is ignored by the IDF


  1. It is not true that US Supreme Court decisions have always been obeyed. The Court ordered a stay of Andrew Jackson's Indian Removal in some cases; Jackson famously said, "the Court has made its decision, now let it enforce it."

    Brown v Board of Education remained unenforced for many years, over a decade in some areas. That decision ordered desegregation "with all deliberate speed" (maybe not the actual quote, but the sense. Yet that Court knew the resistence ahead, so expected Appelette Courts to engage in skirmishing with local political leaders, which is what happened.

    The power of high courts evolves. Chief Justice John Marshal (not a hero of mine) crafted decisions which expanded Court power while being very hard to avoid or disobey. Maurbery v Madison, which established the Court's nullifying power over unconstitutional laws, did so by giving a victory to his ideological opponents!

    I am not defending the Israel Supreme Court's actions here. I know nothing about them. But a Court knows, or tries to guess, how far it may go at any historical moment. The ISC has assumed great power in domestic affairs; I am not surprised that, seeing the military partially or totally ignore its ruling in the occupied territories, the Court backtracks to save face and future power. It is my understanding that the Court rules in three judge pannals, as do US Courts of Appeal. And, as in the US, a pannal's decision is binding over the whole Court. A pannal refusing to hear a case may, likely will, be a different set of minds; if it disagreed with the first decision of a different pannal, it may try to find a new reason to not implement that decision when faced with the problem. So too the US Supreme Court will try to "distinguish" previous precedents to get somewhere else in a current case.

    Again, I am not defending the case you allude to, as I have no knowledge of it or of the prior decision to dismantle. I just say that the ISC is certainly in a state of internal conflict, and I am not surprised to see de facto reversals as judges retire and new ones come in, just as in the US SC. It is a mistake, I think, to condemn the institution in toto, or refer to Jewish members of the US SC as somehow different than the ISC. Brandeis, for instance, upheld sedition laws during WW I which imprisoned people for writing opposed to that war.

    A few months ago an ISC pannal ordered the opening of a West Bank highway to Palestinians, the vote 2-1. The dissent reffered to Torah, saying the occupied land was Israel's! He lost that one; but he was appointed somehow, and more may be too. There are many great battles going on in Israel proper. Those in the ISC are some of the most important, I suspect. Recall Plessy v Fergeson in the US original sustained seperate but equal.

    (I apologize for misspellings, including proper names. I should look them up, but am too lazy at the moment. I hope my references are clear, though. Again, I thank you for your very informative and passionate site.)

    Suzukicourt, aka Gregory B. Pollock

  2. Good points, Greg. There certainly is a limit to what courts can do because, after all, they have no intrinsic physical power. Even legislative bodies tremble in the face of the military in too many places.

    I believe that in Brown vs Board of Ed, the chief justice was very concerned to make the decision unanimous to allow no doubt about where the court stood. When it came down to enforcement, I'm happy to say that in the end the national guard was called out to make it happen in Arkansas, a major event in the power relations of the states, the federal gov't and the court.

    I can't imagine that scenario in Israel, where my impression is the status of the IDF is, unfortunately, higher than that of the law.

  3. Your use of the Arkansas 1957 case sort of makes a greater point. The Governor of Arkansas actually deployed National Gurad troops to prevent 9 blacks from entering Little Rock High School. The MAYOR of Little Rock asked Eisenhower to counter by deploying regular army, which the President did; he also federalized the National Guard and ordered them to stand down. So a local political figure trumped his political superior by going to the Federal Government. This in 1957, 3 years after Brown v Board. And many parts of Arkansas, indeed the entire South, remained segregated (in schools) into the 1960's.

    One reason why Brown worked is that an external power to States could intervene, with the effects of dessegreation mostly but not entirely limited to a geographical area (the South). In Isreal, mostly, this is not the case; although I suspect that if sustained civil resistence by Arabs begins in Israel proper you will see changing elite coalitions in response, some helping resistence, others opposed. Certainly in the occupation there is no analog to a rather neutral federal power.

    I am not opposing you. It is just that the events here in America may not be possible in Israel; which means not necessarily defeat, but perhaps a different evolution toward action. Even IDF Command (not my heros either) may have some dissent within it. What ultimately will happen I can not fortell, but, somehow, I do have a faith in the evolution of law, and hope for its highest Court. Do you know of its former Justice, Barak and his late dissents? He has now retired, I believe.

    Thank you for listening to this rather useless one. I certainly do not want to see you stop fighting.

    A snynopsis of the 1957 Little Rock Arkansas event may be found at

    Still Greg.