Israel's Conscience High Court in Tel Aviv Flexes its Liberal Muscles

On many issues, from human rights to social mores, Israel's high court is well out in front of society at large. Israeli politicians now want to clip the court's wings.

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Tel Aviv, an apartment building from the Ottoman era on the edge of the Karmel market. The Sabbath is about to end, and a casserole is baking in the oven in the apartment of the Berner-Kadisch family. The three sons are playing in their rooms, while the parents drink tea in the living room.

The parents are Nicole, 44, an attorney, and Ruti, 45, an academic with a doctorate in Middle Eastern studies. The two women alternated having children, with the help of a sperm bank and a reproduction clinic. Their first son, Matan, was born in 1995. Ruti was his biological mother and Nicole adopted him, which is permitted in some states of the United States.

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Photo Gallery: Israel's High Court
Their problems began when they moved to Israel a year later. Both women had Israeli citizenship, but the consulate general in Los Angeles refused to recognize Nicole as the adoptive mother. The two women contested the decision in an Israeli court and, after 10 years, the Israeli Supreme Court recognized the adoption. The birth certificate of their youngest son, 6-year-old Segev, is lying on the coffee table in the living room. Nicole and Ruti are listed as his parents, under Israel's national coat of arms. The Interior Ministry issued the document only recently.

Once again, the Supreme Court was more progressive than the country. The court's ruling on the parenthood of Nicole and Ruti is only one of many sensational decisions in recent years. "If the Supreme Court didn't exist, who would safeguard democracy in Israel?" asks Ruti Berner-Kadisch.

Insisting on Compliance

The court takes an interventionist approach. For instance, it prohibited the country's attorney general from dropping rape charges against former President Moshe Katsav in return for a confession of other, lesser offences.

In the conflict with the Palestinians, the judges have resisted pressure from the military and the government and are insisting on compliance with human rights regulations.

Is it legal to use force on a Palestinian if he has information about an imminent terrorist attack? No, the high court ruled in 1999, when it imposed a torture ban on the military and the intelligence services. In 2006, the judges set narrow limits on the practice of preventive liquidation of presumed terrorists. Under the new rules, the targeted killings are only allowed if no civilians are harmed and there is no possibility of arrest. The Supreme Court has also issued several orders to move the security wall with which Israel protects itself against terrorists along its border with the West Bank. Arguing that there is no such thing as absolute security, the judges limited the Israeli government's ability to seize land owned by Palestinians.

"In no other country in the world has a high court dealt with issues of international law as much as it has in our country," says Aharon Barak, the former president of the Supreme Court. This is precisely why the judges have made so many enemies with their liberal administration of justice. For some rabbis, the court's rulings are nothing short of blasphemy. Some generals consider the judges to be a security risk, and politicians see them as rivals.

Doris Beinisch, 67, an elegant woman wearing gold earrings and a scarf draped over her shoulders, has been the president of the Supreme Court for more than three years. From her office, she has a view of the Israeli parliament, the Knesset, while the prime minister's office is on the other side. Beinisch points out that her office sits right in the middle, both physically and symbolically, between the legislative and the executive branches of government.

No Constitution

The families of Palestinian terror attack victims recently appealed to the Supreme Court to force the government to release the names of the Palestinian prisoners it intends to set free in exchange for Gilad Shalit, the Israeli soldier abducted by Hamas in 2006. Beinisch rejected the appeal.

It is only one of 12,000 cases the Supreme Court hears each year (by comparison, the US Supreme Court hears fewer than 100 cases a year). Every Israeli citizen can appeal to the court to raise doubts about government decisions or laws enacted by the Knesset. The "High Court of Justice" (known by the Hebrew acronym "Bagaz") also serves as a court of appeal for the lower courts.

The central problem, says Beinisch, is that Israel doesn't have a constitution. Although the 1948 declaration of independence expressly stipulates the creation of a written constitution, it hasn't been formulated yet -- in deference to the ultra-orthodox Jews, who refuse to recognize any constitution other than the Torah. This frequently gives the government and members of parliament an excuse to question the sovereignty of the highest court -- for political expediency, of course.

In addition, because there is no constitution, there is nothing that clearly states whether each citizen has certain inalienable rights. The country only has its so-called basic laws, which, like any other laws, can be amended with a simple majority. According to the basic law on "human dignity and freedom," Israel aims to be a Jewish state and a democracy at the same time. But what does this mean for its roughly 1.3 million Arab citizens?

Not Allowed for Arabs

Adel Kaadan, 54, lives in Baka al-Gharbiya, a small Arab city of 30,000 people halfway between Tel Aviv and Haifa. He wanted to move away years ago, he says, citing problems like bad roads, a lack of waste disposal services and asbestos in schools. He saw an advertisement for a new community, Kazir, which was being planned a few kilometers north of Baka al-Gharbiya. It sounded appealing: new roads, inexpensive land, his own house. But when Kaadan went to see the town council, he was told that Arabs were not allowed to move to Kazir.

"I thought I was a citizen of Israel," says Kaadan, who works as a nurse in a hospital. "In school, we were taught that discrimination on the basis of race, gender or religion was not allowed."

The Association for Civil Rights in Israel took on Kaadan's case. Eleven years and two trials later, Kaadan finally won the case, when the town of Kazir was ordered to sell him a piece of land. Meanwhile, the house is almost finished, and in six months Kaadan plans to move in, together with his wife and their five children. "It's good that the court exists," says Kaadan, "but why do you have to go through the trouble of going to court just to assert your rights?"

Even when it comes to the major conflict in the region, between the Palestinians and Israelis, the judges insist on compliance with human rights laws. In Nilin, for example, a small town in the West Bank. The security wall separates the village from the Israeli settlement of Hashmonaim -- and Palestinian farmers from their olive plantations. Every morning, the residents of Nilin protest against the wall, usually peacefully. On July 7, 2008, the military stopped the protestors and a few activists were arrested, including Ashraf Abu Rahma. The soldiers blindfolded him, tied his hands behind his back and let him sit in the sun for one-and-a-half hours.

Then He Shoots

"Suddenly something hit my right foot," says Abu Rahma. "I had the feeling that my leg was flying away from my body." He is sitting, smoking a cigarette, in the courtyard of the Amira family's house, at the entrance to Nilin. Journalism student Salam Amira, 18, is sitting next to him. She filmed the events of the day from her window, using a digital camera.

On the video, the Israeli commander holds down Abu Rahma while one of his soldiers points his gun at the Palestinian's feet. Then he shoots.

The Israel human rights organization Betselem published the video. A military judge merely reprimanded the soldiers for their "improper behavior" and suspended the commander from duty for 10 days. Betselem took the case to the Supreme Court, which ordered that both soldiers be punished more severely. The incident, the court argued, was a "serious deviation from the moral norms incumbent upon all soldiers in the Israeli army, particularly senior commanders."

"Although it is a Jewish court, it issued a fair verdict," says Abu Rahma. These words of praise don't come easy for Rahma, whose brother was killed when he was shot in the chest during a demonstration a few months ago. Journalism student Amira says that she was positively surprised by the verdict. Palestinian judges, she says, rarely demonstrate such independence.

'Illegal to Attack the Courts'

Israeli politicians, particularly the conservatives, feel that the court is too independent. To address this concern, the administration of Prime Minister Benjamin Netanyahu plans to propose a law that would limit the power of the judges on Jerusalem's high court in an important way: The court would no longer have the power to invalidate laws enacted by the parliament. The government also wants to supervise the selection of judges more strictly in the future.

The court's decisions often go too far for many Israelis, as well. Judge Beinisch has become a target of their indignation, so much so that she now has several bodyguards. In a hearing at the end of January, an older, balding man stood up and threw his shoe at the judge. Beinisch was hit in the head and fell, unconscious, from her chair. Although the man who had thrown the shoe was only expressing his dissatisfaction over his divorce decree, the opposition in the parliament claimed that the right wing, with its many reproaches of judges, had made the attack possible in the first place.

Ironically, this left Prime Minister Netanyahu with no choice but to express his solidarity with the judge. He called Beinisch and confirmed publicly: "It is illegal to attack the courts."

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Bob from Brooklyn, NY 02/16/2010
1. Israel's Supreme Court
I am an Orthodox Jew. However, if the facts in today's DER SPIEGEL concerning the cases brought before it are all correct, I must aqree with supporters of the Court. Banning the Court from nullifying illegal acts of the Knesset would allow all kinds of abuses, and if Israeli Arabs are citizens, they should have the rights of citizens. Period.
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