Human Rights: Israel's Supreme Court: Conservative or Liberal?

Washington Report on Middle East Affairs, April 2004 | Go to article overview
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Human Rights: Israel's Supreme Court: Conservative or Liberal?


Marwan Dalal, an attorney for Adalah, the Legal Center for Arab Minority Rights in Israel, spoke Feb. 4 at the Palestine Center in Washington, DC. He began by noting that the prevailing assumption within the American legal community and in American legal academia is that Israel's Supreme Court is a liberal court. However, he said, after close examination of the rulings of three leading Israeli Supreme Court justices, that assumption can be easily challenged. Not only has the court's record proven it to be conservative on issues dealing with the civil rights of the country's Arab citizens, Dalai stated, it has proven to uphold breeches of basic human rights when dealing with the Palestinians living in the occupied territories.

When compared to the Israeli government, however, the Israeli Supreme Court can reasonably be seen as liberal, he observed. Dalai was quick to note, however, that being compared to the Israeli government is not an adequate measure for libertarianism.

In order to establish that Israel's Supreme Court is not a "model of civil libertarianism," Dalai scrutinized the decisions of Justices Shimon Agranat, Meir Shamgar and Aharon Barak.

Dalal cited a 1953 ruling by Agranat, in which the justice reversed a government decision to ban a Communist Party newspaper, ruling that the ban was a violation of free speech, as having convincingly cast Agranat as a liberal. In 1953, however, Dalai pointed out, when Israel's Palestinian minority was subjected to military rule, there was no discussion of that in the Supreme Court. The Arab citizens of Israel continued to live under military rule until 1967.

"When Israel was celebrated as a classical democracy before 1967," Dalai noted, "it was a classical apartheid state." Although citizens, the Arabs were and still are treated much differently than Jewish Israelis.

Also in 1953, Agranat acquitted an Israeli police officer who shot and killed a Palestinian "infiltrator" in his custody. That decision, Dalal argued, contributed to the atmosphere in Israel that led to the 1956 massacre of Palestinian civilians in Kfar Kassem, when Israeli police killed several Palestinians who, unaware that a curfew had been imposed on their village, tried to return to their homes after a day's work.

Justice Shamgar, who presided from the mid-1970s to the mid-1990s, also acquitted an Israeli soldier in 1989 for the shooting death of a Palestinian motorist at an Israeli checkpoint. Eleven years later, in 2000, the same soldier was involved in the shootings that resulted in the deaths of 13 Arab citizens who were protesting Israel's harsh treatment of Palestinians in the occupied territories.

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