An
Officer In Court
By Uri Avnery
01 September, 2004
Gush-Shalom
When
I came out of the beautiful Supreme Court building, I was feeling depressed.
I had listened for
hours to proceedings on a number of applications concerning the separation
wall. I was especially interested in the part of the wall that is threatening
to ruin the lives of the residents of a-Ram. There, it will be remembered,
the planned wall runs the full length of the Jerusalem-Ramallah road,
which passes through a-Ram. The strip along the middle of the road will
be displaced by an 8-meter high concrete wall that will cut off most
of the towns inhabitants from their work places, schools, hospitals
and even cemetery.
Up to now, the building
of this wall has been held up by the Supreme Courts temporary
injunction. This has now been lifted, and next week the cranes will
start erecting the concrete slabs that have been lying on the ground
along the road. They will shut out the world beyond.
At a certain stage,
the three judges headed by Chief Justice Aharon Barak
called the lawyers of the two sides to approach the bench and explain
the map to them. The attorneys, including a military lawyer in uniform,
came forward. But not they alone. With them was a civilian who is no
lawyer a kippah-wearing settler called Danny Tirza, the chief
of the Ministry of Defense wall-construction department.
This Tirza became
famous last month, when the Supreme Court announced that the government
must change the path of the wall. On leaving the courtroom, Tirza went
straight up to the TV cameras and declared that from now on the Supreme
Court will bear the responsibility for every Jew murdered. This impertinent
remark caused a public uproar and Tirza was officially rebuked by his
bosses.
That did not hinder
him from approaching the bench now and lecturing the judges at length
about the necessity of building the wall at once. It did not occur to
anyone to invite the mayor of a-Ram, Sirhan Salaimeh, who was sitting
in the first row, to put his case. A settler yes. A local Palestinian
no.
What happened next
was even more disturbing. At the request of the government attorneys,
a senior commander of the Border Police, a Druze as it happens, was
asked to explain to the judges why a delay in the building of the wall
will result in the murder of Jews. Indeed, just a few days ago a terrorist
was found hiding in a mosque in a-Ram. (May God forgive me for having
a twisted mind, but this story aroused my suspicions from the first
moment. This arrest, just a few days before the court hearing, came
at a moment just too convenient for the security services.)
Generally, only
lawyers may address the Supreme Court. It is quite unusual for anyone
else to be allowed to speak there. The officers long speech, without
the opportunity of a rebuttal, is even more unusual. It shows that even
in the 57th year since the founding of the State of Israel, military
officers enjoy a special standing in the Supreme Court.
The officers
message was quite simple: delay in the building of the wall can facilitate
terrorist attacks. That is to say, if the court causes more hold-ups,
it will be responsible for the consequences. Indirectly, in a more sophisticated
way, this officer repeated the crude blackmail of Tirza the settler.
The final result:
the court caved in under the pressure and withdrew the delaying order.
I was sad but not surprised, I am sorry to say.
True, the Supreme
Court is an oasis in the Israeli landscape. Even architecturally. While
not very impressive from the outside, it is beautiful inside. Unlike
the pompous, monumental style that is common to most superior court
buildings in the world, our Supreme Court is a human-sized, airy building,
with open spaces and interior courtyards reminiscent of the Alhambra
in Granada. There are interesting plays of light and shadow. It is surrounded
by a lovely garden, open to all. The halls, too, are convenient and
pleasant. Security checks are minimal and unusually polite.
More importantly,
the court is also a political oasis. At a time when democracy is degenerating,
the government cynical and the Knesset behaving irresponsibly, the Supreme
Court is the last fortress. Since Israel does not have a constitution,
the Supreme Court has taken upon itself the task of blocking laws that
contravene the basic values of Israeli democracy. As attested by public
opinion polls, the court enjoys the highest prestige among public institutions
(with politicians and the media at the bottom.)
If so, then what
happened this time?
Aharon Barak once
explained to me his basic guiding principle: The court has no army of
its own. It cannot use force to make its decisions stick. It is completely
dependent on the trust and support of the general public. Therefore,
it cannot go too far beyond what the public can stomach.
In security matters,
the situation is even more delicate. True, the days are gone when the
court automatically stood at attention when an army officer appeared
before it. But it is still possible to impress the court unduly with
security arguments. Aharon Barak himself is a Holocaust survivor: as
a child he was spirited out of the Warsaw ghetto, hidden under sacks
of potatoes in a cart. His receptivity to security arguments is especially
high.
Against this background,
it is worth comparing the advisory opinion of the International
Court of Justice in The Hague with the decision of the Supreme Court
in Jerusalem. The Hague judges decided, to put it simply, that Israel
does have the right to build a wall, but only on its own land, bounded
by the pre-1967 Green Line. It has no right to build it on occupied
land, the more so when its intention is to annex settlements that are
themselves illegal under international law.
The Israeli court
went through all kinds of contortions and decided that exaggerated
harm to the Palestinian population must be avoided, but it accepted
the right of Israel to build the wall on Palestinian territory if this
is necessary for security reasons namely, to protect
Israeli settlements. Thus the court confirmed, indirectly, that it considers
the settlements legal.
That creates a delicate
situation. In the course of the hearing, Barak suggested that both sides
the government and the Palestinian applicants submit written
opinions about the decision of the International Court. It is
impossible to avoid dealing with it any longer, he said. Clearly,
he is in a dilemma: as a judge and renowned professor of law, Barak
has a high international standing, which he is loath to put at risk.
Therefore, he is interested in avoiding a clash between his court and
the Hague judges.
The decision about
the a-Ram wall has an interesting aspect that has drawn little attention.
The restraining order was temporary, and so is the decision to suspend
it. Barak announced that he is allowing the government to start building
the wall, but that, if the court decides in the end that this path of
the wall is illegal, it will be necessary to take it apart and move
it somewhere else.
Thus, for the first
time, it was spelled out that the wall is, in reality, a temporary structure.
The crane that puts the pre-fabricated concrete slabs in place can,
with the same ease, raise them up again and take them away.
This may not be
much comfort for the inhabitants of a-Ram, whose lives and businesses
are in the meantime being ruined, but it is encouraging nevertheless.
It repeats what we have been saying at all our demonstrations: that
this monstrosity resembles the Berlin wall. Much as the German wall
suddenly crumbled, this one, too, will come down.
This was tested
yesterday, at a demonstration in Abu-Dis, not far from a-Ram. Israelis
and Palestinians came to meet Arun Gandhi, the grandson of the legendary
Mahatma. Abu Ala, the Palestinian Prime Minister, himself a resident
of Abu-Dis, delivered the main speech. Later, we approached the wall
and hit it symbolically with a hammer. When my turn came, I noticed
that even with such a small hammer it was possible to break off little
chunk. A really big hammer could open a hole.
More importantly,
during one of the speeches we saw that we had lost the attention of
our audience. All heads were turned to something going on behind us.
There, in an incredibly daring exploit, one of the demonstrators climbed
the steep wall, in spite of its smooth surface, using only his bare
hands and heels. After reaching the top he threw a rope down, and a
number of other followed him up and unfurled a Palestinian flag.
So it can be done.
Not by a pregnant woman on her way to hospital, not by children on their
way to school, nor by a family on its way to visit relatives, but a
trained suicide bomber can cross the wall at night. There go the security
arguments.
By the way, the
Berlin wall was smashed and the debris sold as souvenirs to foreign
and local tourists. A really sharp operator would now be applying for
a concession to sell off chunks when this walls time comes.