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Court Says Move That Wall! By: Steven Plaut
FrontPageMagazine.com | Wednesday, July 07, 2004

There has been an international uproar over the security wall that Israel is building to keep the Palestinian terrorists from murdering any more of its civilians.  Apparently, gated neighborhoods should be only for liberal yuppies and not for Jews in Israel.  Around 1400 Israelis have been murdered, many of them children – and this just since Yassir Arafat and his PLO signed the Oslo "peace accords" foreswearing all violence and use of force “forever.”  The Israeli attempt to prevent any further murders through the erection of the fence has been denounced as aggression and as a violation of human rights.  The fanatic International Solidarity Movement, which is run by the Palestinians has been leading the assault against the fence and those building it, including through violence.  And now they have a bizarre new ally, Israel’s Supreme Court

Americans are used to complaints about imperious justices, but the American Supreme Court is a bastion of moderation and caution in comparison to Israel's judiciary, as Robert Bork has noted.  And Israel's Supreme Court has just joined the jihad against the "Wall."

From Oslo to the Second Intifada, which brought Ariel Sharon into office, Israeli policy towards terrorist atrocities was little more than turning the other cheek.  Leftist Prime Minister Ehud Barak and his predecessors generally responded to terror attacks, bombings, and rocket assaults against Israel by sending the air force to bomb empty buildings in retaliation, in many cases after warning the terrorists in advance to make sure none got injured.


Sharon made two important changes in policy.  The first was to agree to implement the policy of a "security fence" to be built inside the West Bank, a policy that the Left had been promoting for years as a panacea against terror.  The Left liked the idea because they thought the fence would establish Israel's 1949 ceasefire lines as the borders between Israel and the Palestinian terror state they were determined to ratify. 


Most people have probably failed to take notice of the fact that during recent months the Palestinian violence has dropped off dramatically. This is not because of any decision by Arafat and his henchmen to abandon terror, savagery, and war.   The media have been falsely attributing the drop in the number of Palestinian atrocities to the effect of the "fence."  They are wrong.  The fence is not even built yet.  Only segments of it exist, and it is easy and unchallenging simply to walk or drive around the existing segments.  The simple fact of the matter is that no physical barrier yet really stands between Israeli cities and the terrorists.  So why the sharp drop in suicide bombings and similar attacks against Israeli civilians?


The answer is the other major change in policy by Sharon.  Sharon ordered the Israeli military and intelligence services to liquidate the leaders of the terrorist organizations, other than Arafat and his immediate sidekicks.  Lower PLO officials and military commanders of all the terror squads have been hit and killed, over and over since the new policy was put in place.  Just last week, Israeli troops decapitated all three main terrorist organizations (or what the CNN and BBC call "militants and activists") operating out of the West Bank city of Nablus. It was an operation resembling the climax of a Godfather movie. Israel has also repeatedly killed the heads of the "Hamas" movement, which was left in such desperation that it refused even to name its next chief, lest he be targeted as well.


If any proof were needed that the drop in the carnage has nothing to do with any newfound inclination on the part of the PLO or its minions to resolve conflict peacefully, the PLO has responded to the decimation of the terrorist command structure by escalating rocket attacks on Jewish civilians from the Gaza Strip.   Gaza has a set of tunnels and buried arms factories that even the North Koreans would be proud of.  They are supplied via the smuggling tunnels into Gaza from Egypt, which all of those International Solidarity Movement volunteers from America are trying their best to defend and to prevent Israel from bulldozing.  The late Rachel Corrie, who has become the patron saint of these abettors of terrorism, died while trying to stop an Israeli earth mover from destroying one such tunnel, positioning herself where the driver could not see her.


The PLO and its affiliates have fired over 300 "Kassam" rockets into Jewish civilian areas.  Most do little damage, but last week one landed in a kindergarten area and killed a four-year-old boy and his grandfather.  The boy had been born only after his parents had undergone 15 years of fertility treatment. There were other rocket casualities this week as well. Let us emphasize that these are all rockets being fired into Israeli civilian areas within its pre-1967 borders, and not into any parts of the so-called "occupied territories." The rocket attacks should put to rest any delusions that simply building a fence will end the Palestinian barbarism and terror.  Last week's Kassam attacks prove that the bloodshed cannot be controlled unless Israel also is on the ground and in control, even on the other side of any security fence it builds!


Having noted the doubts about its effectiveness, nevertheless few Israelis would question the idea that the "fence" contributes towards containing and suppressing the Palestinian terror, at least up to a point.   Few, besides the Supreme Court justices, that is.


Israel's Supreme Court justices are not elected and cannot be impeached.  They are chosen by a non-elected panel, which itself consists by and large of sitting justices.   Like Britain (whose judicial system Israel inherited when it became independent), Israel has no formal, written Constitution.  Instead, its court system operates on the basis of legal precedent.  The Israeli Supreme Court has been out of control for many years. There have been quixotic attempts to rein it in.  The Chief Justice and many of his colleagues openly endorse the anti-democratic doctrines of "judicial activism", which essentially means judicial tyranny.


The justices invent for themselves laws and powers, including the power to negate and revoke laws passed by Israel's democratically-chosen parliament, the Knesset.  The Chief Justice has repeatedly appealed to "enlightened opinion" in his pronouncements and rulings, including those that over-ride parliamentary decisions.   The Court has repeatedly made anti-religious rulings and established "rights" that the parliament itself would never countenance.  The Court has literally revoked laws passed in the parliament by large majorities on the basis of its own dubious interpretation of assorted "basic laws", themselves passed by tiny majorities in the parliament, claiming these "basic laws" establish super-parliamentary constitution-like powers for the Court that allow it to trump the will of the voter.


In general, the Supreme Court justices in the past have restricted their imperious interventions to civilian areas, letting the military and the executive branch make their own strategic and policy decisions regarding security matters.  For example, it rejected attempts by leftists to petition the Court into ordering the military and the prime minister to stop the targeting of terror leaders.  But this week, the Supreme Court lost all semblance of restraint and went after the "fence."


The Supreme Court joined those on the Israeli left who oppose the specific positioning of the "fence."  The Court ordered the government to change the "fence" and build it along lines that would be less effective in protecting Israeli civilians, because the new lines would be less disruptive for Palestinians.   Disrupting Palestinian activity, especially terrorist activity, of course is the whole point of the fence.   The Court was putting the avoidance of inconveniencing Palestinians ahead of defending the rights of Israel’s children to live.  It now plans to rule that several other segments of the fence are illegal and need to be moved to positions favored by the judicial tyrants.


Like so many previous Israeli Court rulings, this one had no basis in Israeli law.  There is no Israeli law being violated by the existing route of the fence and there is no law granting the Court justices powers as official surveyors or state geographers.   How would the Court know whether there are persuasive military considerations for the lines for the fence the government wanted?  None of the judges are military experts.  Who gave the Court the power to second-guess the army?


The only official excuse for the Court ruling was that the "fence" somehow was in violation of "international law."   One does not know whether to laugh or cry at that. International law?  Twelve years of Palestinian nonstop terror have also been violations, not only of international law but of the Oslo "peace accords" themselves.  Since when does international law rule out acts of self-defense against terrorist attack and aggression?   Who says Israel should be the very first state on the planet, rather than (say) the ninth or tenth, to accept and abide by the arbitrary dictates of "international law."  Even the judges at the International Court of Justice, sitting behind their own security fence in the Hague, have yet to declare Israel's fence in violation of "international law." Even some from Israel's Left have denounced the Israeli Court ruling.


The real effect of the Supreme Court’s ruling may be to draw Israel into a constitutional crisis.  There are already efforts in the parliament to "bypass" the Supreme Court and to put the judicial tyrants in their proper places.  What would happen if the parliament now were to approve the old route of the "fence" the justices just ruled as illegal?   What would the judges do – call the cops? And whom would the cops obey?


Such a "Mexican standoff" might be just what Israel needs.  It has been brewing for many years.  The parliament should not rest at tweaking the Court's nose but should aggressively seek to democratize the Israeli Court.  Adopting impeachment of Court justices via ballot initiative or parliamentary vote would be a significant step in the right direction.

Steven Plaut is a professor at the Graduate School of the Business Administration at the University of Haifa and is a columnist for the Jewish Press. A collection of his commentaries on the current events in Israel can be found on his "blog" at www.stevenplaut.blogspot.com.

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