When Ehud Barak designated IDF general Yair Naveh to be deputy chief of staff, Yesh Gvul filed a complaint seeking an injunction barring Naveh from taking the position because of his approval of targeted assassinations of unarmed Palestinian militants. It claimed, based on reports by Uri Blau and documents leaked by Anat Kamm, that these murders violated a Supreme Court ruling. In addition, Naveh flagrantly dissed the Supreme Court itself in remarks he made to Uri Blau.
So for those of you who admire the Supreme Court as the highest expression of Israeli democracy, may want to reconsider when you discover that the Supreme Court, in a ruling written by Judge Edna Arbel, rewarded Naveh for his insolence by dismissing the Yesh Gvul petition, though it did have some mild criticism for Naveh’s effrontery. This means that the one time when the Supreme Court had an opportunity to weigh in on the question of what these killings did violate explicit Court rulings barring such acts, it chose to ignore the opportunity and punt. A true mark of judicial courage and the flourishing of Israeli democracy.
The lone Israeli Palestinian judge levelled criticism on Naveh about his crudities:
We must focus on the fact that this individual who filled a high-level position in our society assumes for himself the freedom to express himself in a fashion which alludes to his disparaging views of the judicial system and the principle of the rule of law. He should remember that his nomination to a public role, let alone a very high level role, conveys on his not just rights, but obligations which continue even after his role is completed. One of those obligations is to serve as an example to society and to soldiers serving under his command in honoring the rule of law in general and the decisions of the court in particular.
The statements of the respondent are problematic not only because they encourage defiance of the rulings of the court and lack of faith by society in the judicial system and the principle of the rule of law which obligates every citizen.
To which I reply, that’s all very nice and perhaps this lone judge knew he had no support among the others for overturning the appointment, but this is little more than a slap on the wrist. The decision overall rewards impunity and the words above are worth little unless the judges were willing to back them up with action. And they weren’t.
The truth is that only on very rare instances is the Court prepared to do the job that such courts do in other true democracies. Concerning security matters. the Israeli version almost never questions the national consensus and the State’s position. The truth is that the Court gets good press it hardly deserves and gets little of the criticism it does deserve. That’s because apologists like Tom Friedman are busy proselytizing for Israeli democracy while ignoring its flagrant flaws.
It is clear to almost any reasonable observer that the Naveh killings violated a Supreme Court ruling prohibiting assassinations when the victim was unarmed & could be apprehended without murder; or when civilians would be in the line of fire. Both conditions were violated in this case. The Court had the evidence clearly in front of it and could have ruled so that similar future IDF procedures would ensure consistency with judicial decisions. Instead, it chose to defer to the military because, in Israeli society, the military always knows better. All that this decision has taught IDF generals is that they should keep their mouth shut when they intend to flagrantly violate court decisions.
In other situations the Court behaves no differently. Years ago it ordered the Apartheid Wall to be moved in certain portions. Yet the IDF has so far stalled without paying a price for its obduracy.
On a related note, now that Yoav Galant‘s appointment has been vacated by Barak and Bibi, the government is put in the weird and dysfunctional position of not having any fully vetted or kosher candidate. Knesset members are up in arms and Bibi/Barak’s plan to appoint Naveh as interim chief of staff has run into opposition. You can’t appoint a chief of staff without vetting the name with the Turkel Commission. And Naveh’s name hasn’t been vetted. So the government’s plan to appoint Naveh bypassing Turkel has drawn fire. Now there are calls to extend the current chief of staff’s term as a stopgap measure. But Barak hates Ashkenazi with a passion and wants him gone. It’s a big mess and a perfect reflection of the dysfunction of the current government.