Israel’s Supreme Court Confirms IDF General’s Impunity
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.
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Retired Supreme Court Judge Turkel is still defending the appointment of Galant. He said that “Galant was rejected because of media lashing.” and blamed the political echelon of government, namely Netanyahu and Barak. Turkel’s remarks indicate that his role is simply a rubber stamp and that no information would have prevented the appointment. He said “It is inconceivable that a man that served his country faithfully for so many years and through so many different roles would be deposed in this manner.” http://www.jpost.com/Defense/Article.aspx?id=206381
Turkel’s assignment of blame seems to be correct, since the High Court dismissed the requests for temporary injunctions in both the Galant and Naveh proceedings. In the Naveh case the Attorney General argued that the Court should dismiss the petition because it had “dismissed similar claims against other appointments in the past.” http://www.jpost.com/Defense/Article.aspx?id=206478 Even in the Galant case, the AG argued that the final decision regarding whether Galant could serve as chief of staff rested with the cabinet, not the Court. http://www.jpost.com/Defense/Article.aspx?id=206259
There is an abundance of prima facie evidence available from the public record which would lead a reasonable person to conclude that the IDF and the Government have ignored the Court’s rulings on “Outposts”, “bargaining chips”, the “Neighbor policy”, “torture”, “targeted killings”, & etc. In cases where there is a “genuine dispute” regarding a material fact that might effect the outcome of a case under governing law, summary judgment is not appropriate. So, the Court went out of its way to rule on the merits of the petition and held that the targeted killings were consistent with the Court’s earlier decisions.
Of greater doctrinal concern is the proposition which flows from Judge Arbel’s official ruling here that the High Court “could not draw from the existent law a sweeping rule on targeted killings.” The Geneva Conventions provide that “violence to life and person, in particular murder of all kinds” and “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” are acts that “remain prohibited at any time and in any place whatsoever”.
Targeted killings are acts that fall within the Article 7 & 8 criminal jurisdiction of the ICC. Many of the State parties to the Geneva Conventions and the Rome Statute have recognized the State of Palestine within the 1967 borders. The government of Palestine has accepted the jurisdiction of the ICC in accordance with article 12(3) of the Rome Statute. So, it would not be unreasonable for the Office of the Prosecutor to investigate the possibility that Judge Arbel and the other High Court Justices have “contributed to the commission or attempted commission of such a crime by a group of persons acting with a common purpose” and with “the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court”. http://untreaty.un.org/cod/icc/STATUTE/99_corr/cstatute.htm
Exactly right. Turkel is a servant of the military intelligence community as shown by his lackeyish performance on the mavi marmara commission. He might as well have been comatose as SHabtai Rosenne was…
There has been talk of the ICC accepting jurisdiction in the matter of Cast Lead. But I think it’s a political hot potato. I’d love to see them put Israel on notice that henceforth their every move will be watched w. the understanding that future violations will definitely be accepted by the ICC.
The decision to investigate will be up to the Pre-Trial Chamber. Under the terms of the Statute it cannot prejudice future investigations or prosecution by the Court.
The arguments raised so far are somewhat nonsensical, i.e. that Palestine does not fulfill the criteria contained in the 1933 Montevideo Convention or the (undefined) term “State” in article 12(3) of the Rome Statute. Many, if not most State parties to that convention have accepted the legal personality of the State of Palestine “with all of the rights and duties determined by international law.” Under the express terms of that Convention, those determinations are irrevocable. There is no compromissory clause or dispute resolution regime that would permit a Court to overturn them.
Many of the “Montevideo” countries are also State parties to the Rome Statute. It contains a safeguarding clause (Article 98) regarding any agreements the member states might conclude with the State of Palestine concerning immunity or extradition. It is highly unlikely that the term “State” in Article 98 has a different meaning than the same term in Article 12(3). http://untreaty.un.org/cod/icc/STATUTE/99_corr/cstatute.htm
Another argument is that it is not the role of international courts, including the ICC, to undertake a unilateral decision about the matter of statehood. But a determination of the existence of statehood is a necessary preliminary to an investigation and prosecution of the crimes under the Court’s jurisdiction. For example, in the Bosnia genocide case, the ICJ had to determine State responsibility in accordance with Article IX of the Convention. It was necessary for the Court to first determine when States ceased to exist and when new ones came into existence in order to determine who had “effective control” over the militias which committed the acts.
In similar fashion, the ICC will have jurisdiction over the crime of aggression. An “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” An individual cannot incur responsibility for this crime in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State.
RE: “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.” -the lone Israeli Palestinian judge
ELOQUENTLY PUT ANOTHER WAY – Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States (1928):