Conversation with the President of Israel’s Supreme Court

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Aharon Barak, the President of Israel’s highest court, came to Yale University to speak at a Morse college "tea". Yes, literally we had tea and cookies for him. His talk was titled " The Legal Framework of the Fight Against Terror: The Israeli Experience." Mr. Barak spoke about attempts to "balance" the rule of law and the "fight against terror." I had lots of questions for him. Since I was not "selected" to go to dinner with him, I had to contend with one question in public and one I managed to ask in private afterwards. Here is what I asked and how the highest legal authority in the state of Israel answered.

My public question was as follows. Mr. Barak, you mentioned how your court prohibited the Israeli military from "relocating" (your words) relatives of those who engage in violence unless the relatives themselves have direct involvement in violence. My question revolves around International law and the Universal Declaration of Human Rights. All these laws prohibit collective punishment. You did not mention home demolitions (of relatives for instance) or that such deportations are illegal per international law. The cases you mention are small; you failed to mention many other more significant breaches of International law. Six million of the nine million Palestinians are refugees or displaced people, over a quarter of Palestinians who are Israeli citizens are also by Israeli law considered "present absentees."

My question is for your reaction to this statement from Amnesty International about Israeli laws:

""In Israel for example, several laws are explicitly discriminatory. These can be traced back to Israel’s foundation in 1948 which, driven primarily by the racist genocide suffered by Jews in Europe during the Second World War, was based on the notion of a Jewish state for Jewish people. Some of Israel’s laws reflect this principle and as a result discriminate against non-Jews, particularly Palestinians who had lived on the lands for generations. Various areas of Israeli law discriminate against Palestinians. The Law of Return for instance provides automatic Israeli citizenship for Jewish immigrants, whereas Palestinian refugees who were born and raised in what is now Israel are denied even the right to return home. Other statutes explicitly grant preferential treatment to Jewish citizens in areas such as education, public housing, health, and employment"" ("Racism and the Administration of Justice", Amnesty International report, 2001; also found at http://www.amnestyusa.org/stoptorture/racismreport.pdf )

Everyone has laws, even Nazi Germany had laws but there are international norms and international law which transcend local law. Barak started by repeating his statements that in a democracy [sic], there should be a balance between the demands of human rights and demands of society. He said his court looked at home demolitions and determined that they were "legal." He said that is the decision they reached because the perpetrators lived there before they killed themselves. Since they care about their families, the government has decided that this would be a deterrent to destroy their homes. He said he could not comment on the other issues other than to say the law of return is why Israel was established and indeed it gives any Jew in this room or anywhere the right to just show up and be considered a citizen (unless they pose a threat to the society). A student asked him about the fact that judges in apartheid South Africa resigned rather than enforce apartheid. He answered that many judges also remained and did their judicial duties (!).

After the public part of the talk, I had a chance with him for a few minutes and so I asked about the Israeli supreme court decision of 1951 which told the government to allow Palestinian villagers to return to the two villages of Iqrit and Bir’im (see http://www.badil.org/Refugees/Documents/2000/1-00.htm). For 52 years, the government refuses to implement this decision. Barak said that he knows the case well and he thinks they will be allowed to return "after we sign the peace treaty." I answered that this is unusual (hypocritical) as these are ostensibly Israeli citizens and he had earlier said that any one who is within the border is treated equally. Here he was whisked away by Mr. Weil, master of Yale’s Morse College who arranged this event.

Israeli Prime Minister Yitzhak Shamir once said: "The Jewish State cannot exist without a special ideological content. We cannot exist for long like any other state whose main interests is to insure the welfare of its citizens" (New York Times, 14 July 1992). Indeed that is the source of all the conundrums and Barak and his court have really little control. The violence is but a symptom of this disease whose cure was obvious in South Africa and is just as obvious in Israel/Palestine.

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