The Foundation for Constitutional Democracy


A Perfidious Ruling of Israel’s Supreme Court

Filed under: Foreign PolicySupreme Court/JudicialCURRENT ISSUES — eidelberg @ 8:46 am Edit This

On December 12, 2006, Israel’s High Court of Justice ruled that Palestinian residents of the “West Bank” and Gaza could file lawsuits against Israel for damages incurred in IDF operations, provided that the operations in question did not take place as part of a clearly defined “war.”

The court ignored or trivialized the fact that the elected leaders of these Palestinians, consistent with their PLO Constitution, are explicitly waging a relentless war against Israel. For further evidence, recall the January 2006 election, when a large majority of the Palestinians voted for Hamas, whose Covenant vows genocidal war against Israel. Today, Hamas is a proxy of Iran whose commitment to Israel’s annihilation is broadcast daily by Iranian president Mahmoud Ahmadinejad, cheered by the Palestinians who cheered Saddam Hussein and danced on their rooftops as Scud missiles fell on Tel Aviv.

Nevertheless, the court, headed by retired Supreme Court president Aharon Barak, nullified an amendment to the Civil Wrongs (Liability of the State) Law that was passed by the Knesset on July 27, 2005, granting the State broad immunity from lawsuits filed by Palestinian “civilians” for damages resulting from IDF actions against Palestinian terrorists.

The court’s ruling was vintage Barak—another manifestation of his artificial and pernicious application of international law to the embattled Jewish State of Israel. Barak’s secular, left-wing agenda continues to dominate and emasculate this country. The ultimate goal of that agenda is to erase Israel as Jewish state by transforming it into a conventional “state of its citizens.”

In response to the court’s ruling, a friend of mine, a legal consultant in numerous international lawsuits, informed me of some shocking implications of that ruling. This prompted me to convey not only his warnings (with permission), but also to further demonstrate the Supreme Court’s subversive tendency.

In lifting the immunity of the State from civil lawsuits filed by Palestinians claiming damages resulting from IDF actions, the court automatically lifted the immunity of soldiers and officers (as well as public officials) involved in such actions. Israeli soldiers can the more readily be sued for damages in countries whose courts, bolstered by the ruling of Israel’s own Supreme Court, decide to apply international law against these Israelis—something a U.S. federal court refrained from doing by dismissing attempts to sue former Israeli chief of general staff Moshe Ya’alon for alleged war crimes. Otherwise, the costs and harassment involved in such lawsuits—a bonanza for the legal profession—can financially destroy a soldier and his family, on the one hand, and provide aid and comfort to Israel’s enemies, on the other.

Although the court’s ruling also makes Israeli soldiers and officers (and public officials) individually liable for damages incurred during the expulsion of Jews from Gush Katif and other Jewish communities, the court would probably dismiss such suits on the ground that Israel’s government has already provided for the compensation of these Jews.

In any event, since Israeli servicemen are now liable for damages resulting from their carrying out the orders of the government, thoughtful soldiers may think twice about obeying such orders rather than face costly lawsuits both at home and abroad.

On the other hand, since such lawsuits and their costs would obviously be reported by the media, this will surely discourage many Israelis from enlisting in the IDF. What is more, many Israelis will be prompted to leave the country, disgusted with a government that abandons them to the wiles of their enemies even in the courts of Israel. The Supreme Court’s ruling in this matter is perfidious.

Why indeed should any thinking Israeli want to serve in an army or air force ordered to attack Arab terrorists who may be concealed or sheltered by Arab “civilians,” when such military service may pauperize him, thanks to Israel’s Supreme Court?

Bad enough, nay, outrageous, that the government releases thousands of terrorists whose capture required Israeli soldiers to risk and often lose their lives. But for the High Court of Justice to hand down a ruling which can only aid and comfort the enemy—Palestinians who overwhelmingly and demonstrably identify with Ahmadinejad’s goal to wipe Israel off the map—this is more than outrageous. It is perilously close to treason as defined in Article III, Section 3, of the American Constitution.

Of course, we are in Israel, where treason, as defined by Section 99 of the Penal Code, has become respectable, and where judges do not have to fear impeachment.