A War Without the Fig Leaf of the High Court of Justice

Time will tell if the conduct of the current war in Gaza without a cover from its top court will pay off for Israel.

The war in Gaza continues, and for the first time in the history of Israel’s wars in many decades, the High Court of Justice is not in the picture, not even in appearance.

The few petitions submitted by human rights organisations were also rejected: a petition demanding the cancellation of a temporary order allowing the worsening of overcrowding in prisons in view of the fast increase in the number of Palestinian detainees; a petition regarding the whereabouts of detainees from Gaza and a petition regarding the evacuation of Al Quds Hospital; The High Court of Justice even rejected petitions to allow demonstrations against the war in Arab cities. Only one petition regarding a protest in Tel Aviv succeeded but not thanks to the judges – the police retracted its refusal to allow the protest without a ruling.

In their dismissal decisions, the judges mainly emphasised that this was a unique emergency situation for Israel. Journalist Avishai Greenzeig rightly published an article in the Israeli newspaper Globes with the title “The political, military and legal echelons managed to join hands in the war”.

Minister of Justice Yariv Levin unintentionally helped the High Court of Justice to emphasise to the Israeli public its patriotism, non-interference in the conduct of the war in Gaza and in security matters in general. 

This happened when Minister Levin falsely claimed in an interview on the right wing Channel 14 that the judges of the Court “tied our hands in ability to fight” when they determined that “it was impossible to shoot anyone approaching the fence”, as he tried to accuse the judges of being responsible for the massacres and kidnappings committed by Hamas on October 7.

The spokesperson for the courts responded that “in 2018, following violent events that took place near the perimeter fence on the border of the Gaza Strip, a petition was submitted to the High Court of Justice in which it was claimed that the IDF’s rules of engagement, which includes live fire in some cases, is illegal. The petition was rejected unanimously. 

The Court noted in the ruling that the scope of its intervention in issues of this kind is limited and extremely narrow, and in any case, there is no basis for the claim that the rules of engagement were changed due to the High Court of Justice’s ruling.”

From the response of the spokesperson of the courts it may be implied that the judges of the High Court of Justice approved the content of IDF’s rules of engagement, but the truth is that the they did not even read at the confidential rules and the additional confidential material since the petitioners objected to this (this is stated in section 25 of the ruling).

Contrary to the claims of Minister Levin and other supporters in Israel of reducing the powers of the High Court of Justice, in terms of real protection of the human rights of the Palestinians of the West Bank and Gaza Strip, the court has never really been an address, and except in rare cases its judges have generally refrained from interfering in the decisions of the security establishment and the government. On the other hand, from the point of view of the State of Israel, it seems that the court did serve as an effective fig leaf.

A telegram dated January 25, 1993, sent by an Israeli envoy in London, Gideon Meir, to the deputy director of the European region at the Ministry of Foreign Affairs in Israel, reveals how the fig leaf of the High Court of Justice worked in practice.

Meir informed that he met with the director of the Middle East region at the British Foreign Office, and that the Americans and the British are acting on Israel’s request to postpone a discussion in the UN Security Council (UNSC), before the High Court of Justice’s decision on the petitions filed by the Association for Civil Rights in Israel and others against the legality of the forced deportation of Hamas militants to Lebanon.

The British diplomat explained that they were able to postpone the discussion in the UNSC and that Britain sees three possible scenarios following the High Court of Justice ruling: a decision regarding the illegality of the deportation that will resolve the problem, a decision regarding the legality of the deportation with different interpretations that will make it easier for the Israeli government to change direction, and a decision that will confirm unequivocally the legality of the deportation.

The British diplomat explained that “in the last two scenarios, he assumes that it will not be possible to prevent an immediate meeting of the UNSC.”

Meir’s response to the British diplomat was nothing short of amazing, since even though he represented a government that was fighting in the High Court of Justice for the legality of its position, he claimed that even if there is indeed an unequivocal decision by the court supporting the legality of the deportation, “it would be better to allow an additional waiting period to allow the parties to rethink their steps.”

That is, while one hand of the government was fighting in the court to defend its position and dismiss the petitions, the other hand used the court and petitions for diplomatic purposes and also tried to use the possible rulings as a ladder to get off the tree. 

The Israeli government did “horse-trading” in the UNSC through the fig leaf of the High Court of Justice.

Time will tell if the conduct of the current war in Gaza and the continuation of the occupation of the West Bank without the fig leaf of the High Court of Justice will pay off for Israel and not only hasten the arrival of Israelis as defendants at the International Criminal Court in The Hague.

On the other hand, from the point of view of the Palestinians, it is not certain that the removal of the fig leaf of the High Court of Justice will help them, as the Israel has additional tools to prevent their success in promoting proceedings and justice in international courts.

Eitay Mack is an Israeli human rights lawyer and activist.

This article first appeared on the Hebrew media platform The Seventh Eye

Modi Speaks to Palestine Authority President, Condoles Deaths in Hospital Blast but No Call for Ceasefire

“Shared our deep concern at the terrorism, violence and deteriorating security situation in the region. Reiterated India’s long-standing principled position on the Israel-Palestine issue,” the prime minister said.

New Delhi: Two days after an explosion at a Gaza hospital killed hundreds, Prime Minister Narendra Modi spoke with the Palestinian Authority president Mahmoud Abbas and reiterated India’s “long-standing” position on the Palestinian cause.

While Modi expressed condolences for the loss of civilian lives and the deteriorating situation, he didn’t make any mention of the need for a stop or for a ceasefire.

After Hamas’s invasion and attacks on October 7 killed over 1,200 people in Israel, mostly civilians, Israel has conducted counter-strikes in Gaza, which has left over 3,000 dead.

On Tuesday night, a catastrophic explosion at Gaza City’s al-Ahli Hospital killed 471 people, as per the Palestinian health ministry. Hamas and the broader Arab world attributed the attack to Israel. Tel Aviv, however, claimed that a faulty rocket misfire by a Palestinian militant group was behind the explosion, a position supported by the United States.

The Indian prime minister had spoken to his Israeli counterpart Benjamin Netanyahu last week to convey “solidarity”. 

After speaking to the Palestinian Authority president on Thursday, Modi wrote on X (formerly Twitter) that he conveyed his condolences at the loss of civilian lives at the Al Ahli Hospital in Gaza.

“We will continue to send humanitarian assistance for the Palestinian people. Shared our deep concern at the terrorism, violence and deteriorating security situation in the region. Reiterated India’s long-standing principled position on the Israel-Palestine issue,” he wrote.

Without ascribing any blame for the attack, Modi had tweeted on Wednesday afternoon that he was “deeply shocked at the tragic loss of lives at the Al Ahli Hospital in Gaza”.

Expressing condolences to the bereaved, Modi posted, “Civilian casualties in the ongoing conflict are a matter of serious and continuing concern” and stated that those “involved should be held responsible”.

Echoing the prime minister, the Ministry of External Affairs (MEA) on Thursday reiterated concern about civilian casualties and adherence to international humanitarian law, but yet again didn’t explicitly call for a ceasefire and an end to violence.

At the weekly briefing, the MEA spokesperson Arindam Bagchi was asked whether India had a position on demands for a ceasefire in West Asia – which has seen an unprecedented level of violence and deaths since October 7.

In reply, he pointed to India having expressed concern over civilian casualties due to the ongoing conflict. “We also remain concerned about the humanitarian situation. We would urge the full respect and strict observance of international humanitarian law,” said Bagchi.

He also noted that India had “strongly condemned the horrific terrorist attack on Israel, and we believe the international community must stand together in combating terrorism in all its forms and manifestations”.

Bagchi also repeated India’s Palestine policy of “advocating the resumption of direct negotiations towards establishing a sovereign, independent and viable State of Palestine living within secure and recognized borders, side by side at peace with Israel”.

He also recounted that India has contributed $29.53 million to the UN Relief and Works Agency (UNRWA) between 2002 and 2023 towards supporting relief and rehabilitation work in Palestine.

“The Indian annual contribution to UNRWA was increased from $1.25 million to $5 million in 2018. India has pledged annual contribution of $5 million for the next two years,” said Bagchi.

At last week’s briefing, the MEA had similarly sought to expand and balance the Indian position by talking about international humanitarian law, after Modi had twice talked of only solidarity with Israel.

The Indian foreign ministry spokesperson last week said last week that New Delhi believes “that there is a universal obligation to observe international humanitarian law.” He added that there was a “global responsibility to fight the menace of terrorism in all its forms and manifestations”.

The MEA had to bring some additional nuance into India’s position as it was not in step with the rest of the Global South, including close Arab allies like the UAE, who condemned the Hamas attack but also called for an end to Israeli airstrikes and raised the demand for an immediate ceasefire.

Congress calls for ceasefire

Meanwhile, Indian National Congress president and opposition leader Mallikarjun Kharge repeated the call “for an immediate cease-fire and for humanitarian assistance to the beleaguered people of Gaza”.

“The indiscriminate bombing on the hospital in Gaza and residential areas resulting in the loss of hundreds of lives of innocent men, women and children is both unjustifiable and a grave humanitarian tragedy for which the perpetrators must be held accountable,” noted Kharge’s statement on Thursday.

Congress also called “upon all sides to abandon the path of senseless violence and war and begin the process of negotiations and diplomacy so that the aspirations of the Palestinian people are fulfilled and the security concerns of Israel are also ensured”.

The opposition party had condemned the attack by Hamas on Israel on October 7. But, unlike the Indian government, the Congress also explicitly condemned the attacks by Israeli military forces on civilian areas in Gaza. Notably, the Congress statement didn’t attribute the Gaza hospital strike to anyone.