Inside story

Accused of meddling in war or muddling rights, High Court rankles both left and right

Liberal groups accuse the bench of being too timid and too slow to address violations of fundamental rights, while conservatives claim its interference is harming the war effort

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Activists clash with police in the northern Israeli city of Haifa during a protest against the war in Gaza, May 30, 2024. (Flash90)
Activists clash with police in the northern Israeli city of Haifa during a protest against the war in Gaza, May 30, 2024. (Flash90)

In mid-December, the legal advocacy organization HaMoked filed petitions to the High Court of Justice demanding writs of habeas corpus for 62 Gazans detained without charge by Israel since the war broke out months earlier.

The right to review individuals’ arrests against unlawful imprisonment is among the oldest and most essential legal instruments for civil rights protection, both enumerated in the English Magna Carta of 1215 and Israel’s quasi-constitutional Basic Law: The Judiciary of 1984.

According to HaMoked, the 62 Gazans, some arrested outside the Gaza Strip, were being held for unspecified reasons at undisclosed locations that fell “outside the rule of law.”

The court, however, was unmoved, rejecting the petition on what HaMoked described as “flimsy” technical grounds and ruling in February that each case needed to be addressed separately. By the time subsequent petitions forced the state in May to allow such detainees to meet with lawyers, and by extension disclose where they were being held, some had been held incommunicado for over seven months.

The case was just one of many to come before Israel’s High Court in the last year, setting the bench up as arbiter between the twin pillars of human or civil rights and national security.

Perspectives as to whether that judicial review has been effective in acting as a bulwark for those rights, and whether that review is even necessary or justified, vary greatly.

Liberal organizations and politicians that have challenged the government’s actions and policies are not convinced that the courts, especially the High Court, have acted expeditiously enough, or firmly enough, and express concern that key rights have been eroded during the ongoing conflict.

Bereaved families and their supporters protest against a court hearing in a petition against the conditions of Hamas terrorists in the Sde Teiman detention facility, at the High Court of Justice in Jerusalem, August 7, 2024. (Yonatan Sindel/Flash90)

Conversely, conservative groups and politicians have fulminated against what they see as the activist interventionism of the court, not only in how the government has managed the ramifications of the war at home, but, they claim, in the operations of the IDF in the war itself.

Both liberals and conservatives point out that the High Court has not actually issued definitive rulings against the government in the last year. Left-wing civil rights advocates decry the lack of action as a badge of shame while those on the right claim that just the specter of judicial review has been enough to improperly pressure the government and harm the war effort, without the court actually needing to put pen to paper.

Times of war, while posing perilous threats to the life and limb of soldiers at the front and civilians back home, can often be times of peril for civil rights as well.

While the cannons are roaring and passions are high, consideration toward the rights of those perceived as the enemy can often fall prey to the inflamed sensitivities of a nation at war. Jingoistic sentiments driven by security threats, in Israel’s case often very real and very imminent, can also squelch voices of dissent, including those of fellow citizens.

Brutalized by Hamas in the south, bombarded by Hezbollah in the north, and attacked with ballistic missiles from Iran, Iraq, and Yemen, Israel’s security and its citizens’ sense of security has been under assault in a way not witnessed since the 1973 Yom Kippur War.

But while fighting this war, concerns have been raised over key human and civil rights which Israel has allegedly violated during the ongoing conflict, including those of its enemies as well as its own citizens.

Acting Supreme Court President Uzi Vogelman presides over a hearing on a petition demanding the Sde Teiman detention facility be shut down due to allegations of abuse and severe human rights violations, June 5, 2024. (Yonatan Sindel/Flash90)

Allegations have been made that Israel has severely violated the human rights of Gazan security prisoners held in the Sde Teiman detention facility; that it did not allow for the provision of sufficient humanitarian aid to the population of Gaza; and that it has suppressed the right to protest and freedom of expression inside Israel, particularly for its Arab citizens, among numerous other claims.

In Israel, activists and others raising these concerns have sought relief from the courts, principally the High Court of Justice, although lower courts have adjudicated some aspects of these claims, too.

Oded Feller, the legal adviser to the Association for Civil Rights in Israel, which has taken an active role in challenging suspected violations of human and civil rights during the war, gave the High Court a mixed grade, noting that it had become increasingly receptive to petitions as the war has dragged on.

In the first months of the war, the court rejected multiple petitions on varied issues either without holding a hearing or sometimes without even requesting the relevant state institutions file a response, he said.

Among those was an October 23 petition filed by ACRI against a government directive authorizing Israeli prisons to fill beyond capacity — passed due to the huge increase in the number of Palestinian detainees held by Israel following the October 7 attack — which was dismissed outright by the court.

“The feeling was that there was no one to talk to. The High Court refused to deliberate on petitions. Many were rejected outright. The feeling was that there was no point in filing petitions,” Feller said.

IDF soldiers stand by a truck packed with bound and blindfolded Palestinian detainees, in Gaza, December 8, 2023. (AP Photo/Moti Milrod, Haaretz, File)

The court also rejected petitions filed in November and December by Adalah, which advocates for the legal rights of Arab citizens and Palestinians under Israeli control, against a police policy banning anti-war demonstrations.

The High Follow-Up Committee, which represents Arab citizens of Israel, had sought to stage protests in Sakhnin and Umm al-Fahm against the war and in solidarity with Gaza, but the High Court adopted the police’s claim that it did not have enough manpower to secure such protests and inevitable counter-demonstrations.

As the war progressed, the court began to demonstrate a greater willingness to question the state’s reasoning for abrogating rights.

In January, police agreed to allow a limited anti-war demonstration in Haifa for the first time since the outbreak of the conflict, after the High Court exerted pressure on the police, grilling security officials over their refusal to grant permits in response to petitions filed by ACRI on behalf of the predominantly Arab Hadash political party and other anti-war groups.

In November as well, the court helped push police toward a compromise with activists seeking to hold a protest in Tel Aviv. The demonstration was eventually given the go-ahead, albeit with smaller numbers and in a less central location than organizers had sought.

Former MK Sami Abu Shehadeh speaks during a protest against the war in Gaza in Tel Aviv, November 18, 2023. (Dor Pazuelo/Flash90)

Activists say that the courts must go beyond simply signaling to authorities and issue actual rulings protecting rights they say are being trampled during the war.

In August, the court rejected an ACRI petition filed in April over allegations that police had continued to harass and suppress protests against the war, Feller said, pointing to protests in Haifa, Tel Aviv, and Jerusalem where the police have confiscated and destroyed signs with anti-war messages and accusations that Israel is committing genocide and other crimes in Gaza.

According to the court, a ruling was unnecessary, as the office of the legal adviser to the police had already issued guidelines prohibiting such behavior.

Despite the guidelines, however, police have continued to confiscate signs, video footage from demonstrations in Haifa and Jerusalem in September and October showed.

A police officer inspects banners and confiscates some of them at an anti-government rally in Haifa on October 1, 2024. (Courtesy Association of Civil Rights in Israel)

One of the most prominent cases accepted by the court for review was a petition filed by the Gisha human rights organization in March, requesting the court order the government to allow unfettered entry of all necessary “humanitarian aid, equipment and staff” into Gaza.

The petition came against the background of claims by UN agencies and international aid organizations that Gazans were facing severe food shortages and the possibility of widespread famine. In the international arena, the allegations have underpinned legal proceedings against Israel in the International Court of Justice and the International Criminal Court.

In four hearings so far, the High Court has heard petitioners’ claims, as well as detailed information provided by the state and specifically the IDF regarding its efforts to supply Gaza with aid.

Palestinian children suffering from malnutrition or chronic diseases such as cancer, wait with family members at Nasser hospital in Khan Yunis in the southern Gaza Strip on June 24, 2024, after they reportedly were given permission by the Israeli army to leave the besieged Palestinian territory for treatment through the Kerem Shalom crossing, amid the ongoing conflict in the Palestinian territory between Israel and Hamas. (Bashar Taleb / AFP)

In response to demands by the court for information, the IDF has provided ever greater levels of detail regarding its efforts to provide the territory with sufficient aid, including a commitment not to conduct hostilities during daylight hours along a humanitarian corridor it established in southern Gaza for supplying the humanitarian zone where the large majority of the Gaza population is currently living.

The court has yet to issue a final ruling on the petition, but as the hearings have progressed the justices have appeared to be increasingly satisfied with the state’s efforts.

According to Feller, the court has still been too slow and too restrained. It has also been reticent to look into allegations that led to petitions being filed, instead concerning itself with future outcomes, which means it can content itself with promises from authorities for reforms rather than issuing rulings, Feller said, echoing sentiments expressed by some justices in court.

“If you want to determine what will happen, you need to know what did happen so it doesn’t happen again,” he insisted.

That is what happened when the court held hearings on ACRI petitions demanding the Sde Teiman detention facility be shut down following reports of severe and systematic human rights abuses against Palestinian terror suspects detained during the war.

As a result of the hearings and accompanying action by the Attorney General’s Office, the State Attorney’s Office and other bodies to address the allegations, the state created a new detention facility at Sde Teiman with conditions comparable to those at established Israeli prisons, including a vastly reduced inmate population.

This undated photo taken in the winter 2023 and provided by Breaking the Silence, a whistleblower group of former Israeli soldiers, shows blindfolded Palestinians captured in the Gaza Strip in a detention facility on the Sde Teiman military base in southern Israel. (Breaking The Silence via AP)

The state also made a series of pledges and commitments to the court about the manner in which detainees would be held at the facility.

The court ultimately declined to order Sde Teiman be closed as demanded by the petitioners, since it said the necessary changes had been implemented.

In a warning to the government, though, its final ruling ordered the state to abide by the relevant laws for the detention of terror suspects.

Fight first, litigate later

Despite what critics describe as the court’s timorous approach to the protection of fundamental rights, the other side of the ideological spectrum is no more satisfied with the bench since October 7, 2023, with many conservatives railing against what they believe to be judicial meddling in the running of the war.

“Since October 7, the High Court has failed to understand what is happening… and at every opportunity has tried to impede the government,” said Ze’ev Lev, legal adviser to the Movement for Governance and Democracy, a conservative organization devoted to opposing what it sees as judicial overreach.

Lev argued that the court should not necessarily ignore petitions regarding Israeli policies related to the war, but should wait to take them up until after the fighting ends.

During times of war, he said, it is unacceptable for the courts to accept petitions that put pressure on the military, police, and other key institutions involved in the alleged violation of rights to change their policies.

He pointed specifically to requests by High Court justices to IDF officials to provide accurate maps of the roads authorized by the army for the transportation of aid, in response to the petitions regarding the availability of humanitarian assistance.

Trucks carrying humanitarian aid make their way along a street in Rafah in the southern Gaza Strip, on March 10, 2024. (MOHAMMED ABED / AFP)

“This intervenes directly in IDF operations, senior officials are forced to give an accounting of their activities, so instead of the army being able to concentrate on what it needs to do, the officers need to start dealing with these issues,” said Lev.

He also argued that the court hearings, some of which are broadcast live, hurt Israel’s reputation abroad and helped pile more legal and diplomatic pressure on the country, further inhibiting the military’s room for maneuverability.

Instead, Lev said cases such as the Sde Teiman and humanitarian aid petitions should be taken up only after the war is completed.

While admitting that petitions regarding the right to protest were more justifiable for the High Court to entertain, given its role as Israeli citizens’ main avenue for legal recourse, he nevertheless disagreed with the bench pressuring police to allow anti-war rallies.

“The discretion of state agencies during a time of war should be broader than in normal times,” he argued.

Illustrative. The High Court of Justice convening in Jerusalem on October 6, 2022. (Yonatan Sindel/Flash90/File)

Lev insisted that protecting the lives of soldiers and civilians, and the state itself, took priority over human and civil rights concerns during wartime, even if the latter was at just as much risk.

“In war, bad things happen, we need to know how to deal with with them, punish them, and only in extreme cases deal with them in real time,” he said.

“I don’t want this to burden the decision makers” during such times of emergency, he added. “The court needs to first of allow Israel to exist and act to guarantee that, and only afterwards ensure that it is preserving rights.”

Despite all the reservations of the conservative right, so far the High Court has only issued as single major ruling related to the war: the decision on Sde Teiman. Feller noted that the court did not even answer the primary request of the petitioners, namely that the notorious facility be shuttered.

Other petitions, such as one filed by ACRI in February asking the court to overturn the government’s blanket ban preventing the Red Cross from visiting all Palestinian prisoners held in Israel, have yet to even be given a hearing in court.

The court has also yet to rule on a petition demanding that Palestinian security prisoners be provided with adequate food to maintain their health, following testimony that such prisoners had suffered from constant and extreme hunger while incarcerated.

Feller expressed concern over how the court may handle free speech cases, with authorities cracking down on public expressions they perceive as supportive of Hamas or others, particularly among Israel’s Arab citizens. He pointed to recent arrests of Arabs for alleged incitement over what appear to be innocent incidents.

Entisar Hijaze seen being arrested by police early on October 8, 2024, in Tamra, northern Israel. (Israel Police)

Lower courts have upheld these arrests, despite acknowledging problems with them. Some of the detentions have been overturned on appeal. Though the High Court hasn’t dealt with the issue yet, it may eventually need to tackle it; even then, Feller does not hold out much hope for a favorable ruling.

“It took the High Court time to begin intervening, and even today what we are seeing is a very restrained intervention,” he said. “It is hard for us to say that the court has sufficiently defended civil rights.”

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