‘If there’s a dispute between the Netanyahu government and the army, it’s for them to hash out, not the court,’ said retired Israeli judge Haran Fainstein.
By David Isaac, JNS
When the IDF announced it would institute 11-hour “tactical pauses” in the fighting near a road through Rafah and into Khan Yunis to allow more humanitarian aid into Gaza, the news took Israel’s prime minister and defense minister by surprise.
Some say that’s because the decision was driven by the Supreme Court, not the government, again illustrating judicial overreach.
On Monday, Lt. Col. Avichay Adraee, head of the Arab media division of the IDF Spokesperson’s Unit, announced that to “increase the scope of humanitarian aid,” military operations would cease between 8 a.m. and 7 p.m. from the Kerem Shalom border crossing into the Gaza Strip on part of the Salah al-Din Road, Gaza’s main north-south highway.
While some argue this was an effort to address international criticism, which culminated in the International Criminal Court’s chief prosecutor seeking arrest warrants for Israel’s leaders, others point to pressure closer to home, namely the Supreme Court’s hearings on a petition brought by five radical anti-Israel NGOs.
Those NGOs argue that Israel isn’t letting enough humanitarian aid through and hold it entirely to blame for the situation in Gaza.
On June 10, the Supreme Court, sitting as the High Court of Justice, held its third hearing on the matter. The petitioners were represented by attorney Osnat Cohen-Lifshitz of Gisha—Legal Center for Freedom of Movement.
NGO Monitor, an Israel-based group that tracks nonprofit organizations hostile to the Jewish state, notes that Gisha, typical of most anti-Israel NGOs, espouses extremist positions and pulls the vast majority of its budget (73.1% of total donations in 2017-2019) from foreign countries.
Speaking in defense of the government was IDF Maj. Gen. Ghasan Alyan, the current head of COGAT, the Defense Ministry unit handling aid to Gaza, and Ministry of Justice attorney Yonatan Berman.
Alyan detailed the steps Israel had taken to ensure entry of humanitarian aid and the safety of the civilian population. Berman noted that COGAT and other Israeli agencies had gone “above and beyond” what international law required.
The court didn’t reach a decision to impose an injunction. At the conclusion of the hearing, the presiding judge, acting Chief Justice Uzi Vogelman, said, “We will weigh the matter and send you our decision.”
Keep the court satisfied
Amichai Shilo, who writes for HaKol HaYehudi and is covering the hearings, said that the state wants to keep the court happy so that it doesn’t reach a decision that would limit its freedom of action.
“You saw how Maj. Gen. Ghasan Alyan came to the hearing and listed all the things that they’re doing to keep the Supreme Court satisfied,” he told JNS.
“The Supreme Court doesn’t really need to make decisions to have a very great influence on the decision-making of the government and the officials.”
Alyan devoted his roughly 20-minute presentation to listing IDF measures in support of Gaza’s population.
Providing an example of the lengths the military had gone, he said it even allowed the entry of “dozens of items that could be considered dual-use,” that is, turned to military purposes by Hamas, in order to improve Gazan field hospitals.
Six days after the hearing, the IDF announced its tactical pauses. Shilo said the two events are connected.
“The Supreme Court is telling the army and the state’s representatives, without involving the prime minister, that they should introduce more humanitarian aid. I believe that the prime minister isn’t following these hearings; that he didn’t know.”
Prime Minister Benjamin Netanyahu immediately criticized the decision. “When the prime minister heard the reports of an 11-hour humanitarian pause in the morning, he turned to his military secretary and made it clear that this was unacceptable to him,” an Israeli official told reporters.
Defense Minister Yoav Gallant also said he learned about it the day of the announcement. He denied giving his approval for tactical pauses.
The IDF, in defending its move, insisted that Netanyahu and Gallant had in effect given the army carte blanche to call for daily timeouts when they OK’d in broad strokes the entry of more humanitarian aid. How best to accomplish that goal was left to the army’s discretion, the military argued.
A shadow government
However, retired Israeli judge Haran Fainstein, who teaches at Bar-Ilan University’s Department of Criminology, said that doesn’t rule out the possibility that the IDF decision was a response to the Supreme Court pressure, with army brass figuring it was best to do more in the way of humanitarian aid than risk an adverse court decision.
Over the last 30 years, the court has inserted itself into all aspects of political and military life to the point where it could be considered a shadow government, Fainstein said.
He argued the court had no business intervening on this issue at all. It should have rejected the petition outright.
“Everybody has to ask themselves if this is really within the court’s purview. Is it a legal, political or military matter? Is it a legal matter if 200 aid trucks enter or 300 aid trucks enter? No, it’s not a legal matter. It’s not in their jurisdiction,” Fainstein told JNS.
If there’s a dispute between the Netanyahu government and the army, it’s for them to hash out, not the court, he said.
“In the Catholic Church, when the pope doesn’t want to receive a petition, he says, ‘Non possumus—we cannot do it.’ What the Supreme Court should have said is ‘Listen, it’s a political-military matter. Don’t come to us now. Come back again after the war.’”
The court agreed to hear the petition because it can’t pass up an opportunity to exert its authority. The court won’t risk undercutting the belief that it’s the address to turn to on all important matters, Fainstein said.
“It’s because they don’t want to lose control over the government and over the State of Israel. So they take every petition.”
Fueling the court’s willingness to hear the petition is its ideological alignment with the petitioners. Of the three justices presiding, two, Yitzhak Amit and Vogelman, are leftists, Fainstein said.
“Amit is very political and wants to be the next president of the Supreme Court. Vogelman, who retires in two months, has made no secret of his opposition to Netanyahu and the government,” he said.
The third judge, Noam Sohlberg, is conservative. But this is a common tactic of the court to give the appearance of balance, Fainstein said, and the fix is in as it’s two-to-one.
“Show me the judge and I’ll tell you the outcome,” he said, saying he could predict the final decision in every Israeli Supreme Court case simply by looking at the bench.
During the hearings, Amit and Vogelman did appear considerate to the petitioners’ attorney. “This court is at your disposal, and makes itself available to you,” Amit said at one point.
Fainstein said that solicitousness stems from the fact that the court needs those petitioners to hear the cases. Leftist NGOS make the perfect partner for the activist court.
Anyone in Israel can bring a petition on any issue as the court years ago did away with the need for standing, the need to prove a personal investment in the outcome of the case.
“When I was a young lawyer, I had to prove when I petitioned the Supreme Court that I or my client would be hurt by the decision. Now it’s public. Everyone can go to the Supreme Court,” Fainstein said.
“Personally, I feel as if I’m in ancient Rome with the bread and circuses. Here it’s the circus of the lawyers and the judges,” he said.