Ephraim Halevi
Photo: Abigail Uzi
Aharon Barak
Photo: Alex kolomoisky
Between the legal and political
High Court failed to curb future international intervention
The High Court of Justice ruled on the issue of the separation fence near Alfei Menashe, while at the same time it also commented on the Hague International Court's standpoint on the fence. A few days earlier, a British court issued an arrest warrant against Israeli major general (res.) Doron Almog, preventing Almog from entering the country.
When Prime Minister Ariel Sharon met with his British counterpart in New York, he publicly pondered whether he can accept an invitation to visit London, considering his military record. The President of the High Court of Justice, Aharon Barak remarked in his ruling on the fence that Israel is not an island, and hinted that Israel's failure to represent itself in Hague effected the international court's decision.
The "dispute" between Israel and the Palestinians is not a legal one. This is a dispute between two nations who have been fighting each other for years over the right to exist, over mutual and international recognition, over territory and over the vision of each side.
Israel's borders not a legal issue
Since its inception, Israel has been forced to defend itself in a series of wars that have collected a heavy toll in lives that were lost. A central issue of this far-from-ending battle revolves around the ultimate location of the border that will run between the two states – the one which already exists, the other that is now in the making.
No court has ever ruled on the border between to belligerent countries. This is why, among other reasons, the U.N. Security Council stated in its 1967 resolution (Resolution 242), that Israel has the right for safe, defensible borders. It was clear then, just as it is clear today, that the borders are an issue that should be decided upon in political – not legal – negotiations.
The pretension of the Hague court to decide, in effect, on the legal borders of Israel, proved not only how much it lacked factual foundation when making its decision – as the High Court of Justice maintained - but also, to what extent it stepped out of its authority.
The U.N. had presented the court with a political question, and the court replied with a political answer, disguised as legal ruling. The High Court of Justice refrained from explicitly saying the ruling was political, and thus legitimized further interventions of the Hague court in the future, interventions that serve the interests of the Palestinians.
International intervention should have its limits
Harnessing the legal system in service of the political system is no novelty. Several years ago, Arab and European elements attempted to get the Belgian justice system to hold trials against Israeli leaders, including Prime Minister Sharon. The State had then put in a great effort to curb these proceedings, working on both the legal and the diplomatic levels.
When Prime Minister Sharon made that comment to his British counterpart, he was probably thinking about those days. Sharon was right to raise the issue of Doron Almog. The state of Israel is indeed not an island, and its justice system does not operate on a different planet, but rather within the present reality.
During the last year, the High Court of Justice demonstrated its immense sensitivity to public concerns, when helping to facilitate the government's policy on pressing issues. The High Court assisted the implementation of the disengagement, acting under the assumption that the government's responsibility lies in policy making, while the court's duty is to facilitate legal policy as much as possible.
The political echelon estimated that sending a representative to Hague would result in negative diplomatic consequences, and was correct in its decision not to appear in court. Had Israel participated in this proceeding, we would have had to bow to the authority of Hague to determine where Israel's border should run. The political echelon was also right to take matters of the nature of Doron Almog under his wings.
High Court's missed opportunity
The ruling on the fence in Alfei Menashe provided the High Court of Justice with a rare opportunity to draw a clear line between where the authority of legal stances begins, and where it ends and is replaced by political authority.
A High Court looking to the future would have had to, in my opinion, prevent all possibility of involvement by the international justice system in decisions concerning Israel and its neighbors.
Unfortunately, the High Court of Justice failed in making such a clear, unequivocal statement.
Ephraim Halevi was head of the Mossad in the years 1998-2002
