Friday, December 22, 2006

Barak's Last Stand

You have to admire the staying power of Aharon Barak, the former President of Israel's Supreme Court. A couple of months after reaching the mandatory retirement age and required to leave the bench, he apparently continues to be involved in the court. He is writing opinions, which makes him a de facto member and therefore the Supreme Court has more members than the number set by law. So far as I know, in legal systems when a judge retires, that's the end of his involvement. Not so for Barak.

I imagine that there is a provision somewhere, perhaps in the court's procedures, that permits him to play this role. Just the same, it is wrong, though in line with the court-packing and other stratagems he has employed to maintain control over a body that has a huge role in Israeli life. Membership in the Supreme Court is rigged, adding another layer to its inherently undemocratic character. Rigging reached a new height during the Barak era, as when he blocked the appointment of the much-admired civil rights advocate Professor Ruth Gavison because he did not like her. He arranged for his successor who shares his extreme secular ideology and he has rigged key judicial panels that hear important cases.

Because they are fragile institutions in terms of their adherence to democratic norms, supreme courts tend to act with restraint. Israel's has a self-proclaimed exalted role that allows it to roam across the governmental and societal landscapes as it determines which laws, policies, appointments and practices shall stand and which shall be invalidated. This is democracy?

For all of his usurpations, Mr. Barak is shrewd and knows that there are limits, that if too much power is claimed by the court, there will be reprisals. He yields from time to time to the imperative of restraint. A useful example is his handling of challenges to the security wall that is still under construction. He ruled against the government in key cases, but upheld certain of the locations selected by the government. Much the same has occurred under his watch in other security and military cases.

Now he has ruled that Palestinians who live in the West Bank and Gaza can sue Israel for damages and harm resulting from Israel Defense Forces actions. There are exceptions, such as when the damages occurred during a clearly defined "war" or against an enemy state or a terrorist organization. In their decision, Barak and his panel invalidated a law passed by the Knesset, a consideration that has not deterred this presumed advocate of democracy.

It is too early to assess the implications and reach of this ruling. It has been reported that there are pending in Israel's badly clogged courts more than 500 lawsuits brought by Palestinians claiming they were harmed and there are strong implications that hundreds more are lining up to sue, demanding that a state they abhor and many want to destroy pay compensation for its self-defense against Arab aggression. Likely, the raid on Israel's treasury will be huge. An additional cost is greater divisiveness in Israel.

The irony is that Israel's departure from Gaza has increased the prospect of Palestinian citizens being harmed because withdrawal has led to increased shelling from Gaza into Israel. The further irony is that Palestinian claimants are likely to do better in Israeli courts than the Israelis who once lived in a small part of Gaza.

Barak's approach is to figure out how to implement his ideological and policy preferences and then to search for legal precedents that serve, in a sense, as fig leafs for his jurisprudence. Nearly all of the Israeli legal precedents that he points to are his own opinions, a tendency that reaches a height in his latest ruling. He selects excerpts from books that share his ideology, yet he finds very little support in rulings from respected supreme courts elsewhere because they scarcely exist.

If what Barak has decided for Israel would be applicable to U.S. actions in Iraq, there would be at least a million Iraqi litigants in American courts. Under the circumstances facing Israel, its courts should be open to Palestinian claimants only when it can be shown that the IDF deliberately targeted civilians or that it did so with reckless disregard for the welfare of civilians. However, if civilians were in harm's way, that is not a sufficient justification for a claim.

War isn't pretty. Or fair. It's hell. Civilians are killed and maimed. Homes and property are destroyed. That is why the military must take prudent risks to avoid harming civilians. To demand more is unreasonable and wrong and to compound this wrong by inviting civilians to sue is folly. When Israel counteracts attacks coming from Gaza, it is doing what all responsible states know they must do. Instead of relying on his false ideological gods, Aharon Barak and the Israel Supreme Court should be mindful of what U.S. Supreme Court Justice Robert H. Jackson wrote in dissent in 1949 in a case called Terminiello v. Chicago: "There is danger that if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Hopefully, last week's ruling is Mr. Barak's last. Even so, it is certain that his dubious jurisprudence has taken strong root in the Supreme Court and his progeny will haunt us for years to come.