The Silence of the Israeli Supreme Court Judges: How the Rise of Judicial Power May Lead to a Failure in the Core Judicial Role of Protecting Human Rights

The issuing of arrest warrants by the International Criminal Court (ICC) for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for alleged war crimes and crimes against humanity is a red card for the Israeli legal system as it demonstrates that the ICC Pre-Trial Chamber had at least grave doubts whether the Israeli legal system fulfills the complementarity requirement. This red card was added to several yellow cards issued by other courts and government legal advisors worldwide. Paradoxically, such an indictment on the Israeli justice system arrives after the Israeli Supreme Court has recently endowed itself with the authority to strike down constitutional amendments, fortifying its position as one of the most powerful national high courts worldwide. Yet, in the following, I will argue that the more the Court expanded its reach into the political arena using vague and dubious doctrines, the less it could fulfill its core role of defending basic human rights – such as the right to life – at a time it was most needed. However, prior to discussing this argument, I will briefly discuss the ICC’s recent decision and other expressions of reservation towards the inactivity of the Israeli justice system.

The ICC aims to complement rather than replace national criminal justice systems so that had Israel genuinely and effectively investigated the allegations of war crimes and crimes against humanity, the ICC would have deferred to it. According to the complementarity principle, the ICC will take jurisdiction only if the relevant state is unable or unwilling to properly investigate and prosecute the crimes under investigation.

In its decision on November 21 regarding the Israel-Hamas war, the ICC Pre-Trial Chamber rejected Israel’s challenges to the procedural aspects of the complimentarily principle while noting that Israel can still “challenge the admissibility” of the case “on the ground that it is investigating or prosecuting or has investigated or prosecuted” the respective case. In other words, an argument on complementarity can still be raised in later proceedings. Similarly, ICC Chief Prosecutor Karim Khan stated, “In line with the Rome Statute, the door to complementarity continues to remain open.” Yet, in issuing the warrants, the Pre-Trial Chamber implicitly acknowledges that it has at least serious doubts about the functioning of the Israeli legal system. Simply put, had the complementarity requirement been fulfilled, the Court would lack jurisdiction (sec 1), and the case would be inadmissible (sec 17).

As Marty Lederman has shown, Kahn has insinuated on several occasions his reservations about the actions of the Israeli legal system. As for the Pre-Trial Chamber, in its decision on the Situation in the Republic of Cote d’Ivoire, another ICC Pre-Trial Chamber determined, and commentators reiterated, that even at early stages, the ICC has an obligation to examine the complementarity requirement on the broad contours of the anticipated case.

The ICC is not alone in its doubts regarding the Israeli legal system. The provisional measures issued by the International Court of Justice in the genocide proceedings against Israel in May 2024, the judgment by the Appeals Court in Netherlands barring the further shipment of F-35 parts to Israel, as well as decisions by the UK, Canadian, Belgium, Italian, Spanish and German governments to suspend, at least partly, sending weapons to Israel indicate that judges and governments’ legal advisors do not view the Israeli legal system as a guarantee for preventing egregious violations of human rights in Gaza.

The recent letter by US Secretary of State Antony Blinken and Defense Secretary Lloyd Austin that warns Israel that the US would stop its weapons transfers if the humanitarian situation in Gaza does not improve signals that even in the US legal establishment, there is no more trust that the Israeli legal system is able to prevent serious human rights violations in Gaza. The letter demanded immediate action to let more humanitarian aid into Gaza. Following action by the Netanyahu government, the US has temporarily removed its threat. However, this letter is a serious signal of the doubts in the American administration regarding the Israeli justice system as it was sent following several Supreme Court decisions about the issue of humanitarian aid that did not satisfy the Biden administration.

Yet, despite these red and yellow cards, the legal discourse in Israel remains unchanged. The legal community, by and large, is occupied with one endeavor: the struggle against the Netanyahu government’s attempt to overhaul the Supreme Court. Yet the Court, while keeping involved in every political affair, is impotent in preventing egregious human rights violations in Gaza.

Government legal advisors and judges who for years proudly spoke of jurists’ involvement in scrutinizing IDF’s operations have grown silent. Those who, during the Second Intifada, pointed out the Court’s ability to intervene in real-time in military operations seem to have forgotten this ability. They also caught amnesia with regards to the Court’s judgments prohibiting torture and the use of human shields (what is known in Hebrew as the “neighbor technique”) even when there is clear evidence that Israeli security forces have disobeyed both these judgments since the war began. Moreover, several of the petitions submitted to the Court did not even require intervening in military operations but merely intervening in providing basic humanitarian requirements such as food and medical aid. In these petitions – to which Israel has referred in its communication with the ICC prosecutor prior to his application for arrest warrants – the Court served more as an alibi for the government’s claims than a judicial institution aiming to prevent human rights violations.

For decades, the Israeli legal community drew a sharp distinction: whoever criticizes the expansion of judicial power is against human rights and democracy. When Professor Ruth Gavison of the Hebrew University, one of the founders of the Israeli Association for Civil Rights, explained that her critique against the judicial expansion of power stems from her fear that the Court would lose its ability to protect fundamental human rights, her former colleagues at the Association explained that “Gavison had gone estray” and almost all her colleagues in the academia had criticized her.

Gavison’s critique on the expansion of the Court’s power began in the 1990s following its decision to order Prime Minister Yitzhak Rabin to dismiss Minister Aryeh Deri and Deputy Minister Rafael Pinchasi after they were criminally indicted on corruption charges. During these years, Gavison also criticized the Rabin Government for deporting 415 Hamas members to Lebanon without giving them a right to a hearing. Gavison’s critique of the deportation decision did not rely on the vague reasonableness argument that became so popular in the Court’s reasoning, but on the fundamental right to hearing, according to which every person has a right to address the grounds of an executive decision that infringes their fundamental rights. Yet, the Court denied the petitions against the deportation decision.

Judges and their supporters disregarded Gavison’s warnings that the “excellent is the enemy of the good” and that a Court that attempts to expand its power into political questions, such as appointing and dismissing ministers, would lose its ability to protect fundamental rights such as the right to hearing. Following Gavison’s critique of the deportation decision, PM Rabin nicknamed the Association for Civil Rights headed, at that time, by Gavison, “the Association for Hamas Rights”, yet Gavison was identified as a right-wing person the moment she criticized the Court’s attempt to manage the political arena.

The depiction of Gavison as a right-wing thinker convinced the Netanyahu government, and in 2013, Gavison was appointed by the Minister of Justice to examine the idea of legislating Basic Law: Israel as the Nation-State of the Jewish People. The Netanyahu government expected that Gavison would produce a report supporting the legislation of a Basic Law that sets the Jewish character of the state as superior to its democratic character. But Gavison did not live up to these expectations. In her report (which includes a summary in English), she denied the idea of endowing the Jewish ingredient in the state’s vision with more weight than the democratic ingredient.

The Netanyahu government rejected Gavison’s conclusions and, in 2018, legislated Basic Law: Nation-State. A day after the Basic Law was legislated, petitions were submitted to the Court asking it to strike it down. Gavison and I wrote an op-ed against the Court’s intervention in Basic Laws that serve as Israel’s Constitution. Though we stated that the legislation of Basic Law: Nation-State was a “grave mistake”, we argued that the Court should dismiss the petitions prior to an oral hearing and without discussing the substantive arguments against the Basic law because it is not the role of judges to determine Israel’s identity by deciding on the Basic Law constitutionality. Only once there is a concrete case in which human rights are infringed due to this Basic Law should the Court intervene.

But the Court discussed the petitions in a lengthy judgment, dismissing the petitions and giving a kosher stamp to Basic Law: Nation-State. Its judgment revealed many of the problems in the Court’s growing involvement in mega-political questions. The first problem was the subject matter. The Court decided on whether Basic Law: Nation-State is in line with the definition of Israel’s identity as a Jewish and Democratic State. Such a question is hardly legal and expanding judicial authority to determine the telos of the state raises doubts on the scope of the Court’s expertise.

Think of the comparison to Central Banks. In Israel – as in many other countries – the Central Bank’s decision on the interest rate is accepted as a matter of expertise in economics. Yet not always was economics considered a field of expertise that is superior in its professional “purity” in comparison to law. Signing the Federal Reserve Act that created the American central bank known as the Fed, President Woodrow Wilson described it as the “Supreme Court of Finance.” In those years law was considered as a purer field of expertise than economics and hence the reliance on a comparison to the Supreme Court to endow the Fed with a veneer of expertise. In Israel, following the daily judicial scrutiny of questions of pure politics according to vague criteria such as reasonableness, the Court has undermined law as a field of expertise even in issues that are at the core of legal expertise, such as human rights.

The second problem is the corruption of the legal language. In the Basic Law: Nation-State judgment the Court was adamant that its judgment is limited to determining the constitutionality of the Basic Law without deciding whether the Court has authority to review the Basic Law’s constitutionality. This paradoxical statement indeed contradicts any legal logic and represents the corruption of the legal language as a basic concept such as “authority” loses its meaning. This type of corruption has seeped into the language of constitutional law so that it lost its traits as a coherent and consistent language making the constitutional-legal discourse reminiscent to the political discourse rather than to a professional language that can serve as a potent tool in defending human rights.

Three years after the decision to dismiss the petitions on the constitutionality of Basic Law: Nation-State, the Court decided it has authority to review the constitutionality of Basic Laws and struck down a Basic Law that aimed to narrow the ground of reasonableness as undermining the State’s character as democratic. That Basic Law apparently was a more serious risk to Israel’s identity as a democratic state. Unsurprisingly, several of the judges treated the judgment on Basic Law: Nation-State as if it already de-facto decided the Court’s authority question.

In both cases, the Court discussed theoretical petitions that did not stem from a concrete case of human rights infringements. The judgments were mere celebratory declarations of the Court’s importance for democracy and the protection of human rights. Yet the more the Court expanded its authority to strike down not only regular legislation but also Basic Laws, which are Israel’s Constitution, and the more it involved itself in politics, the more it lost its power to defend human rights.

No court in the world today has the scope of authority held by the Israeli Supreme Court. It can scrutinize any decision by public authorities, starting with decisions of whether to charge soldiers, ministers, and the prime minister for crimes, through scrutinizing appointments of military officers, the dismissal of the minister of defense, and the reasonableness of adopting international agreements. Finally, it can strike down laws and Basic Laws and determine the identity of the state. Yet, in this period, when its involvement is needed the most, it does very little to narrow the most severe human rights infringement the Israeli state has ever caused. Even in the War of Independence, when Israel fought for its life, fewer innocent Palestinians were killed.

A shorter version of this essay was published in Hebrew in the Times of Israel.