Israeli Supreme Court sets aside law to allow for prosecution of war

At the end of March, the Israeli Supreme Court voted unanimously to dismiss a petition filed by several human rights organisations demanding the resumption of the delivery of humanitarian aid to Gaza.

“I do not believe the petitioners have been able to show, even approximately, a violation of the prohibitions on starvation of the population as a method of warfare and as collective punishment,” the court’s president, Yitzhak Amit, who wrote the verdict, ruled. 

This dismissal has ignited a debate about the role the Supreme Court and the wider pro-judiciary, anti-government movement in Israel is playing in the war on Gaza, with international law and the lives of Palestinians seemingly ignored in favour of the interests of the military and state.

Responding to Amit’s verdict, the petitioners issued a statement calling the ruling “a song of praise for the State of Israel and its army during the darkest period in their history.

“The Supreme Court refrained from conducting judicial review and fully adopted the state’s position, while ignoring the situation and the consequences of the state’s actions in the Gaza Strip.”

The ruling came more than a year after the petition was filed. Michael Sfard, a leading Israeli human rights lawyer, told Middle East Eye that given the gravity of the allegations – starving the people of Gaza – the petition should have been decided much earlier.

“The court was concerned about the accusations that would be levelled against it,” Sfard said, referring to instances in which the Israeli government has said the court is obstructing military actions.

Israel’s decision in early March to block completely the entry of humanitarian aid, to stop providing electricity to Gaza and to renew the war, was ignored by the court.

“The verdict is based on a reality that does not exist,” Sfard said.

“The court rules that Israel must provide humanitarian aid but ignores the lively political discourse around the cessation of humanitarian aid and the reports provided by international organisations.” 

Right-wing government, liberal Supreme Court?

Since the formation of the government in December 2022, Yitzhak Amit, who is considered a liberal judge, has become a target of political attacks from the ruling right-wing coalition as it has gone about trying to overhaul the judicial system.

Yariv Levin, the justice minister, refused to recognise Amit’s appointment as chief justice, although it was done according to the usual legal process. Last February, Prime Minister Benjamin Netanyahu and his senior ministers refused to attend Amit’s swearing-in ceremony.

“The court’s agenda is liberal, but not for the working class or for Palestinians,” Yael Berda, a professor of sociology at the Hebrew University of Jerusalem, told Middle East Eye.

According to Berda, in its last verdict and similar rulings, the Supreme Court has tried “to strike a balance between Israel’s internal democracy and the undemocratic regime in the Palestinian territories.”

“The Supreme Court and the attorney general are the ones who try to preserve the Green Line and prevent de jure annexation, but they are not doing it for the sake of Palestinians,” Berda said, referring to that 1949 armistice line that separates the Palestinian territories of the West Bank, East Jerusalem and the Gaza Strip from Israel.

The hundreds of thousands of demonstrators who have taken to the streets since the beginning of 2023 to “protect Israeli democracy” from the government’s judicial overhaul see the Supreme Court and the attorney general as the guardians of democracy.

Following another recent attack by Netanyahu on the court, leading anti-government protest organisers appealed to the justices: “Do not bow your head and do not be afraid. The overwhelming majority of Israel’s citizens are behind you. If we need to, we will protect you with our own bodies.”

No room for Palestinians

Before the Gaza war, the Supreme Court was even described as a “bulletproof vest” for Israeli army soldiers, protecting them from international investigations by bodies such as the International Criminal Court (ICC) in The Hague.

“There is growing opposition in the protest movement to the war in Gaza, but not because they care for Palestinian suffering,” said Berda.

She believes the protesters defending the judiciary want to end the war because it “does not achieve its goals”. “It is not important enough for the demonstrators to fight for the protection of Palestinians’ lives,” the sociologist told MEE.

In the case of the Supreme Court ruling concerning humanitarian aid, “the judges, like many Israelis, live in denial,” Berda said. “They tell themselves a story that Israel is abiding by international laws, when it never has.”

Sfard notes that the court’s ruling fits well with the liberal anti-government protests. “This is a ruling that ignores the immoral and criminal acts conducted by Israel, while claiming it adheres to democratic values, upholds international law, and integrates into the world order.”

The court accepted arguments deployed by the Israeli state, including that Hamas hides among the civilian population of Gaza and uses hospitals as “terrorism bases”, and that the Israeli military does its best not to harm ordinary Palestinians. 

“It is customary in the court to give priority to the state’s position even when there are contradictions between it and the reports of international organisations,” Sfard said.

But in this case, “there is a contradiction between the state’s position and the statements of politicians regarding the blocking of humanitarian aid. The court seems to see its role more as a defender of Israel than as an impartial judge,” Sfard told MEE.

A court under pressure

According to Berda, the court is in the middle of an internal struggle: “On the one hand, the government is undermining the credibility of the military bureaucracy, and on the other hand, human rights organisations are doing the same.”

Far-right government ministers like Itamar Ben Gvir and Bezalel Smotrich have put pressure on the Israeli military to be even more aggressive.  

During Israel’s war on Gaza, international organisations have warned again and again of the dire humanitarian conditions in the enclave. They have warned of the spread of famine and malnutrition due to a lack of food supplies, the destruction of health infrastructure and the deadly attacks regularly carried out on aid workers and medical personnel.

The Israeli Supreme Court does not deny that the humanitarian situation in Gaza is grave. But, according to Amit, the chief justice, “the suffering of the civilian population does not in itself attest to a breach of duty on the part of the State of Israel”.

Justice Noam Sohlberg, a settler from Alon Shvut in the occupied West Bank, wrote that “humanitarian aid that comes to Hamas as a ripe fruit is an oxymoron. The human becomes animalistic. The fighting cannot come to an end.”

The third justice on the panel, David Mintz, is also a settler. He agreed with his colleagues’ assertions, adding that “according to Jewish law it is customary to distinguish between a war of mitzvah (commandment) and a war of will”.

In a mitzvah war, “the king does not need to get permission from the court to go to war”.

“The State of Israel is in the midst of a mitzvah war in the full sense of the word,” Mintz wrote. Viewed like this, there is no obligation to “allow the provision of extensive and unlimited aid” into Gaza.

Sfard told MEE that Sohlberg and Mintz’s assertions “introduce a world of religious terms into a modern legal domain, which is based on moral theory and humanistic ideas”.

Israel has now killed more than 50,000 Palestinians in Gaza, destroying most of the coastal enclave in the process. Reflecting on the moral theory and humanist ideas underpinning modern law, Sfard said: “International law is intended to prevent the atrocities of antiquity.”

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