High Court to hold hearing on transparency for Israel Atomic Energy Commission

First time judicial body will exercise oversight over agency

An NGO announced on Tuesday that the High Court of Justice will hear its petition to compel the secretive Israel Atomic Energy Commission to become more transparent through broad Knesset legislation.

The hearing will be the first time in history that a judicial body will exercise oversight over the IAEC.

The NGO, the Israeli Disarmament Movement led by Sharon Dolev and Mossi Raz, former Meretz MK and chair of IDM’s board, filed the petition in May, together with 100 citizens, including Middlebury Institute Prof. Avner Cohen, a noted author on Israel’s nuclear program.

IDM expected aspects of the High Court hearing to include closed-door sessions (without the petitioners or the media present) in which the IAEC will present classified information about its programs to the High Court for the first time. Then the High Court will decide what information can remain secret and to what extent the agency must be regulated.

The state asked the High Court to dismiss the petition without even an oral hearing on the grounds that the High Court can strike laws as unconstitutional, but it does not have the authority to order the Knesset to pass laws. It had added that within the IAEC and through the State Comptroller and others there is already oversight, even if it is not anchored in law and made public.

IDM responded that while generally the High Court does not order the Knesset to pass laws, there are exceptions to this rule and that the secretiveness of the Israeli IAEC is one of those exceptions. It added that the current oversight is inadequate, has no teeth and is all internalized in a way that avoids overseers who will press the IAEC too hard or who exercise true independent scrutiny.

Dolev said, “The very fact that there will be a hearing is a kind of win… We are talking about dangerous facilities with no oversight and outside the law. We hope… whether we win or lose that there will be a real debate regarding oversight of the agency.”

Cohen said that “the absence of a legal framework in the Knesset for the IAEC… constitutes an extreme loophole that harms democracy and the rule of law in Israel.”

Addressing Israel’s nuclear facilities, IDM wrote in the petition, filed by lawyer Itay Mack, “The most hazardous industrial complex in the country operates in secrecy, without public control, oversight, or… law. The present situation is dangerous.”

Although the petitioners say they worked on the petition for around a year before they filed it, the petition came only weeks after the world was taken by storm with an April Haaretz report that the Dimona reactor has 1,537 cracks.

The news renewed a 2004 debate about the reactor being beyond the 40-year point of being safe to use – a line passed in 2003, since it went online in 1963.

Petitioners said the solution to the lack of transparency is to enshrine the IAEC’s operations in primary legislation that will regulate its roles, authority, form of organization and management, and require monitoring of its activities and facilities.

Noting that the IAEC was created in 1952, the petitioners contend that its roles and methods of monitoring its activities have never been enshrined in law, a status quo that cannot continue.

The petition recalled that the entirety of the agency’s functions are governed merely by a secret administrative order, issued by then-prime minister David Ben-Gurion, and a later series of secret government rulings.

Trying to build its case, the NGO pointed out that the Shin Bet (Israel Security Agency), though secretive and at the heart of Israel’s security, has been regulated by a broad Knesset law at least since the passage of the General Security Services Law in 2002.

When the petition was filed, Dolev stated, “While vagueness regarding the existence of nuclear arms in Israel has always been the policy of Israel’s governments, its broadening into aspects pertaining to citizens’ health and security, the dangers deriving from the condition of the aging reactor, and long-term environmental hazards, is totally unjustified.”

In other words, even as some supporters of the NGO are also proponents of ending Israeli ambiguity regarding whether it wields nuclear weapons, the petition does not demand that at all.

It only seeks transparency and regulation regarding issues where the nuclear facilities may negatively impact health and environmental issues.

Though the High Court might normally be less excited about jumping into a gray area involving national security, the various health-hazard Dimona reports may have pushed the court to take the case.

At the same time, the High Court took seven months to decide to hear the case and it has set a court date for September 7, 2017, meaning there will be no decision or change in policy likely for at least a year.