Lawyers debate whether High Court sufficiently protects human rights

Legal experts debated on Tuesday whether the High Court of Justice is sufficiently protecting human rights at the Israel Democracy Institute’s conference in Jerusalem, pitting accusations of failure against strong-backing that the court strikes the right balance in the country’s complex national security arena.

Human rights lawyer Michael Sfard said that he feels the High Court is moving toward further ignoring major human rights violations. He predicted that with the High Court refusing to intervene in a series of recent cases, there could be a tipping point where human rights groups lose trust in the system and stop turning to it for help.

Sfard discussed the High Court’s endorsement of Monday’s deportation of Human Right Watch official Omar Shakir, as well as a May 2018 decision endorsing the IDF’s aggressive rules of engagement for handling the Gaza border conflict.

Addressing the Shakir decision, Sfard said that the impact of the decision was to frame even boycotts only aimed at the settlements as being a basis for deportation.

He expressed some hope that even as Shakir was deported, that a broader panel of the High Court might decide that trying to get businesses to boycott only due to human rights violations (i.e. his euphemism for boycotting the settlements, but not Israel within the Green Line) was not a basis for deportation.

Sfard harshly attacked the court for the 2018 rules of engagement decision, accusing the justices of copy-pasting large portions of their decision on the issue from the state’s legal brief.

He said that the state, and therefore the court, had manufactured new principles of international law which could permit shooting at crowds of Palestinians who generally might present a future law enforcement issue, but none of who presented an immediate danger.

The human rights lawyer said that the IDF wanted to mix and match between a war and law enforcement context, and that such a mix had no basis in international law.

In fact, he argued that High Court President Esther Hayut pointed out this gap in a side note.

Essentially, he accused the court of becoming “a rubber stamp” for the state to make illegal policies look legal.

Former High Court deputy chief justice and attorney-general Elyakim Rubinstein disputed Sfard’s characterizations, citing several examples where the court intervened in favor of human rights advocates despite the government’s view.

Just as Sfard cited the High Court’s support for deporting Shakir to prove his point, Rubinstein countered with the High Court’s canceling the deportation of Lara al-Qasem to show it had been even-handed and looked at each case based on its own merits.

Regarding the famous 2004 case to declare Israel’s West Bank barrier illegal, Rubinstein said that the High Court found a middle ground by endorsing the walls’ legality for security purposes, but ordering changes to its route based on Palestinian human rights considerations.

Rubinstein continued with other examples, including the High Court sometimes pushing the state’s security services to be more flexible with allowing Palestinian students from the West Bank or Gaza to travel who were being blocked from doing so.

Shurat Hadin president Nitsana Darshan-Leitner contradicted Sfard, predicting that human rights groups would continue to come to the High Court for years to come.

She also said that it was not at all clear that from a volume perspective that there was data showing that the High Court favored national security concerns.

Leitner has sometimes criticized the court for underplaying national security.