Right-wing settler appointed to Israel Supreme Court
Recent rulings by the High Court and the appointment of a rightwing settler signal the twilight of Israel’s juridical liberal-democratic period
By Eyal Clyne, +972blog
Last week, Judge Noam Sohlberg was appointed to the Israeli Supreme Court (which, in Israel, is also the High Court of Justice, a court of judicial review carrying important constitutional functions). Sohlberg will thus become the first settler judge in Israel’s history.
Being a settler, Sohlberg has a clear conflict of interests, since he will have the authority to rule on appeals against government policies violating International Law, while himself violating International Law on a daily basis. In fact, he has a personal and political interest in continuing to legitimise Israel’s ongoing and expanding illegal settlement project.
Sohlberg is not an outstanding judge. He has a proven record of controversial anti-liberal rulings in lower courts, some of which were later reversed. For example, he rejected an appeal to allow registration of nationality in Israeli ID cards as “Israeli” rather than “Jewish” or “Arab;” he supported the state against an Israeli living abroad, after his passport wasn’t renewed because he did not return to do military service; and he acquitted a policeman who shot a man dead (a ruling which was later reversed unanimously by the Supreme Court).
Sohlberg also accepted several high-profile right-wing libel claims against the media, including one by a military officer against the Channel 2 TV investigative program ‘Uvda’; and rejected a slander claim against extreme right-wing activist Itamar Ben Gvir, who called an Arab MK ‘a Nazi’, in court. A few years ago he also rejected a libel claim against the settler newspaper ‘HaTzofeh,’ filed by author B. Michael, a senior satirical writer, for calling him (in 2003) “one of the greatest anti-Semites in the world.” According to Michael, the ruling” ranged from strange to absurd” and “was an attempt to alter the facts to suit the outcome.” Indeed Sohlberg’s ruling was later annulled by a higher proceeding, and the newspaper was forced to print an apology.
Sohlberg’s appointment should be seen within the context of sustained pressure on the Judicial Selection Committee, the body responsible for appointment of judges in Israel. Right-wing coalition politicians brought it to a deadlock, and pressed senior jurist members of the Committee to accept specific conservative judges to the Supreme Court. They now hope to remove the legal limitations on appointing the future Chief Justice, conservative judge Asher Grunis, in the near future.
Justice Grunis is an opponent of the current ‘activist’ constitutional approach of the Israeli High Court of Justice – an approach that usually supports equality and civil rights. He was the most blatant of the 11 Justices in a groundbreaking ruling last Wednesday, that upheld a 2003 amendment to Israel’s Citizenship Law, writing that” human rights should not be a prescription for national suicide” (i.e. non-Jewish citizens are not of Israeli nationality, in what I call the “nicht-Juden raus” policy).
Israeli Supreme Court of Justice accepts the de-liberalisation of Israel
The ruling rejected all the appeals against a 9-year-old prohibition on Israeli and non-Israeli spouses living together in Israel, if the non-Israeli spouse is a Palestinian or a citizen of certain Middle Eastern countries. Although Israelis have the right to reside with their non-Israeli spouses in Israel, the amendment introduced in 2003 discriminates specifically against Arabs citizens, who retain family and community ties with Palestinians and other Arabs. (By the way, the Interior Ministry also persistently disapproves the unification of spouses from the Philippines and Africa, which contradicts the law).
Only five and a half years ago, the High Court of Justice deemed the law unconstitutional but avoided annulling it, because it was a “temporary measure” valid for one year. After that, the temporary became permanent, and the Knesset, ignoring the court, voted time and again to extend it. New appeals soon followed, but the court did not rule until Wednesday, in a decision which upheld the discrimination. Another judge explained that their right to family life should be upheld, but not necessarily in Israel – an argument that can easily be used to deprive anyone of any of their rights, from freedom to voting rights. “Yes, you can have your rights, but not here”.
Another appeal, against the notorious ‘Nakba Law’, was dismissed by the Court the week earlier. This is but another symptom of the changing atmosphere in the justice system, affected by the general deterioration of liberalism and democratic values in Israel.
Israel has no codified constitution. In its absence, the chief protector of its democracy has been its independent judiciary, and especially the High Court of Justice. The recent rulings by the Court illustrate the erosion in its status and are perhaps the clearest indication of Israel’s slide from democracy.
This is not to say that the Israeli justice system has always adhered to International Law in the past. On the contrary, it approved many various state practices of occupation and settlement, denied Palestinian refugees’ claims, upheld torture for nine years, and still upholds the siege policy on Gazans. It has also been less than unequivocal regarding discrimination against non-Jewish citizens of Israel. However, these recent rulings and the coerced reshuffling of judges mark a new era of decline in state liberalism. Consequently, many believers in Israeli liberalism and democracy, who have until now relied on the court as a channel for seeking justice, will have to find more radical ways of struggling for their rights.
Israel’s High Court rules residents of settlements can serve as justices
Rejects petition against appointment of Sohlberg to Supreme Court bench.
By Tomer Zarchin, Ha’aretz
The High Court of Justice on Sunday rejected a petition against Friday’s appointment of Jerusalem District Court Judge Noam Sohlberg to the Supreme Court.
The fact that Sohlberg lives in a settlement poses no obstacle to his appointment to the Supreme Court bench, the High Court ruled.
In a petition filed on Sunday afternoon against the Judicial Appointments Committee, which made the appointment, and Sohlberg himself, the Yesh Gvul movement claimed that Sohlberg’s residence in the West Bank community of Alon Shvut contravenes international law.
As a result, the group said, his appointment was “invalid and must be canceled.
“Judge Sohlberg, who belongs to Israel, the occupying power, did not settle in the occupied territories because he was coerced or had no choice, making the act illegal and morally repugnant,” Yesh Gvul contended. This, it said, should make Sohlberg ineligible to serve on any bench, let alone the Supreme Court.
But the High Court, in a ruling issued after only a few hours of deliberation by justices Isaac Amit, Esther Hayut and Uzi Vogelman, rejected the argument. They noted that the objections the movement had submitted to the appointments committee had reached the panel for members’ perusal, “and one can assume the issue of the respondent’s [Sohlberg’s] place of residence was known to them.”
Backed up by Basic Law
Amit, who wrote the ruling, added: “I checked the Basic Law: The Judiciary again, and nowhere did I find that the respondent’s residence in Alon Shvut constitutes a hindrance to his serving as a judge, including a Supreme Court justice – not to mention that the respondent has been a sitting judge for many years. But as the petitioners themselves noted, they had never raised this claim against the respondent until now.”
Amit noted there was no legal precedent for assuming that a person’s place of residence is a reflection of his integrity in general, and of his judicial integrity in particular.
“Just to be sure, I also examined the judges’ ethical code, and I did not find that one’s place of residence constitutes an ethical violation,” Amit wrote.
Justice Noam Sohlberg will be a kind of minor defect in the mask, which will peel off a bit of the respectable, enlightened and democratic facade of the Supreme Court – even as it sits pale, cowering and nearly toothless.
By B. Michael, Ha’aretz
It was July 2003. A colleague phoned and with amused anger informed me that the now-defunct religious Zionist newspaper Hatzofeh had written that I was “one of the greatest anti-Semites in the world.”
One of the greatest anti-Semites? Moi? I’m not worthy. I’m not even among the top 10.
I found the article. To judge by several pieces written by the same person, the writer betrayed a tendency to go off the track even more often than Israel Railways. And still, I consulted learned friends, and they all decided: libel. You have to sue.
The lawsuit was filed, and Noam Sohlberg was named as the presiding judge. One of the learned friends hastened to advise me: “Demand that he recuse himself. The woman attacked you because of things you wrote about the settlers. Sohlberg is a settler. He will rip you to shreds.”
I straightened my back proudly, like a Polish officer on his horse, and declared: “I won’t disqualify a person because of his place of residence.”
So he ripped me to shreds.
The ruling ranged from strange to absurd. It was an attempt to alter the facts to suit the outcome. I read, laughed and appealed. Sohlberg’s ruling was overturned very quickly, Hatzofeh was required to apologize, and I once again learned the truth of the proverb that where you stand depends on where you sit (or settle ).
I have no illusions that such a minor ruling carried great weight with Sohlberg’s fans. I assume that his ruling acquitting Border Policeman Shmuel Yehezkel of manslaughter after he shot an innocent man named Samir Dari in the back in 2005. The judge accepted Yehezkel’s claim that he felt threatened. “The accused made a terrible mistake,” the judge wrote. “He killed the deceased for no reason.” But Sohlberg acquitted him nonetheless.
A great deal has been written about that ruling. But instead of rehashing it to reinforce my joy at Sohlberg’s appointment to the Supreme Court, I would like to give the floor over to German playwright Bertolt Brecht. As the Weimar Republic was coming to an end, he wrote a play called “The Exception and the Rule,” about a wealthy merchant from the ruling class who murders a poverty-stricken porter. The merchant is brought before a judge and claims, of course, that he felt threatened.
The judge turns to the accused and says: “You want to say that you assumed, and rightly so, that the coolie must have something against you. In this case you really did kill an innocent man, but only because you had no way of knowing that he was innocent.” Then the judge acquits the accused.
It’s as though Brecht, a prophet in his rotting homeland, foresaw Sohlberg’s ruling and summed up its logic in a sharp, penetrating and accurate satirical play.
The ruling in my libel suit is, naturally, far poorer in satirical material, but I insist on believing that it too made its modest contribution to Sohlberg’s election. And I’m proud of that, because in my opinion, the Supreme Court has long been ready, and has even been crying out, for a figure of that kind on its benches. He will be a kind of minor defect in the mask, which will peel off a bit of the respectable, enlightened and democratic facade of the Supreme Court – even as it sits pale, cowering and nearly toothless.
And the State of Israel no longer deserves a Supreme Court without Sohlberg. It deserves a court in its own image. Someone “representative,” as the MK Zeev Elkin types are loudly demanding. We should do as they wish. Because from now on, the court really is far more representative of the State of Israel. It suits the state far better.
And Sohlberg – along with his rulings and the land on which he lives (which on June 5, 1969, was seized for “military purposes” ) – will also make it somewhat more difficult for the High Court of Justice to continue to boast of statesmanlike behavior and to hide behind judicial robes, as it seeks to free itself of the threat of intervention from a foreign court.
And all of that is good and right and worthy, because evil – just like justice – must be seen, not just done.