January 2007 – Aharon Barak, outgoing President of Israel’s Supreme Court

As Aharon Barak’s retirement as Supreme Court President drew near, the farewell ceremonies have multiplied – and in all of them, he was showered with superlatives bordering on a personality cult. It ended with a bang, in the official Knesset ceremony with all the state’s “who’s who” present: Barak gave a ceremonial farewell speech, and his successor Dorit Beinish was sworn in.
    What wasn’t said about him? That he is a judicial genius, that there wasn’t and will never be a man like Barak (Beinish’s word in her coronation speech), that he’s been Israeli democracy’s guardian angel, defender of the rule of law, a true liberal, a champion of human rights, a philosopher of law, and on and on. In short, just like the saying about Maimonides – “from Moses till Moses there was no one like Moses”, similarly for Barak – ” from Aharon till Aharon there was no one like Aharon”.
    I listened and read all the superlatives, while pinching myself: is that the Aharon Barak I know? After all, my friends and I have been struggling all these years for human rights and democracy, and somehow – not only have we not found Barak on our side, but amazingly he was almost always facing us as an opponent. No doubt about it: Barak has succeeded in creating around him a “human-rights man” aura even outside Israel. This is a huge propaganda feat, almost unparalleled in human history – considering that Barak is, to a large extent, the judicial designer, enabler and backer of the regime of human-rights abuses in the Occupied Territories.
    Had Israel continued to exist only within the 1967 borders, one could talk about limited sparks of liberalism, human rights and democracy in Barak’s legacy. But 40 years of Occupation that have turned Israel into a colonial power, controlling another nation and perpetrating numerous war crimes, have also made their dark mark on the state’s character and on its judicial system. And Barak has a founder’s share in that respect.
    Barak was the “judicial commander in chief”, who legitimized almost all the injustices of the occupation. He has led Israel‘s judicial system into the role of indentured servant to the security forces – the IDF, the Shin Bet (domestic secret service), the Mossad and the settlers. He justified shooting at civilian populations; legalized land confiscations, home demolitions and other forms of collective punishment; approved administrative detentions (imprisonment without trial), the Apartheid wall, the distortions of the Occupation’s military tribunals – and torture (yes, in spite of the 1999 verdict that ostensibly forbade torture, he actually left the door wide open to continue them under a “necessity” clause, and indeed they have continued in full force). The Grand Finale was his last verdict, in which he has imprinted yet another Kosher stamp, this time on the policy of extrajudicial executions ( a.k.a. “targeted killings”).
    Barak had a unique talent for wrapping the harshest anti-human-rights verdicts with flowery, saccharine words paying lip-service to the very same human rights and democracy. From this aspect, Barak was the master of Orwellian language, and his verdicts are rife with it. The theme Barak has intended to pass on, a theme running throughout his judicial path is “balance”. In his verdicts as well as in his speeches, Barak repeatedly emphasizes “the need to balance between democracy and human rights on one hand, and security needs on the other hand” . Miraculously, whenever Barak perceives a conflict between rights of Occupied Palestinians and “security”, “security” nearly always wins the day. Under Barak’s leadership, the despicable “one side present” judicial practice has become entrenched: the Court hears Shin Bet, IDF and police officials with the defendants and their lawyers not even present. The latter therefore remain in the dark as to the evidence against them, and are not even allowed a cross-examination. No administrative detainee can attack the Shin Bet’s arguments for his detention, because he does not know what they are. People have been arrested and re-arrested for consecutive half-year periods that extended into years, and every six months the empty exercise of “judicial review” took place – consisting simply of information handed over to the judges “with one side present”, and the detention is of course re-approved. In some cases, even someone who was released from jail like prisoner of conscience Mordechai Vanunu, has been placed under limitations without knowing their basis, because everything has been done in the justices’ closed chambers “with one side present”.
    Barak has been a major partner in embedding Occupation language within the Israeli discourse. Israel is not an occupying power using state terrorism, but is “fighting against terror”. On the other hand, Palestinians resisting Occupation and fighting for liberation are always “terrorists”. The Apartheid wall is “a security fence to prevent terror”. When this “fence” bisects the Jerusalem suburb of A-Ram, splitting families, cutting children off from their schools, separating patients from doctors and hospitals and employees from their workplace – in short, turning their lives into a hell on Earth – all this is “proportionate damage”: yet another term to be civilized by Barak, making crime and bureaucratic evil more palatable. The settlements themselves are not war crimes (in blatant breach of the Geneva and Rome Conventions), and the settlers are not war criminals or even robbers of a neighboring nation’s land, but rather “Israeli localities and citizens, whose protection is the state’s duty”. As to administrative detainees, their imprisonment is always on behalf of “public security”.
    All these wrongs, part of Israel‘s aggression against the Palestinian people, are of course for the good of Israel‘s security. And they are all perpetrated as part of a “democracy defending itself” – another Orwellian expression that Barak uses in his latest verdict justifying extrajudicial executions. It is not the Palestinians who are defending themselves from Israeli Occupation, but rather Israel who is a “democracy defending itself”.
    Many commentators ascribe a great significance to the “constitutional revolution” declared by Barak upon the passage of two Basic Laws [1] in 1992: “Law of Human Dignity and Liberty” and “Law of the Freedom of Profession”. Indeed, as far as Israeli citizens are concerned – especially the Jewish ones – these Basic Laws have had some influence upon Supreme Court rulings. However, in the Occupied Territories and as far as Occupied Palestinians’ human rights are concerned, there is no trace for Human Dignity or for Freedom of Profession. Barak’s pro-oppression rulings since these Basic Laws were passed have been essentially the same as those before them.
    As a test case that exposes the true Barak, here is High Court of Justice case 72/86, whose verdict was given on March 1986 – pre-Basic-Laws, pre-Intifada. The plaintiffs were three Hebron shop owners, who claimed that the Occupation forces have limited their ability to make a living, by setting up fences and carrying out harassing inspections of every Palestinian entering their market. The plaintiffs argued that these policies were intended to ‘dry them up’, to force them to leave the market in order to ‘Jewify’ the shops [the market adjoins the Jewish settlement inside Hebron – AO]. The plaintiffs went so far as to suggest alternative ways to safeguard the settlers, while still enabling them to make a living (for example, by turning the street into a pedestrian mall). The military attorney representing “the military commander of the Judea and Samaria region” and “the military commander of the Hebron region” (the responders), argued that there is no choice but to fence the shops in order to protect the “new residents” [a sanitized term for settlers – AO].
    Barak presided over the case (joined by deputy President Miriam Ben Porath and Menachem Elon). He wrote the verdict and his colleagues signed their approval. It was during his early years as a Supreme Court justice, not yet its President. Barak rejected the plaintiffs’ arguments, stating that
    “…there is no doubt that the responders have the authority to take precautions needed to protect Beit Hadassah’s residents. Clearly, this authority is established regarding the new residents, who are part and parcel of the IDF forces”
    (Note the familiar symbiosis between “new residents” and “IDF forces” – GS). He also wrote that
    “indeed, the measures taken harm the plaintiffs’ income, but in essence their rights are being preserved.”
    (A thing and its opposite in the same sentence! – GS) Barak rejected the ‘Jewification’ argument, and stated that
    “…there is no basis to the claim that the responders acted out of a wish so ‘Jewify’ the shops.”
    And to make it clear who’s boss, Barak also fined the plaintiffs with 1,500 NIS “legal fees” – money that doubtlessly helped fund the Occupation army’s harassment of the plaintiffs – the “harass and make a profit” approach. We also know what has happened to these shop owners since then: they have indeed been dispossessed by Hebron‘s settlers.
    This verdict is the Barak method in a nutshell – a lopsided “balance” that wondrously always works in favor of the Occupation and the Occupier. The method would continue and even strengthen during his Presidency years – until the final verdict approving extrajudicial executions. Subjugation of Israel‘s judiciary to its perceived military and political needs did not begin with Barak. Justice Shamgar, his predecessor and a former IDF attorney general, was among those who had laid the method’s foundations. But it was Barak who advanced and developed it to near-perfection.
    Whoever wonders about the sources influencing Barak’s judicial world-view, will find many references. In his public speeches and his writings, Barak does not hide his being a Zionist and his adherence to the state’s definition as “Jewish and democratic”. He sees no contradiction between the two adjectives, even though his own rulings serve as a prime example for this contradiction. The Holocaust takes center stage for Barak. He is a Holocaust survivor, and like many others in Israel‘s upper echelon he emphasizes the Holocaust as a reason to maintain a strong military. In a speech given at the Israeli lawyers’ association convention in May 2002, he talked about Israel as the thing most dear to him in his life, and placed supreme importance on the IDF – again, as a Holocaust survivor. ” What is the lesson I’ve learned? [from the Holocaust – GS] The importance of the army.” As part of his famous “balance”, he later mentions the “importance of the individual, of liberty and dignity”. But time and again, we’ve seen how the Holocaust is being abused as a pretext to racist rulings against Palestinians (on both sides of the pre-1967 “green line”). After all, these “…individual, liberty and dignity” that are ostensibly so important to Barak (he repeats these mantras ad nauseaum in his verdicts, books and speeches), vanish into thin air whenever one crosses the “green line” into the Israeli Apartheid state. Even within the green line (Israel proper – G.S), these supposedly sacred principles have been greatly eroded whenever the case involved Arab citizens, or in some cases left-wing activists.
    Barak has always emphasized that Israel is a state ruled by law, and that the Court is the authority for interpreting the law. Therefore, according to the Barak interpretation, Israel’s actions in the Occupied Territories – the killing of thousands of Palestinian civilians, including women, the elderly and nearly a thousand children; the demolition of thousands of homes belonging to innocent Palestinian families; the confiscation of hundreds of thousands of acres and the wholesale uprooting of orchards (an act receiving the sanitized term “exposal”); the daily harassment and humiliation of millions of Palestinians at checkpoints – all these, according to the Barak version, are compatible with a democratic rule of law. But a true advocate of human rights would never accept such an interpretation; indeed, for such an advocate, Barak’s interpretation is blatantly illegal.
    If we judge Aharon Barak by the bottom line of his pro-Occupation, anti-human-rights rulings, we’ll conclude that he has failed to learn the Holocaust’s main lesson: human rights are universal. They encompass every human being and traverse national and ethnic borders – as was clearly stated in the Universal Declaration for Human Rights (one of the UN’s founding documents, adopted in 1948 as a direct lesson of the Holocaust).
    The damage that Barak and his colleagues have done to Israel‘s democracy, their contribution to the strengthening of racist, nationalist, fundamentalist and totalitarian tendencies, is beyond measure – because of the Court’s huge prestige. Many Israelis proceed in their daily lives with a clean conscience, feeling that the Occupation’s atrocities are “legal” and “not as bad as some Israel-haters claim” – because after all, our super-human-rights-sensitive Supreme Court has given these policies its blessing. But Barak’s unjust verdicts did not stop at the green line. They come back to us like a boomerang, in the form of increased violence in all walks of life and police brutality. Many policemen and Shin Bet officers who were trained in the Occupied Territories and practiced ‘authorized’ violence there, bring their acquired habits in other roles within Israel proper.
    There are other, more professional aspects to Barak’s legacy (for example: the weight of the confession in one’s interrogation), and in the social-economic sphere. In some key rulings, Barak defended privatization and Big Money, abused striking workers and refused to an appeal requesting the Court to define human rights in the social-economic sphere. This essay has focused on Barak’s destructive role regarding the Occupation. The intent was not to present an “objective, balanced” and academic picture, but rather to show a side of Aharon Barak that the mainstream discourse does not discuss.
    Finally: the experts are divided on whether Barak was justified in proclaiming that two Basic Laws are a “constitutional revolution” – but if we accept Barak’s declaration at face value, his revolution deserves the words written by George Orwell on the back of his book “Animal Farm”:
    “A revolution that has deviated from its course, with excellent explanations and excuses given at every step of the way en route to the complete distortion of the original ideals.”

By Gideon Spiro (Translation: Assaf Oron)

Today’s recommendation:

אהרן ברק, קשקשן בלתי-נלאה (ג): כמה שנים צריך כדי לומר בלה-בלה-בלה?