Supreme Court President Aharon Barak was once asked if his view 'that everything is justiciable' would extend even to issues of IDF troop deployment in wartime. He answered that, at least in theory, it would. Two recent decisions of the Supreme Court suggest that, as is so often the case, theory is moving ever closer to practice.
Last month, the Supreme Court awarded NIS 1 million in damages to a Palestinian who was shot four times in the lower body as he fled from undercover agents whose car he was stoning.
The court ruled that the pursuing soldiers were required to coordinate their firing with one another and to fire serially and not simultaneously. In effect, the court rewrote the IDF rules of engagement for the pursuit of those engaged in lethal actions against Israeli citizens and soldiers.
Petitioning the court for a rehearing, State Attorney Edna Arbel argued that the justices had taken leave of reality. Pursuing soldiers are often not in eye contact with one another, she noted, and are usually in no position to coordinate the order of firing. The court's ruling, she argued, failed to take into account the need to act quickly under conditions of extreme duress and danger. Those conclusions are hard to deny.
The more celebrated intervention of the court in IDF internal decision-making, of course, was the court's denial of a promotion to Brig.-Gen. Nir Galili because of an improper sexual relationship with his 19-year-old female assistant.
Chief of the General Staff Shaul Mofaz had recommended Galili, as had Mofaz's predecessor Amnon Lipkin-Shahak, for promotion and to head an army corps. Defense Minister Moshe Arens, like Yitzhak Mordechai before him, ratified the recommendation.
The relevant criteria for the chief of staff's decision were not in dispute. On the one side, the value of Galili's military service to the state and the fact that he had already been punished with a two-year-denial of promotion; on the other side, the message conveyed by his appointment to fellow officers, the soldiers under their command and the public at large.
Everyone, including Galili, agreed that whatever the nature of his relations with the petitioner (she never testified in any judicial proceedings), he had acted reprehensibly, and Mofaz and Arens informed the court that they had carefully weighed the seriousness of his conduct before reaching their decision.
In the end, however, Mofaz said, his decision had been determined by the necessity that the most talented possible commander lead the corps, which would bear the brunt of fighting in any foreseeable war. Galili's 26 years in the army had shown him to be one of the best fighters and commanders.
In overruling Mofaz's decision, the court gave absolutely no deference to his weighting of the relevant factors and simply substituted its judgment for his. Justice Tova Strasbourg-Cohen's opinion pointed to no internal army regulation or Knesset statute in effect at the time of Galili's army disciplinary hearing that required a stiffer punishment than he received.
Basically, Strasbourg-Cohen wrote an op-ed explaining why she gave greater weight to the social implications of the promotion. In both her questioning of attorneys and her opinion she seemed more concerned with showing that the decision was proper on feminist grounds than on legal ones.
Thus in a bow to Kate Pollit and others who argue that all the hoopla about sexual harassment and date rape creates an image of women as weak creatures in need of protection, Strasbourg-Cohen was careful to point out that the decision should not be construed as suggesting that a 19-year-old women is not a fully autonomous adult capable of making her own sexual decisions.
The court gave absolutely no weight to the military implications that motivated the unanimous decision of two chiefs of staff and two defense ministers.
In a breezy aside, Strasbourg-Cohen wrote that she found it hard to believe that any one officer can be so important to the IDF. That conclusion will come as a surprise to any student of the initial tank battles on the Golan Heights in 1973, in which the initiative and courage of individual commanders played a decisive role in a war that could very easily have been lost.
FOR what it's worth, I happen to agree with the court's policy conclusions.
The highly sexual atmosphere of the army - the selection by top officers of the prettiest recruits for their secretaries, the presence of female soldiers as 'morale boosters' attested to by many top generals - is among the most negative aspects of the IDF.
Certainly Galili is just one in a long line of top commanders, many of whom went on to even better and bigger things, who was not a model of sexual propriety. Of course, the creation of that highly sexualized atmosphere was hardly accidental. Israel has long been the only non-revolutionary society with compulsory military service for women, even in peace time.
The issue, however, is not whether or not we agree with a particular policy judgment of a panel of judges, but whether we can tolerate a situation in which three justices substitute their policy views in every area of life for the judgments of those upon whom authority is conferred by statute.
The court consistently confuses the issue by handing down its decisions without opinion and only supplying the legal basis at a later date. Thus public debate focuses exclusively on the court's policy conclusions, not its authority to substitute its policy preferences.
Israeli democracy is atrophying as a consequence of the court's repeated interventions. It's far easier to persuade three judges of one's policy preferences and hire a PR man to influence them, as the petitioner did in the Galili case, than to educate the public, lobby Knesset members and public officials, and try to win support of new statutes.
In our heart of hearts, I suspect many of us believe that an enlightened despotism with ourselves as despot is the ideal form of government.
(Democracy is our bet that we would not be the despot chosen.)
And people who are paid to have opinions are particularly prone to such fantasies. But every time I imagine how nice it would be if my op-eds could be translated immediately into law, I remind myself that Tommy Lapid's have a far better chance of becoming law.
We should carefully consider before we allow the Supreme Court to become our modern enlightened despots enacting its editorials into law.
Related Topics: Israeli Supreme Court
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