A popular maxim states that a wise man avoids troubles from which a clever man may escape.
I thought of these words of wisdom when confronted with the recent controversy over the judiciary abstaining from the ceremony commemorating the golden jubilee of Jewish settlement in the West Bank and Golan Heights.
In an invitation sent to Chief Justice Miriam Naor she was asked to attend an event marking “golden jubilee celebration of the freeing of Judea, Samaria, the Jordan Valley and the Golan Heights.” The invitation stated that the ceremony would take place in presence of the president, the prime minister, the culture and sports minister, education minister and deputy Knesset speaker MK Bezalel Smotrich and a member of the Supreme Court. Rejecting the invitation, Justice Naor stated that it would be inappropriate for members of the judiciary to participate in the event, which was of public controversy. Naor added that by so deciding neither the chief justice nor any of the Supreme Court judges were taking a stand on said the controversy.
Justice Naor’s decision brought about bitter attacks on her as well as the Supreme Court.
Culture and Sports Minister Miri Regev went as far as accusing Naor and the entire court of “bolstering those who boycott Israel, the BDS [Boycott, Divestment and Sanctions] movement and UNESCO.” Attorney General Avichai Mandelblit joined the chief justice’s critics, declaring that since the government had declared it a state event “it is appropriate that a representative of the court attend.”
One might wonder, though, what state we’re talking about here, since alongside the president and prime minister both the culture and sports minister and education minister, and even MK Bezalel Smotrich, were to be guests of honor. In view of which one might moreover wonder why the leader of the opposition was not invited to join them.
In the end Smotrich was replaced by the Knesset speaker and President Reuven Rivlin did not attend. One might wonder whether this means he, too, decided to “bolster those who boycott Israel, the BDS movement and UNESCO.” Another notable change from the original plan was that neither Regev nor Education Minister Naftali Bennett addressed the audience from the podium. Since Regev wished to prevent Yesh Atid leader Yair Lapid, MK Haim Jelin and Golan Regional Council Head Eli Malka from speaking, Regev had to declare that according to the official protocol only the president and prime minister were authorized to speak at the event. However, in a gesture similar to Prime Minister Netanyahu addressing the audience at the torch-lighting ceremony on Mount Herzl on the eve of Independence Day via video message, the two addressed the event via video clips.
The status of the State of Israel in the territories captured during the 1967 war is disputable.
In spite of some differing views, the consensus among the international community is that Israel cannot not legally annex the territories. Likewise most international lawyers challenge Israel’s right to establish settlements within the territories. Even regarding east Jerusalem the International Court of Justice declared that Israel holds it as an “occupying power.”
Indeed the common view is that Israel holds the territories under belligerent occupation.
At most they might be regarded as “disputed territories.”
The Edmond Levy Commission, established to examine the legal status of building in Judea and Samaria, rejected the notion that Israel’s status is that of a military occupier and stated that “Israel has had every right to claim sovereignty over these territories.” It nevertheless notices that Israeli governments “opted not to annex the territory, but rather to adopt a pragmatic approach in order to enable peace negotiations with the representatives of the Palestinian people and the Arab states.” One should mention moreover that the government failed to adopt the Levy recommendations in full.
With much wisdom the Supreme Court abstained from openly confronting the prevailing opinion of the international legal community as to the status of the State of Israel in the territories. Instead it used international law doctrines to justify the settlements.
This approach proved beneficial as when the court successfully challenged the legal opinion of the International Court of Justice in the matter of the security fence.
Had the Supreme Court taken part in the “celebration for the freeing of Judea, Samaria, the Jordan Valley and the Golan Heights” it might have gained points from the organizers of the event, yet the damage to the State of Israel would have been obvious and instant.
Since who in the international community would have taken seriously the decisions of the Supreme Court regarding the territories after it had taken part in the “freeing” celebration? In inviting the Supreme Court to take part in the celebrations the organizers demonstrated neither wisdom nor cleverness. This was a true lose-lose case. Had the chief justice taken part in the event either personally or by asking another justice to attend, both the court and the state would have been badly damaged.
When deciding to reject the invitation Justice Naor has been criticized as joining the BDS movement. The organizers would have been well advised to debate the issue in private with Naor before sending an official invitation.
Now that they caused damage they should not aggravate it. Yet which politician will pass on a golden occasion to strengthen his or her position in the primaries? And as far as the state is concerned – who cares?
The author is dean of the Peres Academic Law School and member of the Steering Committee of the International Consortium for Law and Religion Studies.