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Daphna Golan
Faculty of Law, The
Hebrew University of Jerusalem
Toward the end of the Apartheid era, a South African
judge asked me why it is that at international academic conferences in Europe and the US, great pains are taken to avoid
sitting next to him or his fellow South African judges, while Israeli judges
are surrounded by a sympathetic and respectful audience. The debate over
whether to appeal to the Supreme Court pertains to the issue of the position of
Israeli judges within the international legal community and how to bring them
face-to-face with the cumulative implications of their rulings. However, I
believe the debate should be expanded on three levels.
Firstly, it must be ascertained whether all options
relating to Supreme Court appeals have been fully explored. In South Africa,
human rights organizations appealed to the court throughout Apartheid because
they believed cracks could be found even in the discriminatory apartheid-based
laws.
Using a strategy they named “the losing case”, South
African human rights organizations filed thousands of petitions on behalf of
Blacks arrested in “White towns” without ‘pass books’. After years of rejected
petitions, a “technical” ruling was delivered that recognized a contradiction
between two laws relating to Blacks’ rights to live in “White towns” and the
entire set of laws regulating Black movement crumbled. Can one safely state that an Israeli
Supreme Court ruling will never generate meaningful change?
Secondly, the debate should encompass alternative
strategies. In South Africa
appealing to the court was one strategy of many, while in Israel, Supreme
Court petitions constitute human rights organizations’ main strategy. The
question is then under which circumstances appeals should be filed and what
alternative strategies should be developed.
Finally, the debate cannot be limited to petitions
related to the occupied territories as this presupposes a substantial division
between the occupied territories and Israel, which, though anchored in hundreds
of laws, military regulations and verdicts, is imaginary and contradicts basic
concepts of human rights.
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