"The government, in its coalition power, is predatory towards the court" (Dorit Beinisch) • "If public trust means that the public is biased by decisions, then we are in trouble" (Aharon Barak) • Retired Supreme Court justices give a rare glimpse into their worldview in a new series in " Here 11 "
"MKs do not want trouble makers," says Dorit Beinisch, retired Supreme Court president.
"They do not want anyone to disturb them. There was a newspaper that acted directly against my appointment to the presidency of the Supreme Court (in 2006; HG), and Haim Ramon was associated with him.
There was a huge campaign in Yedioth Ahronoth, with Pike News headlines every day.
As if we should strive for the spirit of the entire public, in all its sectors, to be comfortable with the court.
"It was an irrelevant war. There was an alliance between Ramon and Prof. Daniel Friedman and Yedioth Ahronoth. People said to me, 'How are you doing with this?' .
Beinisch was appointed president on September 17, 2006.
"Daniel Friedman was very bitter against the system," she says.
"He wrote shocking articles in Yedioth Ahronoth before being appointed Minister of Justice in the Olmert government (February 2007; HG).
Olmert called me and said: 'I do not want you to hear about it in the media.
I decided to appoint Danny Friedman as Minister of Justice, and do not worry, he promised me that he would be fine. "
Beinisch says this in a rare interview with the docu-series" Judges of Flesh and Blood ", created by Naftali Glicksberg (Monday at 9:15 p.m. 11). Retired seniors, including four who served as Supreme Court presidents, to the rulings and controversial issues they dealt with - including judicial activism, the Infiltrators Act, Haredi recruitment, targeted assassinations, etc. Some have never been extensively interviewed, and now reveal for the first time what motivated them when receiving The decisions.
"Demonstrate is allowed. Let them demonstrate"
The Israeli Democracy Index of the Israel Democracy Institute, published last month, revealed a massive drop in public confidence in the Supreme Court.
Last June, the top gained 52 percent confidence, while in October the number dropped to 42 percent.
However, the Knesset enjoys much lower confidence percentages - 21 percent in October, compared to 32 percent last June.
The parties, that is, the MKs themselves, are gaining 14 percent confidence in October, compared with 17 percent in June.
Beinisch, 78, who served six years as president, expresses concern about the status of the Supreme Court in the face of attacks he has suffered in recent years. "The goal is to erode the power and powers of the court," she emphasizes. "It is said that the court is harming the Knesset.
And I say that the court has defended the Knesset in a great many decisions, in order to give it the proper status, as opposed to the power that the government and the coalition have.
Because the government, in its coalition power, is predatory towards the court.
The court cannot capriciously interfere with legislation.
His power to intervene stems from the Basic Laws, the ones that restrict the Knesset with legislation that violates human rights.
"" Politicians who criticize the Supreme Court this morning and tonight have never read a Supreme Court ruling from beginning to end, "accuses Justice Eliyahu Matza, 86, who served. In the Supreme Court from 1991 to 2005. "They just left the courtroom and have already declared that the verdict is wrong and wrong."
Retired judge Aharon Barak, 84, president of the Supreme Court from 1995 to 2006, also does not spare his tribe from politicians. " The government, it has nothing but what the law has given it, "he says." Therefore, as soon as the government says 'there is a political problem here, and even if I act against the law, it is good for society' - sorry, no.
He can not act like that.
Because once there is no law, the government falls.
He is not, he does not exist.
The law established it.
The law established the Israeli government, the Knesset of Israel, the ministers, so they can only act by law.
So, how can they come to this conclusion, that I will not discuss a political issue?
That they take politics out of the legislation. "
The judges refuse to be moved by the data indicating a decline in public confidence.
"If the public's trust in the court means that the public is devastated by the decisions, then we are in trouble," says Barak.
"This is not how I understand the concept of 'public trust'. Public trust, in my view, is the public trust in the integrity of the judge. Of course. It's the public's trust. Therefore, even the party who lost the trial believes.
"I do not accept the claim that the court is empowered to defend itself.
The court is not my mother's store, which I want to protect.
The court is designed to protect human rights, and it does not deserve him to set foot.
Because once there is a law on a particular question, the governmental authority must act. "
Retired Judge Yitzhak Zamir, 89, who served on the Supreme Court from 1993 to 2001, says that" I can not even separate being a retired judge from being a citizen.
I feel very bad with all the attacks that are incitement, sometimes aggravated, against the court.
Demonstrate is allowed.
This is a democratic right.
So whoever is not satisfied with the Supreme Court, can demonstrate against him.
We will demonstrate.
"Every judge is influenced by values, but every judge must act according to the values and principles accepted in Israeli society, the values of a Jewish and democratic state.
" The relationship between the court and the public is compared to the relationship between a dog and its master.
A dog tends to run in front of his master, but from time to time he stops and looks if a distance is not too great, if he has not lost his master.
Need to keep in touch.
He can go a little further.
This is what the court is trying to do.
"A minister in the government lives less within his people than a judge. You know, a minister has the secretary and the speaker and the driver. The judge does not have all that. A judge gets up in the morning, gets in his car like any man, stands in traffic jams, goes to the supermarket to buy, if his wife sends him. Friends "His are the friends who have always been. He is no different from any other person."
"The legislature can be wrong"
In 2007, thousands of infiltrators from Sudan and Eritrea began entering Israel.
Many of them came straight from the Egyptian border to Tel Aviv, were crammed into tiny apartments in the south of the city or sat on the grass and waited for redemption.
The residents of South Tel Aviv, for their part, felt that their neighborhood was deteriorating into a kind of third world country, and that violence and crime were on the rise.
In 2011, the government initiated the amendment of the Infiltrators Law, so that they could be sent to prison for up to three years, and the establishment of the Holot detention facility in the Negev.
The amendment to the law was approved in 2012 by a majority of 37 MKs against eight. Human rights organizations claimed that these are refugees fleeing dangerous countries, and therefore should be granted political asylum, and that their imprisonment without trial violates their human rights.
Petition of five infiltrators to the High Court in October 2012 reversed the law, causing a huge storm in Israel.
Nine Supreme Court justices ruled the law would be repealed, prompting a frontal confrontation with politicians.
Retired Judge Yoram Danziger, 67, who served on the Supreme Court from 2007 to 2017, defends the High Court's decision. "I do not want to talk about refugees, migrant workers or infiltrators, I want to talk about an Israeli citizen who violates his rights.
If you refuse to pay fines, can you be deprived of your liberty without trial for a period of three years?
Would anyone accept this thing?
Imagine the state legislating such a law, would not you repeal it?
Certainly.
"Come and say that every piece of legislation represents the public's view in its entirety, so judges should not interfere? We are not elected as Knesset members, but remember that in the Knesset laws are passed by a random majority, in a sparse presence. It is up to you, the judges, to intervene, it really does not impress me. "
The coalition introduced a softened law bypassing the High Court, which was approved in 2013 by a majority of 30 against 15 MKs.
According to the law, the infiltrators will stay in the facility for one year only, and the law will only apply to infiltrators who came to Israel from the date of the amendment.
It was further determined that the infiltrators will not be able to work in Israel.
This amendment was also rejected by the High Court. An expanded panel of judges ruled in September 2014, by a majority of six to three, that the amendment be repealed and that the Sands facility be closed. The
person who opposed the High Court's intervention in the law for the second time was then Supreme Court President Asher Grunis. (76), who was of a minority opinion.
"The Knesset changed the law, reduced the period of stay in the sands, and then it is a matter of debate whether the period should be eight months or 12 months. In my view, this is not enough for the court to intervene in the legislature's decision."
Retired Judge Edna Arbel, 76, who served on the Supreme Court from 2004 to 2014, believes the High Court's decision was completely legitimate, and attacks the Knesset for its very opposition. "It was right that they leave an infiltrator in jail for three years because he came here, knocked At the door and asked for help? "The
legislature stated.
" The legislature can also be wrong.
People come from places of distress. "The
legislature was elected in democratic ways. Why does the court intervene in this?
" Because the Knesset has determined in the Basic Laws that there is justification for repealing a law.
The Knesset made it possible.
This is the constitutional revolution, thanks to which the whole world praises and congratulates Barak, and here they only attack. "
Beinisch strongly opposes the statement of former MK Moti Yogev, who said in 2015 that" the High Court should raise a D9 spoon, and we, as a legislative system , We will know how to restrain the rule of law in the country.
The tail wagging the dog.
"" This thing doesn't just upset me, "she says." There are a lot of problems in the country that have a clear legal aspect.
This is a country plagued by violence, terrorism and corruption, and it needs to be fixed, not the court.
So true, do not like all the decisions.
But this is not the test. "
One of the recurring allegations against Supreme Court justices over the years is that they are all made of one piece - Ashkenazi, elitist and established.
" It is said that the court is made of one skin, and they are all from across it.
No bears and no forest.
All those sitting in the Supreme Court today are not from Merhavia.
"What to do, the court, in its basic structure - is elitist, because if you have not passed certain stages, you do not deserve it."
"Right to freedom of religion"
The corona plague has exposed Israel's soft belly when it comes to issues of religion and state.
The decision of parts of ultra-Orthodox society to ignore the guidelines and demonstrate in the streets turned the discussion of the epidemic into a discussion about the future of Israel - or rather, the question of who controls Israel, the government or the ultra-Orthodox rabbis.
But the tension between religion and state has existed since the first years of the state, and is well reflected in the rulings of the High Court.
"The secular public has the right to freedom of religion," said retired judge Ayala Procaccia, 79, who served on the Supreme Court from 2001 to 2011 "These things are part of our constitutional law, so these values need to be applied.
The Basic Laws speak of human rights, in which there is freedom of religion and there is freedom of religion, and the law must balance these two tensions.
The balance is between hurting emotions and the right to freedom of movement.
And if the right to freedom of movement increases, then in forgiveness, those who are offended by their feelings will hold back a bit. "
Judge Beinisch:" I think there is nothing more important than a Jewish state.
Israel is the national home of the Jewish people, it is the basis of the declaration of independence, and it is a critical component in our existence.
But if someone thinks that Judaism is expressed in a state of halakhah, he cannot accept my position. "
The judge found: "It would have been much better if there was a separation of religion and state. But we do not have this situation. We live in a whirlpool of religious values, which clash with liberal values, and the state should exist. So what do we do?"
Judge Barak: "In my first meeting with then-Justice Minister Ayelet Shaked, I told her: 'You are now the leader of a new party, and this party has put it as one of the flags of coexistence between religious and secular. Therefore, I suggest you address these issues, as issues where agreement can be reached. National '".
Retired Judge Zvi Tal, 94, who served on the Supreme Court from 1994 to 1997 and co-wrote the judgment in Alice Miller, presents a different opinion.
"Why not make a joint football team, boys and girls? Why is there no High Court for it?
Because in nature it does not go together.
What did Alice Miller herself do next?
You know what?
(After a High Court ruling that allowed Miller to enter screenings for a pilot course, she did not pass them; HG).
"We exaggerate in everything. As they have now done with ultra-Orthodox men and women, they do not want and can not be together religiously (refers to the decision of the District Court in Nazareth in August 2019, which forbade separating men and women in a performance of an ultra-Orthodox singer; HG).
No.
You will be together or you will not get a cultural performance.
I ask you, is this extremism acceptable?
This is nonsense. "
On the issue of recruiting ultra-Orthodox, the judges say they did not feel comfortable intervening, but ultimately decided they had no choice but to rule against ultra-Orthodox, even though it is a minority, and usually the minority is protected.
" This ultra-Orthodox group did not accept the court. In essence, too, the place of the state, "Beinisch emphasizes." This is not the case for a minority.
A minority is weak and needs court protection, right.
But it is a very strong minority, because strength or weakness are measured in strength and political power.
They are not a politically weak group, which is very significant.
The evidence is that we are dragged along with it to this day, with this problem. "
Judge Zvi Tal was the chairman of the committee that regulated, in the early 2000s, the continuation of the exemption for the ultra-Orthodox from enlistment in legislation.
"We suggested that a guy who has been studying at the yeshiva for several years can leave the yeshiva for a year, a decisive year. If he feels he wants to return to the yeshiva, he will return, but if he stays in the world of action - he will report to the recruitment bureau."
In practice, however, the law did not promote the recruitment of the ultra-Orthodox to the IDF.
"I strongly believed in the Tal Law, because I strongly believed in the gradual process it created," says Judge Eliakim Rubinstein, 73, who served on the Supreme Court from 2004 to 2017. Very positive.
But for all sorts of reasons, both of the ultra-Orthodox world and of the army, it has not been realized.
We gave another chance and another chance, and at some point they realized that it was not realized. "
Judge Beinisch:" There was a huge gap between the expectations and the results on the ground.
And here comes the value of equality. "
In 2012, the High Court, by a majority of six judges against three, rejected the Tal Law.
Judge Tal is outraged.
"Why did they disqualify? They said it was unequal. But it is a first step towards equality. The ultra-Orthodox are closed in the yeshiva, where is there equality? You will start with one small step. Slowly. But most of the six judges had no patience."
Judge Barak: "Or there will be no recruitment at all, they will say that only those who want to enlist - will enlist. But once everyone must enlist, it should apply to them as well (to the ultra-Orthodox; HG).
And the fact that there will be political consequences for some of them not being willing to enlist, and going to jail, etc., etc., is not my fault.
No I did it, you did it.
Once you have enacted a Basic Law: Human Dignity and Liberty, the rights under this Basic Law must not be violated, unless the law conforms to the values of the State of Israel.
"So who will determine the values of the State of Israel from them? You added even a Jewish and democratic, beautiful. So you put me into politics. Thank you. I do not come to you with complaints."
Maybe his honor is right, but ...
"Not smart? Yes, it could be."
"Security considerations"
Most judges are wary of getting into political issues.
However, Yoram Danziger does not hide his views on the treatment of the Arabs of Judea and Samaria.
"Is it possible that our political-security situation has led to a situation in which the rights of some of the inhabitants of this country are better and stronger than others? Yes, this is a result of decades of possession of territories other than ours, of control over another people.
" If you constantly put in front of your eyes the security considerations, and on the other hand the rights of the citizens living in the occupied territories, then you are sometimes forced to infringe on them.
Dozens of judgments can be seen as statements that include an understanding of people's suffering.
You understand the suffering caused to different populations, and (still) have to rule differently.
There is nothing to do. "
One of the most important issues for judges is the rulings of the Supreme Court on security issues. Most decisions supported the position of the defense establishment, and a minority opposed it - and aroused public outrage.
For example, last August, when the court ruled by a majority Opinions to revoke the demolition order issued for the house of the terrorist who murdered Golani fighter Amit Ben Yigal, three months earlier. Justices Menachem Mazuz and George Kara supported the decision, while Judge Yael Wilner objected.
"The wife and children are not attributed by the respondents any involvement in his actions. The father of the family - not with assistance, not knowing of his intention to take action, nor support in retrospect for his actions, "Mazuz wrote in the verdict and recommended converting the demolition into a partial seal." The perpetrator himself was captured and is on trial, and is expected to serve long prison terms.
"Therefore, the damage to the house constitutes, first and foremost, damage to his wife and children who remain living in the house, and whose demolition will leave them homeless."
Judge Kara joined this position: "From a sanction that should be reserved for extreme situations, which should be exercised sparingly, the use of the regulation has become a frequent, if not routine, use of the regulation," he wrote in the decision.
"Continuation of this policy, while relying on the assessment of security officials that it is a deterrent, and avoiding a substantive and in-depth discussion of the issues of principle that the use of this regulation raises, is a minefield in my eyes."
The retired Supreme Court justices have different views regarding the demolition of terrorist homes.
Some state that this is a legitimate step, and others move uncomfortably.
"Emergency protection regulations stipulate that the homes of terrorists may be demolished," says Yitzhak Zamir.
"In every court in the world, in the most enlightened countries, when the defense establishment comes in time of war and makes claims - the court tends not to stand in its way."
According to Eliakim Rubinstein, "You are not assuming that both the GSS and the army and intelligence are the doers of someone political who wants to beat the Arabs."
Aharon Barak, on the other hand, says he "feels very bad" with the claim that the High Court has become a kind of rubber stamp To the army.
"The reason I gave for approving the demolition is this: it could be argued that the terrorist's house was used by him for his sabotage purposes. Therefore, if he was in an apartment at home, and the parents did not know about it, then only his apartment you are destroying. That is my justification. I regret them. I think I was wrong. "
"I know the military well," said retired judge Dalia Dorner, 86, who served on the Supreme Court from 1993 to 2004. "In general, when I am told confidence, I do not honestly sing hope. I examine why confidence, how confidence. "To do that, we need balances. This is a worldview."
"Serious violation of human choice"
Shortly after Ron Arad's captivity in October 1986, Israel retaliated and abducted 19 Lebanese citizens as bargaining chips for his return.
But over time, the legal basis for their possession began to erode.
The fact that they were placed under administrative detention based on confidential evidence, even though they were not a ticking time bomb or a security threat, was legally problematic.
"Administrative arrests are one of the worst evils that judges in Israel, and in particular Supreme Court justices, have to deal with," Danziger says.
"I have encountered not in one case or two, but in many dozens of cases, that the period of administrative detention would have been longer than the period the man would have received had he been prosecuted for the offense he committed. Therefore it is a sick evil."
Judge Zamir: "Administrative detention is the most serious form of violation of a person's freedom. It exists in very few countries. A person is detained indefinitely, it can be for many years. He is not told why, he is not shown material, he is detained. The law states that detention The administration is allowed only for security reasons, and to prevent a security danger. "
In 1997, as part of a legal proceeding that was almost automatic until then, Judge Dalia Dorner, in a minority opinion, opposed the extension of the Lebanese administrative detention.
She argued that the procedure was against the law, since the detainees did not pose a security danger.
Two years later, during an extended panel hearing, her opinion was accepted by six of the nine judges, and the detainees were released. The late Batya Arad, Ron's mother, sharply attacked the decision, saying: "I feel the terrible betrayal of us, and especially of my son. ".
Judge Zamir, who was sitting at the hearing, says he did not feel any conflict at the trial.
"I, as a judge, act in accordance with the law."
Judge Barak, who headed the panel, also supported the release of Lebanese detainees, although over the years he had repeatedly confirmed their detention.
"I changed my mind," he says.
"Any of us can be wrong."
Dorner also reconciled today with the position she presented in court.
"You can't please everyone. I'm not sentimental. If I were sentimental, I would reject the decision. After all, I love the family (the Arad family; HG) more than the ones I returned.
I love them. "
Why did Judge Barak initially support the continued detention?
" I can understand, sentimentally, that it was difficult to tell the family that there was no chance.
These are difficult things.
This is sentimentality, I was not sentimental. "
Can the court not lose the people's trust in this way?
" No, the court will lose the people's trust if it judges according to the winds of the hour.
Alas. "The
judge found:" I'm not sure it occurred to anyone, the matter of the loss of social legitimacy.
Judge based on fundamental values of human freedom, human dignity, that you do not take someone and put them in custody to achieve some political goal. "
It is not a political goal, to return a kidnapped.
" So what will you do now?
Will you kidnap any Palestinians and put them in jail until they return our soldiers from Gaza?
People who did not sin and did nothing, like that? "
Neither did Ron Arad or Avra Mengistu sin.
" Good. "
"This is not a political matter"
After the release of most of the Lebanese who were held as bargaining chips, two remained in custody in Israel: Sheikh 'Abd al-Karim Obeid and Mustafa Dirani, who were considered a security threat.
In 2000, while in detention, Dirani sued the State of Israel for NIS 6 million, claiming that GSS investigators had committed sodomy with him during the interrogation. This raised the question of whether it was legitimate to engage in a lawsuit, even if not in Israel. To continue the tort lawsuit he filed against the State of Israel, but in another hearing in 2015, the Supreme Court ruled that the lawsuit should be struck out. This was the latest ruling in the post of then Supreme Court President Asher Grunis, who also expressed resentment that the court calls for the destruction of The State of Israel.
Judge Danziger criticizes Grunis for the decision. "He adopted the rule of English law from 200 years ago, which does not allow the enemy to sue.
I do not agree with this approach.
In my opinion, this is the simplest case to rule on: a person has been harmed by the State of Israel.
He may be, for that matter, a hater of Israel, he may be anti-Semitic, he may be active in BDS, and he may be a member of one organization or another in Lebanon.
The doors of the court should be open to anyone who has been harmed by the State of Israel. "
Some argue that" the Supreme Court has become a branch of Meretz.
"" Come and say that because your legal worldview is that the person we harmed is entitled to claim it and prove it, Are you a member of Meretz?
What is the connection?
That is not a political issue at all. "
This explosive question, whether any person harmed by the State of Israel can sue in Israeli court, has led, among other things, to the claim that soldiers are afraid to act in battle, for fear of legal entanglement.
"The claim that every soldier will have to go with a lawyer is a demagogic claim," Beinisch says.
"I first heard it after we finished the inquiry committee in Sabra and Shatila (Beinisch then served as deputy attorney general and headed the team that collected the materials for the inquiry committee; HG).
My answer was that what is out of the question and forbidden is what every soldier knows.
All those who spoke before us knew what was right and what was wrong.
People know the limits of what is allowed and forbidden in a manifestly illegal ordinance.
These are not the gray border cases.
In extreme cases, everyone knows where he crossed the border. "The
issue of the rights of Palestinian prisoners was also raised in another incident, which took place in 1992. In response to the murder of Border Police officer Nissim Toledano, then-Prime Minister Yitzhak Rabin decided. To deport to Hamas 400 prisoners affiliated with Hamas - including Mahmoud a-Zahar, 'Abd al-'Aziz Rantisi and Ismail Haniyeh. Following an appeal by the Association for Civil Rights to the High Court, the judge on duty, Aharon Barak, issued an interim order delaying the decision.
The next day, at five in the morning, the judges appeared for a long hearing on the matter.
In an unusual move, then-State Attorney Dorit Beinisch refused to defend the state on appeal because she believed the deportation of the terrorists was illegal.
Beinisch says that since they knew about her opposition, the government hid the deportation from her until it was carried out.
"The night before, I was with Rabin discussing all kinds of security measures, and not a word was said about the possibility of deportation," she says.
"The next morning, the then Minister of Justice, David Libai, called me and said: 'Listen, I arrived late for the cabinet meeting, and orders have already been prepared here. They want to deport hundreds of people.' I told him: 'It is impossible. It is not legally possible.
' It was just the only case where I was not in the picture.
There have been calls from government ministers that I should be fired, but these are things that can not affect me.
Deportation was not by law, in any sense ... it's a very special area of security, which I dealt with, and I said: Look, it can not be protected, we do not know details about every person.
What happened was that they did not do the usual test, because they had to respond quickly.
"" A deportation order is an order that harms a person, "says Aharon Barak." When you give it, you have to hear it beforehand.
In this case they were not heard, and that was enough to justify an interim injunction.
In a state of law, even when the worst, worst person is expelled, he is heard first.
The famous hearing.
Not only is the prime minister entitled to a hearing, 400 Hamas terrorists are also entitled to a hearing. "
After more than 17 hours of deliberations, seven High Court judges approved the deportation.
Some of the retired judges express displeasure with the way the decision was made.
"If there was one trial in which I wish I did not participate - it was this trial," says Judge Eliyahu Matza, who opposed the deportation but eventually sided with Judge Shamgar in the final decision.
In 1994, a little over a year after their deportation, the deportees were returned to Judea and Samaria, among other things following an American threat to impose sanctions against Israel.
"Between worthy and unworthy"
Following the severe suicide bombings in the second intifada, in which some of the terrorists aided by Israeli residents who obtained their citizenship as a result of marriage to an Israeli woman, the difference between the judges came up again, with each bringing his own basket of values to the Supreme Court table.
In 2006, the High Court rejected the petitions against the Citizenship Law, which sought to prevent family reunification, by a majority of six to five, and the law was given the green light - although most judges believed it was unconstitutional: Human Dignity and Liberty. Was supposed to expire within a few months, so they thought there was no room for disqualification.
"There is an issue of security in the face of the right to family, which is perhaps the most important human right," says Ayala Procaccia. "There were judges who relied on the issue of security fully. .
I did not fully believe in security considerations, and I thought that what really stood behind this law was demographic considerations. "Is
it true to say that the state pulled out the joker that always wins - the security argument - to hide the fact that it is a racist law that prevents demographic considerations?
" , Not at all.
It was not in the state's affidavit, and I believe in the state. "
Judge Grunis:" There is no brother or nephew in history to a situation where there is a military confrontation, and one side allows uncontrolled entry of civilians of the other side.
I'm sure the security of the state is important to the other judges, but they see things differently. "
Judge Procaccia:" We did not discuss the demographic consideration, because the state did not raise it.
I went to the minutes of the Knesset debates and saw debates on demographics, which overshadowed the security issue.
Talk about demographics.
Because of these doubts, and this weakening of the state's reasoning, I thought that the right to a family was increasing, and that the Citizenship Law should be repealed.
But I was in the minority. "
Retired Supreme Court President Miriam Naor, 73, who was a member of the High Court and supported keeping the law intact, says that in this case it is much easier to have an opinion that says: Yes, enter (the country), everyone "He wants him to come in. It sounds better, it gets better headlines. The other judges did not make life easy for themselves, not really, they sat on the issue in all seriousness and seriousness. But they saw things differently. There is not always a consensus."
Judge Procaccia: "There is no doubt that the value burden of every judge is manifested. Absolutely yes. A judge without a value charge cannot function as a judge."
Judge Tal: "When you sit in the High Court, you do not distinguish between right and wrong.
You distinguish between right and wrong.
There you bring with you all your education and all your worldviews. "
"Judges are part of society"
On the issue of targeted assassinations, too, the question of what precedes what - security or human rights - is sharpened.
Over the years, judges have upheld the killings, though they could result in the deaths of innocent people.
"The rule is that targeted frustration is possible if certain conditions are met," says Aharon Barak.
"When you have the roof of a house, and you're afraid there's a bomb inside that house, and you can hit the house with a missile - you shoot and hit the house. All right. There are casualties? It's secondary damage, there's nothing to do. But if you suddenly find out there's a class "Of children, you just do not shoot. A professional soldier does not shoot."
Judge Beinisch: "The court does not grant a license to kill. You can deliberately thwart a person on the condition that you can not arrest him, when you know he is dangerous. Everything is done within the interpretation of the Second Protocol to the Geneva Convention - interpretation of international law. Limit to what is possible to achieve maximum security - you can block everything, close everything, impose a curfew on everyone. But it can not be done. The borders, very carefully, remain in the hands of the court.
"We understand that the public interest requires us not to abandon security, but We must also protect human rights.
If we break through this fence day after day after day, for years, and there is no framework, I do not know what we can get to. "
Judge Dorner:" The judgments of our court are that of appeals against international claims for war crimes. "
Justice Zamir: "The truth is that the Knesset has neglected the issue of human rights. Unlike other countries, where the constitution grants the rights. The legislature did not care at all."
Another issue that the retired judges are required to address is the evacuation of Gush Katif and northern Samaria in 2005.
The criticism leveled at the Supreme Court at the time revolved around the claim that most of the judges did not side with the evacuees, even though the High Court was perceived as protecting the weak. The judges, for their part, claim that this was a step the state had the power to perform. "It was a clear political decision," said Judge Beinisch.
Judge Procaccia: "The disengagement itself is a question of clear policy.
If there is a human rights issue, I will check the violation to see if it is in a legitimate framework or not.
That's what's done here.
We went in to check the components of compensation for the families who had to be evacuated. "
Judge Rubinstein, who was not part of the panel of judges, said that it was especially difficult for him to watch the evacuation of the settlers." It was heartbreaking for all of us, it was terrible. "
One of the main claims of the settlers was that for many days minors sat in detention and were not released, an act that was perceived as opacity by the judges.
Judge Procaccia says she was the judge on duty at one of these events, and is behind the decision she made not to release the detainees.
"It turned out that on the advice of the adults, the young people refuse to identify themselves. When they refuse to identify themselves, it is not possible to release on bail with conditions."
But you know it's a fault line between this public and the Supreme Court.
The experience of an entire group in Israeli society, going through trauma, and facing a bunch of lawyers with Poker Face, who do not understand them or give them a place.
In retrospect, it was not a mistake?
"I do not think the starting point of 'Judges with Poker Face and No Sensitivity to Trauma' is correct. Judges are part of society, and were partners in all the events and extraordinary sensitivity that Israeli society went through at that time. In turbulent times, there is great value in setting boundaries, so as not to reach To chaos.
"If you, as a court, are in a situation where serious offenses are repeatedly committed, by organized groups of young people led by adults to wage an ideological struggle, and I do not enter into the question of whether he is right or wrong - and you as a judge do not give the framework The obvious - this is a total bankruptcy.
Because there is no one else to do it. "
shishabat@israelhayom.co.il