Israel's Supreme Court has utilized international norms in deciding that Israeli soldiers cannot send Palestinian bystanders into the homes of suspected militants to negotiate the militants' surrender.
As there has already been a nearly-universally-disregarded temporary ban (also put in place by the judiciary) on the practice since 2002, it seems unlikely that the military will abide by the decision.
Given the unique nature of the Palestinian arrangement, the general practices of countries such as Belgium, Canada, and Japan (to say nothing of "dissenters" such as DR Congo, Cambodia, Serbia, etc.) would seem a poor means of evaluating the needs and experience of the Israeli army.
That said, since the Israeli judiciary seems to lack the muscle to enforce decisions such as this, it may prove a useful backdoor way of creating international good-will by paying lip service to the international view of the situation while still reaping the benefits of the practices they have found expedient.
3 comments:
The bystanders willingly entered into the negotiations - that should be legal, if it isn't coerced volunteerism.
If the army can disobey the Supreme Court, which appears to be given a position similar to that in the US, what can the court do about it? Is the military now deciding the law? That could have bad, or at least very anti-democratic/republican consequences.
I do not know how Israel's Separation of Powers law works, nor how they distinguish Military vs. Police activities (I get the impression that they do not distinguish the two to the same extent that the United States does, but that the military has more of a direct jurisdiction over the issue of Palestinian militants in the outlying territories, which do not have an Israeli civilian police presence). As a practical matter, it appears that their Supreme Court is in much the same position as ours was when it attempted to curb Union Army abuses in the civil war: they were unable to interfere in actual operations nor punish individual soldiers for being the authorized actors of the state. See ex parte Milligan, 71 U.S. 2 (1866) (regarding the point that the court could not interfere with the suspension of habeas corpus but could, post-war, review the findings of military tribunals).
The question I attempted to raise was regarding whether the “rules” set up by some international panel in some leather-and-granite conference room in some city far removed from any fighting (at least, since 1945) should necessarily become the binding domestic law of a state with severe internal unrest. My understanding of the decision is that the ruling was not pursuant to a treaty that Israel had ratified, but rather the current international “opinion” (norms) regarding such practices, as revealed in such documents as the human rights manifestoes that are currently circulating among and by such NGOs as Amnesty International and the UN Human Rights Commission.
If, however, the Supreme Court knew they were powerless to change anything, but figured it would look better for the international community if there appeared that there was some internal reform going on, then it might be a clever way of gaining goodwill. They probably were not that clever. However, it would be problematic if the judiciary were able to subject the military to international ideas, passing them off under the guise of law.
More than I asked for - you sound like a lawyer.
I agree with your opinion on international norms: if they should be followed, it is the responsibility of the legislative or executive powers to decree so.
As for international goodwill, I think the media and hysteria-mongers are smart enough to realize it if the actions are still going on, and demand some sort of accountability for the military, never mind the US's Milligan. They may even decry the ineffectiveness of democracy as I have.
I'm disappointed that the court acted as it did, but in a democracy and many other forms of government it is very important to limit the power of the military, and make it subservient to the legislature and judiciary.
Then again, since the military answers to the Prime Minister, it could be said that he is responsible for their actions. And then we get back to the separation-of-power issue of who in Israel ultimately decides the law.
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