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Jerusalem Post editorial blames Supreme Court for contributing to death of cop by ruling

The Shuafat attack and others are an indication that while there is a danger
that the IDF might err on the side of Palestinian inconvenience, the Supreme
Court might err on the side of risking Israeli lives.

Courting security
Editorial – THE JERUSALEM POST Jan. 26, 2008

Border policeman Rami Zoari, 20, was murdered Thursday night and the
policewoman on duty with him was seriously wounded in a shooting at a
roadblock that was being manned late at night, contrary to their commander’s
best judgment.

What befell the two young conscripts was, top Border Police officials said,
“a disaster waiting to happen.” The victims were described as “sitting
The only reason they were there at night, according to the Israel Police’s
Insp.-Gen. David Cohen and Jerusalem District head Cmdr. Aharon Franco, was
High Court ruling that the police had no option but to obey.

The roadblock in question is the smaller and more vulnerable of two
checkpoints into Shuafat in northern Jerusalem and is earmarked for
pedestrians only. It handles less traffic than its larger neighbor 200
meters away, whose guards are protected by concrete barriers and narrow
approach tracks, which make passage possible only in single-file.

Without such roadblocks, assailants – such as those who perpetrated the
latest attacks – would be free to enter Jerusalem and beyond.

The police had wanted to channel all movement after sundown to the larger
crossing. But the Supreme Court, sitting as the High Court of Justice,
ordered the smaller access route between Shuafat and Givat Ze’ev open 24
hours a day, out of concern for the quality of life of Shuafat’s residents.

“If it were up to me,” Franco declared, “this crossing would have remained
closed, but the Supreme Court imposed its will.”

The police and the IDF are security professionals, whose judgment and
experience ought to serve as guidelines for judicial authorities. Those
authorities, in turn, presumed to be as concerned about the safety of all
Israelis as any branch of government, ought not to function like detached
and indifferent UN observers.

That does not mean the courts need routinely accept all such defense
establishment recommendations. But it does mean that the greatest caution
should be exercised when they are disregarded, as the court seeks to balance
security needs with the imperative for “proportionality.”
The recurring judicial argument is that minimizing the grave risks cited by
the defense authorities may cause “disproportionate interruption” to the
Arab population’s “fabric of life.”

However, there are no precise and objective gauges for measuring such
proportionality, and all too often humanely-motivated court verdicts have
devastating results.

In 2004, for example, the court prevented the IDF from leveling a building
overlooking the Kisufim junction leading to Gush Katif. That building was a
snipers’ nest and launching-ground for repeated attacks on Israeli vehicles.
On May 2, 2004, Fatah terrorists exited it to stop a car driven by pregnant
mother Tali Hatuel and her four young daughters. All were executed, one by
one, at point-blank range; even the homicide of the eight-month fetus was
“verified” by the killers.

This is not to suggest that the court is directly liable in the Hatuels’
slaying, in last week’s Shuafat shooting, or for similar atrocities that
took place in between. Those who bear the direct guilt, of course, are the
terrorists and those who dispatch, incite and tolerate them. But the Supreme
Court’s decisions were contributing factors in calamities that the defense
establishment had foreseen.

This is not an exercise in Monday-morning quarterbacking, but a question of
principle: To what degree should the judicial branch, which has no direct
security expertise, override the security judgments of the executive branch?
By the same token, it must be asked whether the justices are right to regard
themselves as capable of ruling on where exactly to position every stretch
of the security barrier regardless of the topography, and whether they are
receiving the necessary expert input on these life-and-death decisions.

Plainly, nonsecurity considerations, such as the impact on Palestinians’
mobility, need to be taken into account. Plainly, too, however, the IDF
makes clear that it does seek to balance security needs with the need to
avoid unnecessary hardship to innocent Palestinians.

No one has a monopoly over the best judgment in such life-and-death
decisions. But the genius of democracy is seen not only when it grants the
judiciary the power to override the executive branch. It is also seen when
the judiciary sees fit to restrain itself, and chooses to act not as an
executor, but as the arbiter of questions of law.

The Shuafat attack and others are an indication that while there is a danger
that the IDF might err on the side of Palestinian inconvenience, the Supreme
Court might err on the side of risking Israeli lives.

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