Analysis from Israel
Had the High Court not ruined its own credibility, migrant ruling might get the respect it merits.
After the High Court of Justice overturned a law last week that allowed illegal migrants to be held in detention for up to three years, The Jerusalem Post‘s editorial aptly summarized Israelis’ reactions as follows: “For the Left, the ruling was a vindication of their adherence to the universality of human rights,” while “For the Right … the decision was yet another indication that the High Court was dominated by a weak-wrist liberal consensus.”

It’s a sad commentary on the depths to which the court has sunk itself that neither side seriously considered what ought to be the default explanation of a High Court verdict: that it was rooted in relevant legislation duly enacted by the Knesset. Instead, they simply assumed the court was expressing a value judgment, and thereby taking sides in the heated debate over what Israel’s policy toward illegal migrants should be.

As it happens, I think the ruling was virtually mandated by the Basic Law: Human Dignity and Freedom, a quasi-constitutional law that subsequent legislation is supposed to comply with (or at least, so the court decided in 1995, and the Knesset never challenged that decision). According to the Basic Law, “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise,” except “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”

The court concluded that even given the state’s justifiable interest in getting illegal migrants off the streets, throwing them in jail for three years is a disproportionate violation of the right to liberty guaranteed by the Basic Law, one too massive to be justified by the presumed benefit. I find it hard to disagree. For if a right to liberty means anything at all, it ought to mean you can’t be thrown in jail for three years when you haven’t committed any crime.

Granted, illegal entry into the country usually is a crime, albeit a minor one generally punishable by no more than three months’ imprisonment prior to being deported. But under international conventions Israel has ratified, it isn’t a crime at all if the illegal entrant is a bona fide refugee, which most of the migrants in question claim to be. That obviously doesn’t mean they actually are, and indeed, documents from other court cases clearly show that some aren’t. Yet since the state has never examined most of these migrants’ asylum requests, as required by those same international conventions, it’s impossible to know which are genuine refugees and which are just labor migrants.

Moreover, most of those jailed under the law come from Eritrea and Sudan – two countries so repressive that Israel, like other Western countries, long ago decided their nationals can’t be forcibly repatriated. Thus even if those nationals are just labor migrants, they still, through no fault of their own, can’t be deported, which is why they end up being jailed instead. But again, if a right to liberty means anything, it ought to mean you can’t be incarcerated for three years just for the misfortune of being born in a country to which you can’t be deported.  

Several justices stressed that their ruling in no way precludes less draconian steps to mitigate the problems these migrants pose to Israeli society. But they rightly deemed three years in prison excessive.

So how did a commendably narrow and defensible legal decision come to be viewed by both sides as if the justices were simply imposing their own value judgments on a hotly disputed policy question, that of how Israel should deal with illegal migrants? Partly, it’s because some couldn’t resist inserting themselves into this debate. For instance, Justice Isaac Amit wrote in his concurring opinion that once these migrants “reached our borders, wounded in body and soul, we should have welcomed them … bound up their wounds of body and soul and treated them with generosity and compassion with respect to work, welfare, health and education.”

That, to be blunt, is none of the court’s business. The migrant problem is a classic case of competing values: compassion for the stranger versus concern over their impact on both Israel’s own poor and its Jewish character. But decisions about how to balance competing values and competing policy considerations are properly the province of the country’s elected representatives, not an unelected court. As an individual, Amit is entitled to have an opinion, but as a justice, his job is limited to determining whether any solution these representatives devise comports with the law.

Still, the main ruling stuck pretty closely to legitimate legal analysis, so it’s hard to see the decision as a whole as a blatant intrusion into policy. It certainly didn’t warrant its opponents’ accusations of “judicial activism,” “steamrolling” the Knesset and dealing “an almost deadly blow to Israeli democracy.”

Yet the court’s own record made those accusations a reasonable conclusion to leap to for anyone who hadn’t actually read the 120-page verdict, which most people haven’t and won’t. Because time and again, the justices have imposed their own value judgments on controversial issues, in blatant defiance of what the law actually says (for examples, see here, here, here and here).

In so doing, the court has destroyed its own credibility. Like the boy who cried wolf, it has substituted its own policy preferences for the law so often that when it finally does what it’s supposed to do – base its rulings on actual law – nobody believes it anymore. Everyone simply assumes it has handed down yet another value judgment masquerading as jurisprudence.

Even worse, however, is that by undermining its credibility in this fashion, it has undermined the key function courts are supposed to play in a democratic society: the ability to resolve disputes peacefully in a way broadly acceptable to most players. Instead, it has turned itself into just another partisan player, whose decisions merely add more fuel to any ideological controversy it rules on. And it has thereby done inestimable damage not only to itself, but to the country as a whole. 

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The International Criminal Court’s fundamental flaw

In my last column, I noted in passing that the International Criminal Court’s blatant anti-Israel bias is merely a symptom of a more fundamental flaw. That isn’t self-evident; court supporters would doubtless argue, just as many people do about the United Nations, that while the court’s anti-Israel bias is regrettable, it’s an isolated flaw that doesn’t outweigh the benefit of ending impunity for atrocities.

What convinced me both that the ICC is unredeemable and that the impunity problem has a better solution was actually a book by one of the court’s ardent supporters—Philippe Sands, a law professor and international lawyer who has worked on ICC cases. In East West Street, Sands traces the development of two key concepts in international law—crimes against humanity and genocide—to their respective culminations in the Nuremberg Trials of 1945 and the Genocide Convention of 1948. But for me, the real eye-opener was his description of the international wrangling that preceded the Nuremberg Trials.

Nuremberg is sometimes derided as victor’s justice. And in one sense, it obviously was: Four of the victors of World War II—America, Britain, Russia and France—decided to put senior officials of their vanquished foe on trial. But what was striking about Nuremberg was the massive degree of international concord required to hold those trials. Lawyers representing several very different legal systems and several very different systems of government nevertheless had to agree on every word and even every comma in the indictments. And since those lawyers were acting on their governments’ behalf, political approval by all four governments was also needed.

In contrast, the ICC needs no international buy-in at all to pursue a case. Granted, its prosecutors and judges come from many different countries, but they represent neither their home governments nor their home legal systems. Politically, they represent nobody but themselves. Legally, they represent one particular interpretation of international law—an interpretation popular with academics and “human rights” organizations, but less so with national governments.

At first glance, both of the above may sound like pluses. Prosecutorial and judicial independence are generally good things, whereas many governments and legal systems leave much to be desired when it comes to protecting human rights.

But the ICC’s version of prosecutorial and judicial independence is very different from the version found in most democracies because the latter is not completely unconstrained. In democracies, prosecutors and judges are constrained first of all by democratically enacted legislation, and usually by democratically enacted constitutions as well. They’re also constrained by the fact that they, too, are citizens of their country, and therefore share concerns important to most of their countrymen—for instance, national self-defense—but unimportant to judges and prosecutors from other countries (which those at the ICC almost always will be).

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