Opponents of judicial activism scored a significant win this week, when the judges Baron, Mintz and Stein ruled that decisions regarding security exports- that is, arms sales- based as they are on considerations of national security and diplomacy, fall beyond the jurisdiction of the High Court.
True, this victory loses some of its luster when one realizes that even before this decision, the High Court has almost always willingly stepped aside and recused itself when the sacred values of security and diplomacy were invoked in order to defend arms sales. Those who criticize the court by claiming that it always weighs liberal values like human rights much more seriously than nationalistic values will be glad to know that as far as this area is concerned, that has certainly not been the case. Not when asked to rule on freedom of information regarding weapons sales to Rwanda during the genocide in the 90s, not when asked to stop arms sales to the Phillippines, a government responsible for the extra-judicial killings of thousands, not when asked to begin a criminal investigation of Israelis who were accomplices to crimes against humanity in Guatemala, nor in countless other cases.
The High Court not only willingly recuses itself, but also silences itself, accepting the consistent demand of the Ministry of Defense that all of its decisions on this topic, and sometimes the very discussion of the case itself, remain censored and hidden from the public. Even the public’s rights to transparency, to knowledge about its own government’s policies and about the crimes that we support via our weapons, have never outweighed the values of security and diplomacy. For this reason, all of our knowledge of the very few and exceptional cases in which the high court did intervene, comes only after the fact and without any certainty. It may be that Eitay Mack’s relentless petitioning of the court led to the cessation of Israel’s arms sales to Myanmar “only” a few months after the latter began a genocide against its Rohingya Muslim minority. It may be that they also succeeded in stopping Israel’s export of lethal weapons to South Sudan while it committed ethnic cleansing during its civil war. And possibly, they may even have caused the Jewish state to stop allowing the sale of Israeli guns to a Neo-Nazi militia in the Ukraine.
But even if the High Court has rarely displayed its much criticized activism on this topic over the years, this week’s decision is still a significant fundamental victory. Those who would celebrate this victory would be wise to appreciate- after every victory, there comes a test.
Which test? A test of one of the basic claims of those who argue against judicial activism, namely, that when the court over-extends its reach, it robs officials democratically elected and empowered by the people of their power and authority to make decisions on behalf of their electorate. One counterclaim to this argument is that the court intervenes when it is necessary to fill the void of government neglect and inaction.
So, now that the High Court has decided that this topic is out of its jurisdiction, here is the test. Will the government now fulfill its obligations to act, creating long overdue and necessary legislation, in line with other Western countries, to prevent arms sales to governments engaged in crimes against humanity? Or will it continue to shirk its responsibility, allowing arms sellers to profit, while Israelis are made, against their will, into partners in these crimes?
Along with this test, another test has presented itself, in the wake of another significant victory.
The victory of the new “change government” has brought parties to power that have been in the opposition for more than a decade. There, they enjoyed the “easy life”, morally speaking. It is easy and convenient to submit laws that answer to the highest moral values when you know that the government will reject them. The true test comes now, after victory. Do the moral commitments of these parties dissipate when they come in contact with real political power?
The current coalition includes a significant number of members who have, in the past, submitted, signed onto or supported legislation to introduce ethical limitations on weapons exports. After their victory, their moral commitments and authenticity are now put to the test. And is our responsibility, as the public that empowers them, to ensure that judicial self-limitation allows for legislative responsibility, rather than continued inaction and negligence.