High Court rules against fence

[sharonbn]

The High Court of justice instructed the government Thursday morning to reroute the West Bank security fence near the settlement of Alfei Menashe, in effect calling for a dismantlement of the fence already built in the area.

However, the Court also ruled that a previous decision on the fence by the International Court of Justice is non-binding.

The decision followed a petition by five Palestinian villages and could have significant implications for future cases. The Palestinian villagers asked for the fence to be dismantled on the grounds that it isolates residents and undermines their rights.

The extended nine-judge panel made the decision unanimously. The Court said the decision was based on the harm done to Palestinian villages and not on the ICJ ruling on the matter.

http://www.ynetnews.com/articles/0,7340,L-3142519,00.html

[Mediocrates]

Wouldn't it make more sense for whatever authority is responsible for the fence to simply disband and hand over that authority to the court itself? Procedurally it's a huge waste of time and money to erect something and then hand over the final decision of where it should be to someone else. Perhaps what Israel needs is a special court as an adjunct to the Supreme Court. This adjunct court would hear only the claims of Palestinians in the West Bank. Based on those claims it would adjudicate the path of the fence and the appropriate compensation for the Palestinians accordingly. In other words make the border of Israel strictly determined not by the policies of either state but by the actual claims of individuals affected by it.

[sharonbn]

damn... of all the people here you have to be the one answering my posts??
very well.

I have to say this "suggestion" of yours sinks to an all time stupidity. You seem to show utter ignorance for the function of supreme court and judicial system in a democratic state.

One of t-h-e main functions of the supreme court in democracies, incl' the USA and Israel, is to protect private citizens when their rights are violated and abused by the gov't.

When the gov't denies citizenship from eligible persons, based on arbitrary decisions (it happened in real life) - the persons file a petition in the supreme court.
It does not mean that the judges should replace the clerks in the ministry of internal affairs.

When the police makes an unlawful arrest or detains a person in prison for long period of times (it happened.. guess when? with anti-pullout protestors) - the persons file a petition in the supreme court.
It does not mean that the judges should replace the police officers

Whenever civil and human rights are abused by the authorities - the only way to force the authorities to amend their actions is by petitioning the supreme court. The anti-pullout protestors did just that and their rights were indeed protected.

[sharonbn]

I suggest, Medio, that you remember what I've said when police officers come knocking on your door at 3 AM to arrest your son because he participated in some rally in college and some pencil neck in the FBI thought he was a danger to society.

[Mediocrates]

One of t-h-e main functions of the supreme court in democracies, incl' the USA and Israel, is to protect private citizens when their rights are violated and abused by the gov't.

Under the guidelines established by the Marshall court the prime function of the Supreme Court is to establish the legitimacy of legislation, laws or prior or lower court decisions in the context of the Constitution. It is the embodiment of the Judicial Act of 1798. Maybe where you live it's something like a big final arbiter of civil rights but that is not actually and not legally what the SC stands for, here. There are instances, quite a few where the Court will hear arguments about whether procedural escalations in criminal trials were upheld. And these hearings are in the context of what is and what is not Constitutional. So for example was a defendants right to adequate defence under the 4th and 5th ammendments upheld by the actual specifics of a case or the procedures that ground it? Was a defendents right to a fair and speedy trial maintained? Was the right against cruel and unusal punishment upheld or can it be upheld in light of capital sentencing? Those are the issues that are decided. Not whether you or I are in fact guilty.


When the gov't denies citizenship from eligible persons, based on arbitrary decisions (it happened in real life) - the persons file a petition in the supreme court.

Yes that is why we have a combination of Constitutional ammendments and legal precident. It is also why such precident changes over time such as when Plessy v Fergusson was 'overturned' by Brown v. Board of Ed (Topeka).

It does not mean that the judges should replace the clerks in the ministry of internal affairs.

Courts that are established as courts of compensation have about a 250 year history in the western world. Every country in the west at least has the capability to mount a court of compensation. Class action suits against the government or against private parties, takings under emminent domain, regulatory whistleblower laws are only three such examples. Enforcement of treaties both inside and outside the borders of a country is another, albeit rarely used one.

When the police makes an unlawful arrest or detains a person in prison for long period of times (it happened.. guess when? with anti-pullout protestors) - the persons file a petition in the supreme court.

Procedurally in the US it would depend on the specifics. Normally the accused would submit a writ of habeus corpus. In the US, legally there are few reasons why someone can be held w/o charge although those exclusions seem to be very popular right now.

It does not mean that the judges should replace the police officers

No it means that courts are given the authority to second guess the police and ammend, correct, repeal, punish or compensate one, for their actions.

Whenever civil and human rights are abused by the authorities - the only way to force the authorities to amend their actions is by petitioning the supreme court.

Only in a general sense. It depends on what your definition of abridgement is. Persons have rights, real or implied and those rights can be abridged by private parties or by governments either through enforcement power or legislation or regulation. My 'right' to dump sewage in the ocean may be circumscribed by environmental regulations. Your 'right' to privacy is not absolutely protected under the police powers to tap your phone. Moreover I may have a 'right' to peace and quiet from my neighbor's boom box and the remedy for that is Tort law and has nothing at all to do with Constitutional issues. We have a Bill of Rights, while you do not. So the idea that the Supreme Court is the court of last refuge for the individual against the state is fairly abstract.

[Mediocrates]

I suggest, Medio, that you remember what I've said when police officers come knocking on your door at 3 AM to arrest your son because he participated in some rally in college and some pencil neck in the FBI thought he was a danger to society.


I sure I have bigger overt problems to worry about. Nacht und Nebel is pretty far down the list.

[Mediocrates]

So given this, why not mount a court of compensation who's goal is to establish the legitimacy of all Palestinian claims once and for all? Use those guidelines to contruct a legal entity called the Fence Authority or something like that and proceed from the point that claims are either compensated or they are upheld directly. Claimants can get the fence moved or they can be paid.

[sharonbn]

http://en.wikipedia.org/wiki/Israeli_Supreme_Court

Supreme Court of Israel

Powers
The Supreme Court is an appellate court, as well as the High Court of Justice.

High Court of Justice
As the High Court of Justice (Hebrew: Beit Mishpat Gavoha Le'Zedek also known by its initials as Bagatz), the Supreme Court rules as a court of first instance, primarily in matters regarding the legality of decisions of State authorities: Government decisions, those of local authorities and other bodies and persons performing public functions under the law, and direct attacks of the constitutionality of laws enacted by the Knesset. It has a broad discretionary power to rule on matters in which it considers it necessary to grant relief in the interests of justice, and which are not within the jurisdiction of another court or tribunal. The High Court of Justice grants relief through orders such as injunction, mandamus and Habeas Corpus, as well as through declaratory judgements.

http://elyon1.court.gov.il/eng/chief/index.html

The State of Israel, The Judicial Authority.

The function of the judicial branch is to decide disputes
between individuals and between individuals and the
government.

The role of the Supreme Court is to
determine law for the public via decisions made in disputes.
In doing so, the Supreme Court defends the social framework;
it balances between the needs of the public and the individual
and it represents a safeguard for individual freedom.

[Mediocrates]

http://en.wikipedia.org/wiki/Israeli_Supreme_Court

Supreme Court of Israel

Powers
The Supreme Court is an appellate court, as well as the High Court of Justice.

High Court of Justice
As the High Court of Justice (Hebrew: Beit Mishpat Gavoha Le'Zedek also known by its initials as Bagatz), the Supreme Court rules as a court of first instance, primarily in matters regarding the legality of decisions of State authorities: Government decisions, those of local authorities and other bodies and persons performing public functions under the law, and direct attacks of the constitutionality of laws enacted by the Knesset.

That's pretty standard stuff. The last phrase is incredibly openended and subject to interpretation though. Was that even written by a lawyer?

It has a broad discretionary power to rule on matters in which it considers it necessary to grant relief in the interests of justice, and which are not within the jurisdiction of another court or tribunal.

A breathtakingly vague statement. A court with nonenumerated powers and with no prior definition or limitation of scope of that power.

The High Court of Justice grants relief through orders such as injunction, mandamus and Habeas Corpus, as well as through declaratory judgements.

http://elyon1.court.gov.il/eng/chief/index.html

The State of Israel, The Judicial Authority.

The function of the judicial branch is to decide disputes
between individuals and between individuals and the
government.

According to the link provided your SC serves in a dual function and that function is a combination of Constiutional court and Court of Appeals at the state level. In New York state for example the state supreme court is not the highest court. The Court of Appeals is. However no court except at the local or perhaps state level can decide if it can itself retry a case. That would violate the appelate process. Courts don't try cases, they hear them.

The role of the Supreme Court is to
determine law for the public via decisions made in disputes.
In doing so, the Supreme Court defends the social framework;
it balances between the needs of the public and the individual
and it represents a safeguard for individual freedom.

Which is more or less an implied statement of the duty of all courts. How it implements that is the key.


None the less none of this contradicts what I've already proposed. Since the court itself maintains, in the link you provided, the proviso to make Law, there is no inherent obstacle in the SC to make law by a court of compensation. In other words there is no necessary limitation for the court to place upon itself the distinction between the Law of the Fence and the implementation of the Law of the Fence. It would seem to be infinitely more feasible for the SC to ennact policy from the bench this way and avoid all of the problems, the public would suffer otherwise. Anything else would be the cart before the horse.

[sharonbn]

In other words make the border of Israel strictly determined not by the policies of either state but by the actual claims of individuals affected by it.
Then perhaps we can abolish the entire Knesset and gov't and make the court write up the rules and decide on policy?
We can also abolish military high command and let the court decide on the route of the fence?

The court has only the authority to decide on legality of the route of the fence. It has no authority or knowledge to decide what is the route that will maximize security.

why not mount a court of compensation who's goal is to establish the legitimacy of all Palestinian claims once and for all?
Why set up a separate court for this?
This is the role of supreme court of Israel.

[Mediocrates]

It's mostly procedural. since those claims could go on for years it would make more sense to appoint a special court to handle them and nothing but them.

As far as abolishing all those other authorities, that is in fact the right you reserve for yourself when your own court has the power to literally make law from the bench. For example in the US the SC has thrown out 3300 different pieces of legislation passed by Congress, since 2001. In an odd twist of rhetorical hoop-jumping though you never hear that when you hear the right wing scream about 'judicial activism'. But the effect is the same or at least it should be.

And as far as eliminating the authority of the IDF, you probably have a law that says the milititary is ultimately under civilian control like most modern states except Turkey. So the final authority would in fact reside there. If it wanted to the SC could abolish national service or make it more encompassing if it wanted to.

As far as the SC deciding on the route of the Fence that's exactly what I'm saying. Or at least let the outcome of all those claims determine that. the court is already deciding those issues of security on it's own, piecemeal. All I'm suggesting is to formalize it and take it out of the political realm as much as you can given that all courts are political in some degree.

[sharonbn]

It's mostly procedural. since those claims could go on for years it would make more sense to appoint a special court to handle them and nothing but them.
that's it? we're debating a procedural sugestion to speed up the judicial process?
this is an utter waste of time.

And as far as eliminating the authority of the IDF, you probably have a law that says the milititary is ultimately under civilian control like most modern states except Turkey. So the final authority would in fact reside there. If it wanted to the SC could abolish national service or make it more encompassing if it wanted to.
The military is under the gov't, not the court. It does not take orders from judges.

As far as the SC deciding on the route of the Fence that's exactly what I'm saying. Or at least let the outcome of all those claims determine that. the court is already deciding those issues of security on it's own, piecemeal. All I'm suggesting is to formalize it and take it out of the political realm as much as you can given that all courts are political in some degree.
The court can only rule if a certain ***existing*** route should be dismantled or not.
Petitions of the court do not include an alternative, they only challenge existing fence.
So the court cannot decide an alternative route based on "all those claims".
the court cannot and should not decide on an alternative route because it has not the exptertise to make that decision.

[Mediocrates]

The military is under the gov't, not the court. It does not take orders from judges.

Can or cannot the court decide on issues of national importance to the military. Which is it?

The court can only rule if a certain ***existing*** route should be dismantled or not.

Interesting, all it can do is direct the fence to be knocked down in one place or another. So it's entirely negative in its effect. Is there anything from the court determining that the Fence in its entirety be scrapped?


anyway I'm done with this - you scream that I don't say anything and when I do you tell me it's a waste of your time.

[sharonbn]

Can or cannot the court decide on issues of national importance to the military. Which is it?
The court indeed decides on issues of national importance to the military.
But similar to the issue of the fence: the court can only tell the army what NOT to do. It does not tell the army what to do. That is left to the gov't.

The court MO is responsive and non initiative. even under judicial activism, the court can only say its piece when a case is laid before it.

Interesting, all it can do is direct the fence to be knocked down in one place or another. So it's entirely negative in its effect.
What do you mean "negative". When it comes to dealing with the gov't and authorities, the job of the court is to put limitations on the power that comes with authority. god knows the gov't does not put restrictions on its actions by itself.

The court's role is positive in the meaning that it protects civil and human rights of private citizens.

Is there anything from the court determining that the Fence in its entirety be scrapped?
In a way, the court did say that the fence is legal and justified, In its new ruling, the Israeli high court declared that the ruling of the int'l court in 2003 is not binding to Israel. The court asserted the justification for the fence for reasons of Israel's security.

[Mediocrates]

But at the end of the day we all understand that the fence is and will be a political border. Therefore the SC is in fact determining national policy on its own. Oh it may shroud that fact under the aegis of upholding the property rights of Palestinians but it's to be a border all the same.

[MGB8]

The sad thing, of course is the FALSE NEGATIVE SPIN that you gave the article. The Court again UPHELD THE FENCE, UPHELD THE RIGHT TO BUILD BEYOND THE GREEN LINE, said that the IJC opinion was COMPLETELY ILLEGITIMATE, but asked that the route be altered to lessen hardships... this is, of course, what they said before.

You sure you are an Israeli, Sharon, seem more like an ISM mole to me...

The High Court of justice instructed the government Thursday morning to reroute the West Bank security fence near the settlement of Alfei Menashe, in effect calling for a dismantlement of the fence already built in the area.

However, the Court also ruled that a previous decision on the fence by the International Court of Justice is non-binding.

The decision followed a petition by five Palestinian villages and could have significant implications for future cases. The Palestinian villagers asked for the fence to be dismantled on the grounds that it isolates residents and undermines their rights.

The extended nine-judge panel made the decision unanimously. The Court said the decision was based on the harm done to Palestinian villages and not on the ICJ ruling on the matter.

http://www.ynetnews.com/articles/0,7340,L-3142519,00.html

[Mediocrates]

Yet it also determined that this section of the Fence which is a mere 2.5 miles from the Green line had no legitimacy in protecting one Jewish village surrounded by several Arab towns either. In short, it's expulsion, read policy, by other means.

[MGB8]

That certainly is a legitimate criticism... in terms of the SC overstepping its bounds... I would agree - they should be able to decide on principle - yes/no can the fence be built across the green line, and yes/no what level of "inconvenience" vs. security benefit must be shown to invalidate any one part of the fence (ie. is the standard merely "outweight", "substantially outweight" "overwhelm" - and then let the government make the call).

[Mediocrates]

But the very idea that one can relocate Jews and/or compensate them but the only, literally only legitimate action one can suggest in relation to the Palestinians is to clear tracts of land of Jews, for them is on its face absurd. I'm undertand entirely that one place near the Green Line was 'bulged out' to encompass, probably as an unintended consequence, an Arab village that sits between the Green Line and a Jewish community. That's in essence the only issue here, the only one. So instead of relocating that village, something the IDF is good at, rather than just buying them out, the response is to tear down the only section of the Fence protecting Jews from their 'neighbors'. In fact the effect of this is to expel Jews. As courts go and as courts making law go, this is an awful example. It's no more than political grandstanding from a court that believes it is above the government. As we heard previously, the court doesn't believe it should meddle in the machinations, the dirty details of governance, but that is precisely what it is doing right here.

[sharonbn]

The Israelis are colonialists in the occupied territories, The Pals are indeginous. That's the difference.
and please don't feed me the c**p about me being a colonialist in Tel Aviv and when do I leave bla bla bla its so pre pullout

[minusthejihad]

The Israelis are colonialists in the occupied territories, The Pals are indeginous.

Are you fo real? You are beginning to sound more and more like michael, maybe he hyjacked your account.

[MGB8]

Sorry Sharon, if Israelies are colonialists in Gaza, then they are colonialists in Israel proper, too. As are any peoples who moved into lands that weren't theres - the Anglos... the Franks... the Arabs... its just a matter of how long they've been there.

Gaza was NEVER a colony of Israel, nor is the WB. It is land that has been fought over and has cross claims on it. Nothing more.


So pack up and get out of Israel proper, Sharon, because according to your logic you are nothing more than a squater. Oh, and the "its so pre-pullout" isn't exactly an argument - its more like a pathetic whine.

[minusthejihad]

If I was rich, I'd buy a football team and name them, The Colonialists or The Settlers. Their are too many negative conotations associated with these terms and they deserve to be respected. It can't be as bad as the Washington Redskins by any strech of the imagination.

[KSO]

If I was rich, I'd buy a football team and name them, The Colonialists or The Settlers. Their are too many negative conotations associated with these terms and they deserve to be respected. It can't be as bad as the Washington Redskins by any strech of the imagination.

And I'll donate money for greenpeace to shot an ad in the PA where a settler looks at gaza being polluted and sheds a single tear.

[redcake]

The Israelis are colonialists in the occupied territories, The Pals are indeginous. That's the difference.
and please don't feed me the c**p about me being a colonialist in Tel Aviv and when do I leave bla bla bla its so pre pullout

Just so you know:

A) the world view is that any Ashkenazic living on any land in the Middle East is a colonialist.

B) arabs are about as indigenous to gaza, which was egypt, as they are to Israel proper, and if you don't believe us, maybe you should believe Hamas who have stated this very clearly. They are not satisfied with the green line borders either.

[sharonbn]

A) the world view is that any Ashkenazic living on any land in the Middle East is a colonialist.
I do not think its true. Israel's right to exist was nemer disputed by the world leaders.

B) arabs are about as indigenous to gaza, which was egypt, as they are to Israel proper, and if you don't believe us, maybe you should believe Hamas who have stated this very clearly. They are not satisfied with the green line borders either.
Gaza was Egypt? Egypt occupied Gaza in 1948. Before that Gaza belonged to the province of Israel, whch was under British and Turkish rule. The indegious population, who lived in Gaza for centuries, is Arabic.

[redcake]

Hey man, you're the one trying to use the green line to decide who gets called "indigeneous" and to where it is they're indigeneous.

[Mediocrates]

I feel I am an indigenous American

[sharonbn]

Hey man, you're the one trying to use the green line to decide who gets called "indigeneous" and to where it is they're indigeneous.
No I am not. The Arabs throughout Israel are indigeneous, while all the Jews, with the exception of the old communites in Jerusalem, Hebron, Tiberias etc are new immigrants. This is a fact of history.

The difference between Tel Aviv and the Gaza colonies is that the residents of Tel Aviv were indeed immigrants. Gaza settlers are NOT immigrants. Gasa settlements are a result of military conquest. That's the difference.

[Mediocrates]

Texas is the result of military conquest.

[MGB8]

So is W. Jerusalem, Jaffa, parts of the Galilee and most land between Tel Aviv and Jerusalem....

So is the England, the UK, France, Germany, and most of the Middle East.

All won/ruled by force of war.

[sharonbn]

right. just because Mexico does not claim Texas, just because Mexicans did not rebel against American occupation - that does not justify American occupation and annexation of Texas.
just because tibetans do not rebel against Chienese occupation of Tibet - that does not justify the occupation and Chienese colonies there.

[MGB8]

Sharonbn,

You are certified.

Again, how can you distinguish between lands outside the mandate, conquered in war, and lands beyond the green line, conquered in war? What about the fact that the Arabs conquered Israel in war?

In Texas, where a part of the population wanted to secede from Mexico and welcomed US involvement and later annexation - what do you make of that?

Should the North not have invaded the South in the Civil War?

How do you deter an agressive nation from attacking without the risk that they will LOSE TERRITORY because they are starting an aggressive war?

[Mediocrates]

right. just because Mexico does not claim Texas, just because Mexicans did not rebel against American occupation - that does not justify American occupation and annexation of Texas.
just because tibetans do not rebel against Chienese occupation of Tibet - that does not justify the occupation and Chienese colonies there.


Mexico was owned by Spain. Americans were asked by Spain to begin to settle there. When Mexico won its independence from Spain, the new Mexican government continued to ask Americans to settle there. By the 1830's however it became problematic as Mexico had abolished slavery and American Texians as there were called installed slavery on their own lands. By the 1830's this reached a head and the American Texians decided to make a stand. They were not in fact "Americans" put there by the American government.