The Supreme Court ruling that left intact the order to demolish Salim Shawamreh’s house in Anata is based on several legal grounds, of which the most central is the argument of “lack of good faith”. The rationale underlying that argument is that a person seeking recourse from the court must enter the courtroom in good faith – that is, with no hidden intentions and without having committed acts intended to put in place conclusive facts.
Salim Shawamreh has rebuilt his house four times since it was first demolished, and according to the court, there is lack of good faith in the very fact of rebuilding since he created facts on the ground before approaching the court. It’s reasonable to assume that had Salim Shawamreh appealed before rebuilding, the court would not have claimed lack of good faith. It would probably have dismissed Shawamreh’s appeal on other grounds. Indeed, each time he intended to start building, he made a point of returning to the Civil Administration and reapplying for a building permit, but each application was turned down on different grounds. However, since he built despite the rejections, it was easier for the court to dismiss his appeal on the ground of lack of good faith rather than to address his claims of discrimination.
The court’s ground is an interesting one because of what it implies. Under that doctrine, a person who builds a home for his family, time after time, and refuses to submit to the iniquities of the Occupation, acts with lack of good faith, yet the Civil Administration – which time after time rejects applications for building permits, is the embodiment of good faith. The Supreme Court justices who constantly declare they are “part of the people” apparently believe that the discretion exercised by the Civil Administration’s officials is in good faith, as pure as the driven snow. For their part, the procedures applied by the Civil Administration are totally legal, even if it is a matter of military law entrusted to the hands of officials who were raised in settlements and parachuted into key positions in the civil administration by right-wing political factors. In the opinion of Israeli judges, as long as the systematic oppression of the Palestinian population is anchored in the appropriate procedures, it is legal and valid. There is nothing new here, because we have already seen the same beliefs in discriminatory states that used the same methods to oppress entire peoples. In Israel, though, there has been a revolutionary addition that is cynical beyond compare; it assumes that oppression is “legal” if it is conducted in “good faith”. That assumption is the twin sister of the statement that the IDF is the “most moral army in the world”, which kills in Gaza out of morality and demolishes homes in the Occupied Territories buoyed up by good faith! The legal system assumes a priori that the security system’s claim that the applications which Salim Shawamreh filed were examined by “the supreme committee” and the “appeals committee” and a whole assortment of subcommittees that they themselves staff, were all handled in “good faith”. The Civil Administration officials are capable of issuing demolition orders for Palestinian homes with one hand, and with the other to help construct illegal settlements. In the Supreme Court judges’ opinion, however, everything is legal and enshrined in good faith. Only Salim Shawamreh and people like him lack good faith because they insist on building homes for their family. Jeremiah the Prophet said “Woe to him who builds his house by unrighteousness” and it’s not hard to guess what a contemporary Jeremiah would say about a state that creates legal procedures in order to thwart Palestinians, and who appear in the courts, rolling their eyes heavenwards, claiming they stand in the courtroom with clean hands.
There is no doubt that the courts constitute the last line of the struggle to keep alive Israeli democracy. Without the courts, the state would have long ago deteriorated into a murky and oppressive regime. But there can also be no doubt that the court authorises countless wrongdoings, and grants legitimacy to countless acts of oppression – as long as they are performed “lawfully”. No judge can allow himself or herself to cast doubt on the Civil Administration’s policies, because the iron rule is that the court does not intervene in matters of security. In rulings concerning planning and building in the Occupied Territories we can seek fruitlessly for even a tiny hint that something in the entire Civil Administration system is unreasonable, unfair, and certainly lacking in good faith. Its officials can prevent a man from building a house on his own land for a thousand ludicrous reasons, and all of them will receive the seal of approval as long as a suitable clause can be found for them in the book of laws or in existing procedures. And if we’re talking about good faith, who has a purer heart – someone who just wants to build a home for his family, or someone who makes cynical use of the language of the law to destroy homes – and perhaps at the same opportunity, to destroy an entire family? And what does this teach us about the good faith of the judges who are aware of the direction the state is leading, yet remain silent and help prepare the ground?
Legal ethics in Israel are brimming over with good intentions, but we must repeat that phrase which so aptly describes Israel’s legal system – the road to hell is paved with good intentions. Israeli judges, most of whom are enlightened proponents of human dignity and liberty, announced in a rational, professional ruling that the law alone guides their decisions, and they do not diverge from it to the right or the left. As a result, Aharon Barak, former President of the Supreme Court, could validate demolition orders but almost in the same breath state in a lecture that he “would be happy if the demolition orders were withdrawn from the book of laws of the State of Israel”. Indeed the judges of Israel walk only the straight and narrow, without diverging to left or right, but what can one do when in Israeli reality the straight path leads only to the right, and the judges have become servants of right-wing politics. They would do well to recall events in recent years in South American countries – with the judges who served under military dictatorships, or the Spanish justices who presided over the courts throughout the Franco regime and who handed down judgments according to the books of laws legislated by various officers and dictators.
The principle of good faith is an admirable one, and happy is the state that operates according to it; however the interpretation given it is narrow and restricted. It would be better if the state looked deep into the procedures generated under the hand of the Civil Administration. It will transpire that everything is legal, proper and documented, but one certainly would not find good faith, let alone human dignity and liberty.