Siding with the individual, even terrorists

By Lt. Col. (ret.) Meir Indor, ISRAEL HAYOM

Surprise! In the middle of the night, after being asked to revisit the issue, the High Court of Justice was convinced to change its ruling from earlier this week to allow five females relatives of Hamas members into Israel for urgent medical treatment.

A full High Court panel heard the arguments from the defense establishment and ruled that the women were not to be allowed into Israel. They noted that while they sympathized with the women, “the decision on the questions arising from the case before us, which combines considerations of security, morality, and values, is essentially in the hands of the executive branch – the elected government. There were political and security-related reasons for the defense establishment’s decision [not to allow the women into Israel]. This court does not intervene in [government] decisions, mainly because of the type of authority that rests with the executive branch in this matter. The government decision falls squarely within its prerogative, as both the entity responsible for the country’s defense and foreign relations, and as such, has latitude to make decisions, whereas judicial oversight is very limited.”

But now for the twist – sadly, none of what was just described actually took place. It was only a story. The quotes are lifted from real High Court rulings, but come in response to petitions by survivors of terrorism. Almost all the petitions against the release of convicted terrorists have been rejected. The High Court justices suddenly become humble, arguing that the court does not intervene in government decisions on diplomacy and security.

The arguments about the danger to the sick women from Gaza, if they are not treated in Israel, are worthless given the professional assessments that determine that most freed terrorists resume terrorist activity and that releasing them will certainly cause Israelis to be killed. It’s already happened, and shame on us.

Can the justices now say, “Their blood isn’t on our hands?” If the High Court had intervened in the exchange deal for captive soldier Gilad Schalit, it could have prevented the murders of three teenage boys; of Israel Police Chief Superintendent Baruch Mizrachi, 47; and of Malachi Rosenfeld, 27. Seven Israelis have been killed by terrorists freed in that deal, not to mention the terrorism from Gaza that is being masterminded by leader of Hamas in Gaza Yahya Sinwar – a senior operative who was also released in exchange for Schalit. The names of 180 Israelis murdered by the terrorists who were poised to be released in the deal were submitted to the High Court, but did nothing to change its ruling.

So how did this role reversal take place? Why aren’t the victims receiving help?

The fault lies with the underlying concept, not with the justices, some of whom served as combat soldiers and commanders, and include one mother who lost a child to terrorism. The High Court has taken up the banner of protecting the rights of the individual, but what happens when an individual harms the collective? The court lets the government worry about the national collective. When the two interests, individual vs. collective, clash, the court usually comes down on the side of the individual.

A family from Gaza is considered an “individual,” even if it happens to be the family of a high-ranking terrorist. Because it’s hard to classify terrorist operatives as an organizational collective, due to the elusiveness of their leaders, they manage to trick us. They are exploiting our noble values – individual freedom and human life – to attack Israeli democracy.

Will the decision to protect the individual hurt our national security? The high priest of the High Court, former Chief Justice Aharon Barak, said that sometimes a society puts its security at risk to defend the fundamental rights of the individual. That might sound nice, but it’s not realistic in the Middle East.

Under the Mandate, the British established a separate legal system with a set of values appropriate for times of emergency and eliminated Arab terrorism by setting up a network of military courts. In modern-day Israel, however, trials for terrorists are being “civilian-ized.” It’s time to reverse this trend.

Lt. Col. (ret.) Meir Indor in the head of the Almagor Terror Victims Association.