The Israeli judiciary could torpedo Trump’s Gaza resettlement plan

In a legal environment where such groundless judicial intervention in core national security decisions is routine, a court derailing Trump’s resettlement plan would be just another Tuesday.

Indeed, it seems that Gali Baharav-Miara, Israel’s attorney general (a position largely regarded as a proxy of the country’s supreme court) has demanded that she be “consulted” by the Israeli government as to the “legality” of implementing Trump’s plan.

In December 1992, the Israeli government under Prime Minister Yitzhak Rabin decided to deport 415 members of a relatively new Palestinian terrorist organization called Hamas. As the buses made their way to the Lebanese border in the dead of night, then-Israeli Supreme Court Justice Aharon Barak issued an injunction against the deportations, which stopped the buses in their tracks.

Though the court approved the measure the next day, the needed element of secrecy was lost. Lebanon had the chance to prepare, and the deportation became a media fiasco. Most of the deportees eventually returned, including many future arch-terrorists, including Hamas senior leader Ismail Haniyeh.

This is just one example in a long string of judicial interventions that hamper Israel’s national security efforts on flimsy legal grounds. The Israeli Supreme Court, which serves as the unappealable court in all major legal challenges to government action, is universally recognized as among the world’s most activist, routinely interfering in questions of military strategy and defense policy in a manner and scope unparalleled throughout the globe. Any plan to voluntarily resettle Gazan civilians will eventually end up on the court’s chopping block.

Since abolishing any requirement of justiciability, the court has historically reviewed any and all defense-related issues of the highest order, typically by subjecting them to vague and abstract standards (such as “reasonableness”) or the court’s creative and unfounded interpretation and application of international law.

These have included peace negotiations with Palestinians, the 2005 “disengagement” from Gaza, targeted airstrikes against terrorists, the exact route of the separation barrier in the West Bank, the Gaza border, military rules of engagement, the allocation of bomb shelters in Israeli schools and more. Restrictions imposed by the court on Israel’s defence capabilities make victory more elusive, thus perpetuating conflict and prolonging the suffering on all sides.

Previous rulings might provide some indication of how the Supreme Court might respond to Trump’s efforts at relocating willing Gazans to a third country. The court has consistently held that Israel maintains post-occupation “humanitarian” obligations toward the civilian population in Gaza, such as allowing and even freely supplying some amount of electricity and water, or transferring funds for public salaries long after Israel relinquished control of the Gaza Strip and terminated all physical presence there in 2005.

The court has also taken a keen interest in Israel’s immigration policies. In one case, Justice Yitzhak Amit implicitly reasoned that the “voluntary” departure of illegal economic migrants may be tantamount to unlawful coercion if caused by the state’s aggressive incentivisation. This is the same Yitzhak Amit who was recently appointed as the chief justice of the court, albeit in a controversial decision of disputed legality.

Combining these two trends, the court could reason that any voluntary resettlement of civilians in the Gaza Strip amounts to illegitimate forced deportation because it rests on the inhospitable circumstances in Gaza caused by Israeli military action. The court might therefore rule that the overall Trump plan violates Israel’s humanitarian obligations to Gazans or even constitutes de-facto ethnic cleansing.

To frustrate Trump’s plan, the Israeli Supreme Court would not even need to rule against it directly; it could employ a range of tactics it previously used when trying to sink government policies it disfavoured.

The court could require that such a program be enacted in primary legislation (the Israeli political order has still not recovered from when the court did this with the Charedi military draft exemption in 1998). It could issue a temporary injunction blocking the measure long enough to make it moot before ever ruling on the merits or impose insurmountable procedural hurdles to the plan’s implementation, such as an individual vetting process for every person leaving Gaza. Or, the court could demand some unfeasible government concession, such as a guarantee that relocated Gazans will be permitted to re-enter.

If that’s not enough, the civil and military legal corps generally subscribe to the court’s views and are easily capable of handicapping any resettlement plan, as it has done for other policies.

Trump is rapidly implementing his agenda in Washington; however, Jerusalem’s self-selecting solons may still undermine his plans in the Middle East.

Yonatan Green is an Israeli-American attorney who is currently a fellow at the Georgetown University Center for the Constitution.