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The Israeli Supreme Court in another battle in the "war on terror"

The Court’s judgment in the case of HCJ 1355/08 Shorfa v Defense Minister (judgment of 28 September 2008) concerning a petition against the Defense Minister’s decision under Regulation 84(2)(b) of the Defense Regulations (State of Emergency) 1945, to issue a confiscation order against a container full of clothes and backpacks that was delivered to a trader in the Gaza Strip from his son in China.

The Court examined the secret material which constituted the basis for the Defense Minister’s decision to confiscate the container. The judgment states that from the material the justices were able to discern that the delivery was for “a charity organization which is part of the Palestinian Islamic jihad terror group, which was outlawed for being an illegal association.” According to the State’s submissions, the delivery of such support parcels is “one of the [terror group’s] ways to aid and support its people and their families”.

The Justices persist, “in this state of affairs, in the presence of overwhelming administrative evidence and considering the discretion granted to the Defense Minister, we did not see a basis to interfere with the decision.” Most appallingly, the Court stated that it was informed by the State Attorney that “the confiscated delivery will be handed over to the Palestinian Authority for the purpose of its distribution.”

The only ground presented by the Court to justify the reasoning of its decision was that pertaining to the secret evidence, which had in this case, unlike in previous ones, attested to a relation between the delivery and a terror organization. The justices, Beinisch, Rivlin and Arbel, equally used this opportunity to confirm the longstanding discretion granted to state officials in the exercise of their authority when matters of state security are at hand. This is a characteristic decision for the Israeli Supreme Court (the complaints body for the occupation regime in the occupied Palestinian territories) who has unquestionably become the face of the occupation through its unrelenting support of the Israeli government’s policies that continue to violate international law under the veil of the Court’s typically laconic, unreasoned decisions.

Not apart from this instance of the Court’s jurisprudential practice is also Israel’s  persisting refusal to recognize its responsibilities as a Belligerent Occupant, both in the West Bank and in the Gaza Strip and adhere to its positive obligations in favour of the occupied population, which depends on it for all of its daily needs and the enjoyment of its most basic human rights. Israel confirms its position in this regard also in the report it recently submitted (25 September 2008) to the UN Human Rights Council’s Universal Periodic Review mechanism, that omits (a practice characteristic of Israel’s reports submitted to UN monitoring human rights bodies) any mention of the occupation regime that Israel upholds in the occupied Palestinian territories, where it systematically violates basic human rights and commits war crimes.


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