Lighting Up Enemies' Homes

The legal case now before Israel's High Court of Justice involving the supply of Israeli electricity to the Gaza Strip is by international standards a weird one. It helps explain why there is a war currently raging between the High Court and the minister of justice, the rights and wrongs of which cannot be painted in black and white.

The case came before the court when it agreed to hear an appeal from several Israeli humanitarian organizations asking it to constrain Israel's government from carrying out a plan to punitively reduce the flow of electricity to the Gaza Strip, which receives most of its current from Israel's national grid.

This should raise eyebrows among jurists unfamiliar with the Israeli system. In the first place, petitioners in most countries cannot go directly to a supreme court without first passing through lower courts; in Israel this is not only possible, it is actively encouraged by the High Court itself. And secondly, in what other country would a supreme court listen to an appeal on behalf of an enemy country with which its own country is at war?

For the past year the Gaza Strip has been controlled by Hamas, which openly states that its aim is to destroy the state of Israel and routinely allows armed groups operating from its territory to fire mortar shells and rockets at Israeli towns and villages — and for the past year, too, Israeli troops have regularly engaged these groups, inflicting and taking casualties. And yet throughout this period, Israel has gone on supplying the Gaza Strip with electricity, as well as with such other necessities such as fuel and foodstuffs. Now, argue the appellants, it should be legally required to continue doing so.

This is an argument unprecedented in the history of warfare. Imagine that the American government had sold wheat to Germany during World War II. And then imagine that, after several years of doing so, it decided to reduce such shipments and human rights groups argued before the U.S. Supreme Court that this deprived the German people of their daily bread.

And finally, imagine that the justices in Washington not only agreed to hear the case but instructed the government — similarly to what the High Court did this week in Jerusalem — to provide it with information about just how many Germans would go hungry because of its action and how their caloric intake would be affected.

True, World War II is not quite the equivalent of the fighting between Israel and Palestinian irregulars in Gaza. Even so, there is something astonishing about what Israel's High Court considers to lie within its jurisdiction.

There is, of course, a history to this — or more precisely, two histories. One is the fact that the millions of Palestinians who have lived in Gaza and the West Bank under total or partial Israeli military occupation since 1967 do not have access to the Israeli civil court system and are therefore often helpless to legally defend their interests.

Already decades ago, therefore, the High Court opened its doors to them in order to give them a measure of legal recourse. And although Gaza is no longer under Israeli military occupation of any kind, the court has ruled that, there being no other recognized sovereign there, Israel still bears responsibility for the Gazans' welfare according to international law.

The second history is that of Israel's highest judicial body under the 11-year tenure of Chief Justice Aharon Barak, who before his retirement last year turned the court into an extremely activist and liberally-oriented forum that continually expanded its powers at the expense of Israel's legislative and executive branches.

There was almost no area of public policy that the Barak court shied from intervening in, from the appointment of cabinet ministers to military operational procedures in the occupied territories, and Mr. Barak's successor, Chief Justice Dorit Beinish, has carried on in that tradition.

The Barak court always had its critics who accused it of a judicial imperialism that usurped functions that were none of its business, but there was little institutional opposition to it until the appointment this year of Tel Aviv University law professor Daniel Friedmann as Israel's minister of justice.

Mr. Friedmann has changed all that. Cutting the High Court down to size has become a mission for him — some would say an obsession. In a series of legislative proposals now before the Knesset, ranging from revising the method of appointing High Court justices to restricting their powers in various ways, he has tackled the court head-on and been accused of trying to destroy it.

Mr. Friedmann has certainly not been a good politician; he has made enemies where he didn't have to and has done a poor job of explaining his position to the public. Moreover, he has done the High Court an injustice by refusing to concede that its judicial activism often was necessary to fill a vacuum created by legislative and executive weakness and by the failure of Israel's politicians to deal with problems that were properly in their domain.

Still, if Mr. Friedmann has sometimes gone overboard, so has the High Court. Its latest decision regarding electricity for Gaza is an excellent example. Although its concern that the ordinary Gazan should not have to sit in darkness may be admirably sensitive, something is fundamentally askew when the highest judges of the land think it is up to them to decide whether the light bulbs should be kept burning in enemy homes. About such things, Mr. Friedmann has a point.

Mr. Halkin is a contributing editor of The New York Sun.