A strange thing happened in the Israeli Supreme Court the other day. Prior to a hearing on petitions brought by the Association for Civil Rights in Israel to force the Israeli government to comply with the International Court of Justice’s ruling that the security fence is illegal, Justice Salim Joubran recused himself on the grounds that one of the petition deals with a section of the fence adjacent to a West Bank village in which his brother lives. The decision will have an effect on a member of my family, Justice Joubran said in explanation of his decision to recuse himself.
While such a recusal would be matter-of-course in most advanced judicial systems, not in Israel. Such recusals are rare for Israeli Supreme Court justices. Court Vice-President Justice Theodore Or famously refused to recuse himself from hearing a case in which the counsel for one of the parties was a close personal friend, as was a key witness in the lower court proceedings. The Code of Ethics for Judges, which requires recusal in such cases, said Or, is only advisory, not binding.
Remarkably the Supreme Court, which is notorious for imposing rigorous legal standards on the other branches of government that have no basis in any Knesset legislation, upheld Or’s position, despite the fact that the Code of Ethics was drafted by a former President of the Supreme Court.
Indeed the justices regularly treat the Court as if it were a private fiefdom, appearances be damned. For instance, they choose one another’s children to clerk for them.
Maariv investigative journalist Yoav Yitzchak revealed last week that the daughter of the next Court President, Justice
Dalia Dorner Dorit Beinisch, was given a position in the State Prosecutor’s office in violation of civil service regulations. That appointment was pushed ahead by former State Prosecutor Edna Arbel, whose own successful candidacy for the Court was pushed by her good friend Dorit Beinisch, a member of the judicial selection committee. One hand washes the other. In her new position, the younger Beinisch will regularly be appearing before the Supreme Court of which her mother is a member and future leader.
So why did Joubran depart from the accepted norms for Israeli Supreme Court justices? My suspicion is that as an Israeli Arab, and by definition not a member of the Ashkenazi elite, he has not yet absorbed the belief of Israel’s elites that everything they do is by definition for the greater good.