Israel's top court sides with Palestinian against military: Is that 'activism'?

In a slap on the wrist to the army, Israel's Supreme Court on Wednesday ordered a stronger indictment for a military commander who stood by while a soldier shot a blindfolded and handcuffed Palestinian protester.

The decision was made after human rights groups brought a petition against a military prosecutor's charge of "improper conduct" for both the soldier and the commander, a lieutenant colonel.

The Israeli rights group B'Tselem had videotaped the soldier shooting a rubber-coated bullet at Ashraf Abu Rahmeh's foot during a protest against Israel's separation barrier a year ago. He was not seriously injured. (Watch the raw footage on B'Tselem's website.)

"The moral gap between the nature of the act described in the indictment and the manner of evaluation in the indictment ... is so deep that it cannot stand," wrote a unanimous panel of three justices, a common format the court uses to address human rights issues.

The ruling comes as right-wing allies of Prime Minister Benjamin Netanyahu are seeking to change the makeup of the court, considered one of the last governmental bastions of Israeli liberalism.

For the last two decades, Israel's high court has exercised what is seen on both sides of the political spectrum as judicial activism – roiling conservative lawmakers, the country's Orthodox Jewish rabbinic authorities, and the security authorities. It has come at a cost, drawing criticism that portrays the court as an ivory tower out of touch with the country's daily trials.

Echoing that perception, Aryeh Eldad of the far-right National Union Party says he wasn't surprised by the court's recent decision.

"[The Supreme Court] acts in a sterile environment – they don't feel the reality or the war between Israelis and Palestinians," says Mr. Eldad. "Too many times the Supreme Court in Israel backs the left-wing side, the Arab side, or what they interpret as the human rights side instead of the interest of the security of the state of Israel."

Ha'aretz reported that several residents of Jewish settlements were being nominated to fill court vacancies for the first time. Eldad said he supports nominating justices who have a more nationalistic political orientation so that the court better reflects the public. "We feel it's time to change the tyranny of the left over the Supreme Court," he says.

Israeli justices are nominated for the 12-member court by a committee of Supreme Court judges, government ministers, parliament members, and bar association members.

The court walks a thin line. Human rights advocates and Palestinians have criticized the court as overly deferential to Israel's defense officials when individual rights are violated in the name of security.

Mr. Rahmeh, the Palestinian man who was shot in the foot, told the Israeli news website Ynet that the only reason the court defied the military was because footage of the shooting had been publicized in the local and international media. Indeed, the Supreme Court left it up to the military prosecutor to draw up new charges.

And yet, the human rights groups that filed the challenge to the military prosecutor expressed satisfaction. "It conveys a message that protection of human rights must be a primary consideration for law enforcement agencies," they said a statement.