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Kathleen
Cavanaugh
Lecturer,
Irish Centre for Human Rights, National
University of Ireland
The
question that has been posed here today – a question concerning the interplay
between human rights organisations and the Israeli Supreme Court – lends itself
to two distinct narratives. One
narrative suggests that engagement with a state body (even if by proxy) confers
legitimacy. The other, by contrast, argues
that such engagement does not legitimize the state body but rather highlights
the legal lacunae between the court’s arguments (and often its subsequent
decision) and international legal norms.
The
argument that engaging the Israeli Supreme Court allows justice to be done with
due process – ‘virtually’ achieved – has merit.
Having created this illusion, NGOs are left to engage in a ‘virtual’
discussion on the question of human rights.
Within this legal space, international legal norms are stretched
and a
process of the politicization of law (grounded in a necessity defense)
unfolds.
In order to compete, NGOs must often ignore the most compelling legal
avenues
offered by international law and instead engage with arguments
proffered by the state (as the recent case on cuts to the fuel and
electricity in Gaza highlights).
Having
accepted that the space for argument is, at best, compromised, and at worse,
corrupt, NGOs and other advocates are now asking: is it worth it? My answer is yes, engagement with the Israeli
Supreme Court is worth it, but my reasoning is posited less from the
prospective of what can be achieved and more from the understanding of what
could potentially be lost. NGO
engagement forces the court, even in this most limited space, to engage with
international law and, more importantly, to have its engagement (and decisions)
documented. Decisions that fall short of
compatibility with international law are exposed in this space. This lacuna then
becomes part of the historical record, providing a forensic account of
violations that can, in the transitional phase, address questions of accountability.
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