🍻 Selber Bier Brauen

The Amazon rainforest and the surrounding biomes are vital for the ecology and agriculture of the South American continent as well as for the world’s climate. The biodiversity of this region is not even close to being fully discovered, nor can its importance for life on this planet be fully grasped. At the same time, deforestation in the Amazon is so severe that some scientists see the world’s largest rainforest as close to irreversible “tipping points” where vast areas could dry out, unleashing ecological and economic havoc in Brazil but also releasing massive amounts of carbon into the atmosphere, with potentially catastrophic consequences for our global climate.

This article will look at cattle supply chains from the Amazon to global markets and will show how law plays an ambiguous role with respect to the Amazon. On the one hand, it enables neo-colonial exploitation of natural resources in the Amazon and secures the extraction of profits by legalising illegal deforestation. In this regard the criticism that law supports (neo-)colonial interests of economic and financial elites and creates even more wealth and power is proven right. On the other hand, global commodity chains touch upon various jurisdictions which offer legal pressure points to use law against capitalist interests for the protection of land and livelihoods of Indigenous and rural groups. Innovative transnational approaches to anti-money laundering laws and a growing body of the so-called corporate due diligence legislation in Europe and some countries in the Global South offer legal opportunities to challenge the current hegemonic economic practices. Drawing from my experience in holding multinational companies to account for their involvement in human rights abuses along global value chains and from building the Transnational Litigation Coalition (TLC), I want to explore how the legal regimes of a globalised economy can be confronted with potential counter-legal regimes. The concept of reflexivity as developed by scholars in the Centre for Advanced Studies “Reflexive Globalisation and the Law: Colonial Legacies and their Implications in the 21st Century” is helpful in describing the approach of Indigenous and rural communities as well as civil society organisations in partly using laws against their original intention. I will also briefly sketch out the necessity of new approaches to strategic litigation that are more collaborative and responsive to challenges of transnational cooperation.

Deforestation, cattle ranching, and the transnational process of legalising illegality

The economic exploitation of the Amazonian rainforest was systematically supported by the Brazilian military dictatorship in the 1960s. Today, more than 90 per cent of deforestation in the Amazonian rainforest is illegal under Brazilian law. Cattle ranching is the primary force in converting deforested land into pasture for cattle grazing and later into soy plantations. Next to soy and cattle, other important drivers of environmental destruction in the Amazon region are also gold and bauxite mining as well as timber harvesting. The Brazilian legal framework codifies processes to survey, demarcate, and title territories in the Amazon region and recognises in particular Indigenous peoples’ customary rights over their lands and resources. Through its agrarian reform agency, the Brazilian government also establishes settlements for landless peasants. Additionally, the government has established “extractive reserves” to protect the rainforest while enabling local communities to gather non-timber forest products such as nuts, fruits, and the sap of rubber trees. Despite the protected status, as of 2020, invading cattle ranchers laid claim to more than 120,000 square kilometres of Indigenous lands across Brazil – an area nearly three times the size of Switzerland. These ranchers understand themselves as bringing prosperity and development to the wilderness and, since the military dictatorship in the 1970s, have used various legal instruments to legalise their land grabbing retrospectively. Nevertheless, a lot of the current deforestation is happening illegally.

Such invasion leads to deforestation that not only destroys ecosystems but also results in human rights violations in different ways: Indigenous communities’ autonomy is undermined, exposing them to violence, threats, and the loss of their traditional livelihoods – experiences that can all be qualified as human rights violations under the UN treaties and, in many cases, as criminal offences under Brazilian law. Ranchers frequently subject their employees to forced labour and other forms of severe labour exploitation – referred to in Brazilian law as “conditions analogous to slavery”. Since 1995, federal labour inspectors have rescued more than 17,000 people from forced labour or other conditions analogous to slavery on cattle ranches – predominantly in parts of the Amazon rainforest where deforestation is most intense and persistent.

Thus, despite reasonably good legal protection, poor law enforcement and the significant economic interests of powerful corporations allow much of the meat and leather produced in the Amazon to stem from, or facilitate, illegal activities. As these commodities are traded transnationally from cattle ranches to slaughterhouses and tanneries, global food producers, and leather manufacturers for fashion as well as the car industry – their illegal origin is incrementally legalised through the supply process. Law enables this process through international trade law, contract law, and company law.

The actors involved in this transnational process are multinational meat-producing companies like JBS (headquartered in Brazil), trading companies like Cargill, logistics companies, global supermarket chains like Casino, and automotive companies like VW/Audi. Banks and other financial institutions finance transactions and invest in this lucrative business of resource extraction. All these actors organise their interactions through legal means such as contracts and other regulatory tools. As the commodity passes through different steps along the supply chain, it becomes increasingly difficult to trace it, and the multinational companies can easily turn a blind eye to the illegal origin of the commodity. While these corporations promise their best efforts to ensure “traceability”, they in fact condone the practice of “cattle laundering” and help obscure the origin of meat and leather, which contributes to the destruction of ecosystems, livelihoods, and human rights violations. All this is facilitated by economic legal regimes that re-describe illegal resource extraction as lawful, therefore enabling these goods to enter national and global supply chains legally. In this way, the fragmented transnational legal order functions to obscure responsibility and diffuse accountability.

Legal pressure points and opportunities for a reflexive re-purposing of law

While global supply chains are regulated by international trade law, it is the law of contracts and corporate law that secure the extraction of resources from the Amazon and enable the trade along global supply chains, facilitating the flow of profits. This global flow of commodities touches upon various jurisdictions and is also confronted with different legal regimes that open up the possibility for challenging the original illegality of extraction. Each of the corporate or financial actors involved in the trade of Amazonian meat and leather is incorporated across several jurisdictions in addition to Brazil – in Europe and North America. This gives Indigenous groups, civil society organisations, and human rights lawyers an opportunity to coordinate their efforts transnationally in response to commodity chains and the economic actors that drive them.

Anti-money laundering

Anti-money laundering (AML) legislation in the European Union, for instance, offers underutilised opportunities to challenge the trade and money flows derived from meat and leather produced on illegally deforested land. These laws are not designed to protect ecosystems or Indigenous lands; rather, they aim to prevent organised crime from legalising their profits. While the aims of AML law are to protect neoliberal market economies, representatives of affected communities are redeploying these laws to challenge the legitimacy of the accumulation itself. The dogmatic hook is the so-called “all crimes” approach of these laws, meaning that any crime can serve as a predicate offence. This means that any financial gain derived from the processing or trading of a product originating from a criminal offence of any kind is tainted. As a result, anyone dealing in Amazonian products derived from illegally deforested land may face potential criminal liability for money laundering. These legal arguments have been successfully tested in British courts and are currently under investigation in France. Additionally, the EU Anti-Money Laundering Regulation was reformed in May 2024 to impose strict due diligence obligations on accountants, auditors, tax advisors, and other so-called “obliged entities”. As this regulation will be implemented by the EU member states by 2027, it will potentially heighten compliance responsibilities on corporations dealing with produce from illegally deforested land.

Human Rights Due Diligence

A parallel development evolves around the concept of Human Rights Due Diligence (HRDD). Since the UN Guiding Principles on Business and Human Rights were adopted by the UN Human Rights Council in 2011 and the revision of the OECD guidelines for multinational corporations in that same year, companies have had a responsibility to detect and mitigate environmental and human rights abuses in their supply chains. These international standards have led to several legislative efforts in countries like Germany and France, but also by the European Commission. France introduced the Loi de Vigilance in 2017 and Germany the Supply Chain Due Diligence Act in 2021. On the EU level the Corporate Sustainability Due Diligence Directive was adopted in February 2023 along with other relevant regulations such as the European Deforestation Regulation. While the German law as well as the EU Directive have been just recently substantially watered down, an important essence of these laws remains: they establish a corporate due diligence duty. This duty obliges companies to identify, prevent, mitigate, and remediate negative human rights and environmental impacts in the company’s own operations, their subsidiaries, and their value chains. Rightsholders negatively affected by non-compliance with these due diligence obligations can either pursue civil litigation or use administrative enforcement routes to ensure that the rights violations they suffered end and harms are remediated. In practice this means that communities affected by deforestation can demand of that companies under the scope of these laws to stop using products from their territories and to help mitigate the harms. In France, a case against the French supermarket chain Casino has been filed. The plaintiffs request that the Court mandates Casino to develop, execute, and disclose a comprehensive vigilance plan that identifies and mitigates risks associated with the group’s operations. They also seek compensation for damage to their customary lands and the adverse effects on their livelihoods due to Casino’s failure to meet its duty of vigilance.

Reflexivity of the law to build counter-hegemony

Although legal regimes can initially enable neo-colonial exploitation, others can be used – such as the AML laws – against their original purpose to both protect rainforest ecosystems and give space for Indigenous and traditional peoples to claim their traditional rights to their territories. Protection, on the one hand, does exist on the national level in Brazil, but, while these laws are subverted due to powerful economic interests in exploitation, there are also legal routes that tackle the transnational actors who are incentivising these practices by maximising the profits and legalising illegality. Both these legal routes – AML and HRDD – are still in development and have not yet proven their effectiveness. Still, they hold the potential to not only substantially illegalise profits made currently through the exploitation and destruction of the Amazon rainforest; they offer an opportunity for counter-jurisdictional resistance, in the sense that Indigenous legal understandings of legitimate access and use of the Amazon’s resources are brought into legal disputes concerning globalised commodity flows and their (il)legality.

For this potential to be meaningfully used, transnational collaboration between Indigenous groups, civil society organisations, researchers, and legal experts is necessary and needs to further develop learning from past experiences of transnational strategic litigation. One example of such an initiative is the Transnational Legal Coalition. Groups involved are aiming to mirror and disrupt the legal infrastructure of globalised extraction. They work on connecting local Indigenous struggles with transnational legal routes to challenge the transnational actors involved in making rainforest destruction lucrative. The aim is to re-enforce local struggles of Indigenous and traditional communities in defence of their lands, traditions, and access to the forest by attacking the transnational economic actors, finance institutions, and economic service providers further down the supply chain.

The post (Il)legalising the Destruction of the Amazon appeared first on Verfassungsblog.

The energy transition has become a central normative axis of global climate action. International instruments, national regulatory frameworks, and public policies currently converge in the acceleration of renewable energy as a response to the climate crisis. However, this process, frequently presented as inherently positive, is not politically neutral. On the contrary, it unfolds asymmetrically across territories marked by deep historical power imbalances, particularly in the Global South.

Under the category of clean energy, extractive dynamics are reconfigured in ways that reproduce classic patterns of territorial dispossession of Indigenous peoples and rural communities, racial violence, and violence against women and girls. A weak implementation of the right to free, prior, and informed consultation, the erosion of environmental protection frameworks, and the limited enforceability of corporate human rights obligations reveal a structural gap between climate commitments and justice standards.

In this context, the energy transition directly challenges the law, not only as an instrument that enables investments and large-scale projects, but also as a field of dispute over responsibility, distribution of burdens, and reparation of harms. Can we speak of a just transition when social and territorial costs continue to be externalised onto the same groups historically subjected to vulnerability? This article puts forward the proposition that a truly reflexive energy transition necessarily requires not only recognising harms and measuring impacts but also dismantling entrenched forms of control, authority, and epistemic hierarchy within the governance of the transition itself.

Green colonialism

Many scholars have characterised this reconfiguration of current colonial relations, unfolding under the guise of energy transition or sustainability, as green colonialism. Far from representing a rupture with fossil fuel and extractivist models, the transition tends to inscribe itself, through new material forms and normative legitimacies, into a long-standing colonial regime of dispossession and inequality. As Hamouchene and Sandwell observe, transitions driven from the Global North are embedded in a logic of accumulation that reproduces “the parameters of dispossession and resource plunder that characterise the fossil fuel regime”, now under a paradigm of nature’s commodification presented as sustainable. In this sense, the energy transition is not primarily orientated toward guaranteeing access to new forms of energy that do not exacerbate the climate crisis but toward securing new cycles for wealth generation and ensuring the supply of industrial centres and elites.

Green colonialism thus constitutes a regime of structural externalisation of costs. The social, territorial, and cultural impacts of the transition are concentrated in territories that have been historically colonised, while financial and economic benefits are captured in the Global North. Other authors, such as Farhana Sultana, describe these dynamics as a web of material, epistemic, and political relations through which the climate crisis and its supposed solutions not only reproduce colonial, racial, and economic violence but also, in climate governance arenas such as the UN climate and biodiversity conferences, tend to obscure historical responsibilities, displace costs onto already marginalised populations, and produce new forms of control over territories, bodies, and futures in the Global South. The transition thus emerges not only as a technical process but also as a new field of geopolitical dispute over who decides, who pays, and who is sacrificed.

Law and the work of practitioners play a fundamental role in this new arena of contestation. Katharina Pistor explains this clearly when she notes that “capital is not a thing but a legal relation”, produced through the legal codification of assets to which law grants “priority, durability, universality, and convertibility”. From this perspective, the energy transition is not only a technological transformation but also a process of legal recodification of new objects that can once again be appropriated, protected, and made profitable in the name of sustainability.

In line with Pistor, law cannot be understood as a neutral instrument that merely regulates the transition. Categories such as property, investment, clean energy or due diligence are not only technical concepts but also legal and political constructions anchored in normative matrices of the Global North that are projected onto colonial and postcolonial territories, either to enable dispossession or, in their counter-hegemonic potential, to try to prevent it. The question is not only what the law regulates in the energy transition but also whom it protects, whom it exposes and under which rationalities of power such protection or exposure is structured.

Legal instruments and strategic litigation

Examples of global legal instruments that currently frame the energy transition include the Paris Agreement, the Escazú Agreement, and the Corporate Due Diligence laws. These instruments are often presented as normative proposals aimed at aligning business activity with climate action and the protection of human rights. However, both in their design and in their implementation, these frameworks have tended to reproduce structures of inequality by prioritising investment stability, corporate legal certainty, and global competitiveness over the effective guarantee of human rights, particularly the rights of Indigenous peoples and communities.

Nonetheless, these same legal frameworks have the potential to be reclaimed from below by communities defending their territories, who contest them through a counter-hegemonic reading. In this blog, and as a lawyer who has accompanied communities in the Global South for twenty years, I would like to share reflections from two experiences that illustrate these tensions with particular clarity: the litigation pursued by the Zapotec community of Unión Hidalgo against Électricité de France in Mexico and the defence of the Pilmaiquén River by the Mapuche Williche people against the Norwegian state-owned company Statkraft in Chile.

In the Unión Hidalgo case, the Gunaa Sicarú wind farm promoted by Électricité de France was developed through irregular individual contracts over Indigenous communal lands, without guaranteeing an adequate consultation process. The community documented practices of social fragmentation, criminalisation, and violence against human rights defenders. The community, in alliance with the Project on Economic, Social and Cultural Rights (ProDESC) and the European Centre for Constitutional and Human Rights, decided in 2021 to file legal action under the French Duty of Vigilance Law, the first case in which an Indigenous community in Latin America used this law to defend its territory.

Although this law represented a historic breakthrough by turning due diligence into a legally binding obligation, its practical application has revealed structural gaps and procedural barriers that severely limit its transformative potential.

Four years after the beginning of the litigation, it has become evident that companies continue to interpret the duty of vigilance as a mechanism for managing reputational risks rather than a substantive duty aimed at preventing actual harm to people and territories. Ambiguity regarding the scope of protected rights and the high evidentiary burden placed on communities have turned due diligence into a highly technical, costly, and inaccessible field for those who suffer the impacts.

This experience is not exceptional. Over more than twenty years of strategic litigation and community accompaniment at ProDESC, we have documented numerous renewable energy projects in Latin America that have advanced systematically over Indigenous territories without guaranteeing free, prior, and informed consent, reproducing practices of land grabbing, community fragmentation, criminalisation, and violence, particularly against women defending the community territory and rights. In these contexts, due diligence has not operated as a material limit on corporate power capable of mitigating the climate crisis but rather, in many cases, as a device that legally legitimises projects presented as green or sustainable, even when they are sustained through structural rights violations.

The Pilmaiquén case, in Mapuche Williche territory in southern Chile, reinforces this critical reading through an additional dimension: the leadership of Indigenous women of the Global South in the struggles against green colonialism. The defence of the river has been led primarily by women such as the Machi Millaray Huichalaf: her political and spiritual work combines territorial protection, community life, and cultural identity to oppose hydroelectric projects promoted by the Norwegian state-owned company Statkraft. These projects have been financed without adequately guaranteeing the right to consultation or consent of the Mapuche Williche people, disregarding their spiritual, cultural, and political relationship with the river and imposing a development model disconnected from Indigenous self-determination. This process has generated recurring patterns of criminalisation, selective prosecution, and gender-based violence against women human rights defenders, revealing how the energy transition can deepen structural inequalities when imposed on historically racialised territories.

Through a transnational strategy, Mapuche communities supported by ProDESC and the Initiative for Transnational Justice activated a procedure before the Norwegian National Contact Point of the OECD, shifting the centre of accountability to the parent company in the Global North. This process has made it possible to internationally denounce the territorial, cultural, and spiritual impacts of the hydroelectric projects and to highlight the violence against women human rights defenders in a space typically dominated by technical language about responsible business conduct. The Pilmaiquén experience shows that a truly decolonising approach to law must not only question its own categories but also recognise Indigenous women as central political subjects of the transition, dismantle the supposed neutrality of corporate responsibility mechanisms and acknowledge that without self-determination, without free, prior and informed consent and without effective protection for defenders, there can be no meaningful discussion of a just transition.

Towards a transition from the Global South

In light of the structural limits of what is commonly referred to as the law of the energy transition as it currently prevails, it becomes essential to imagine and build alternative transition pathways: energy processes anchored in the self-determination of peoples, the centrality of territories, and the recognition of legal pluralism. From the Global South, the struggles of Indigenous communities and Indigenous women human rights defenders compel us to envision a feminist transition from the South, one that does not reduce energy justice to emission reduction metrics or to green financial flows but instead situates it within relations of power, historical responsibility, and respect for spiritual ties with nature. A truly just transition requires a reflexive dismantling of the technical neutrality of law, one of the key focuses of the dialogue being held at the newly established Centre for Advanced Studies RefLex. In this context, it should also contest the corporate capture of sustainability and redirect normative frameworks toward the effective protection of life. It is not only a matter of changing the energy matrix but of transforming the logics that determine who pays, who benefits, and who is considered expendable in the name of the climate.

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In the opening pages of his 2025 book, The Rule of Law in Israel: Confronting the Threat to Democracy (published in Hebrew by Reichman University), retired Supreme Court Justice Yitzhak Zamir offers a pointed disclaimer: “This book discusses only the situation within the State of Israel, and not the situation in the Judea and Samaria area.” This omission is not an isolated instance in Zamir’s writing. In his weekly Haaretz op-eds, where he frequently calls for defending the Supreme Court as the ultimate guardian of Israeli democracy, Zamir maintains a conspicuous silence regarding the Court’s adjudication of issues involving Palestinians in the Occupied Territories.

Echoing Zamir’s approach, the Israeli Supreme Court has spilled oceans of ink over the last two years, proclaiming its defense of the rule of law. For example, in the name of protecting the rule of law and democracy, the Court, in a series of decisions, ruled that Supreme Court Acting President Judge Yitzhak Amit must be appointed as the Court’s permanent President against the Government’s wishes (HCJ 1711/24). As the authorities of the permanent Court’s President are identical to those of an Acting President, the appointment was primarily necessary as a symbolic victory for the judiciary. Yet, the Court’s judges described it as key to ensuring the rule of law.

Rhetoric and Silence

Yet, all this grand rhetoric regarding the rule of law in this and other Court decisions, cannot obscure the grim reality of utter lawlessness reflected in hundreds of Supreme Court decisions over the past two years regarding Palestinians in Gaza. These rulings lack the grand rhetoric and the length of the Court’s “saving democracy and the rule of law” judgments. Often spanning a mere two or three pages, this caselaw exposes the way in which Palestinian subjects in the Gaza Strip have been treated and reveals a starkly different meaning for what the rule of law is for Supreme Court judges.

One of the most revealing ways to track the erosion of the rule of law in the Court’s caselaw is through examining its jurisprudence in “Habeas Corpus” petitions. Literally translated from Latin as “produce the body,” this type of petition requires the state to bring a detainee before a court to justify the legality of their imprisonment.

Originating in medieval English law, the writ of Habeas Corpus established the foundational bedrock of individual liberty against the monarch’s unchecked power. To this day, in systems influenced by English law, it is regarded as the most basic tool for the judiciary in ensuring human liberty.

Recognizing the vital role of Habeas Corpus petitions in safeguarding human liberty, one of the first steps of the Israeli Supreme Court, even amidst the turbulence of the War of Independence, was the fortification of the Habeas Corpus decree. In his book, Zamir traces a 1948 judgment in a Habeas Corpus petition as a foundational moment for the rule of law in Israel   (HCJ 7/48). In its landmark judgment, the Court ordered the release of a Palestinian suspected of collaborating with the enemy, simply because the detainee had been denied the right to appeal his incarceration. Zamir notes that while the legal defect appeared “marginal” on the surface, the Court, “which was in its early days and still lacking in reputation and experience, was determined from the very outset to defend the rule of law.”

“Catch us if you can”

Contrary to the Court’s early days,  during the Gaza War, the Court did not stress the importance of the rule of law in Habeas Corpus petitions. Consider the case of Hilal al-Bashiti, a 16-year-old Gazan teenager detained in late June 2025 while standing in a food line near Rafah. Al-Bashiti was seen being taken by IDF soldiers, after which he effectively vanished, and his fate was unknown to his family, as happened with thousands of other Gazans throughout the war.

His family turned to the human rights organization HaMoked: Center for the Defence of the Individual, which contacted the IDF. The Israeli military confirmed al-Bashiti was in custody but barred him from meeting with a lawyer. HaMoked filed a Habeas Corpus petition to the Supreme Court, and subsequently, the State decided to release al-Bashiti back to Gaza. Consequently, the Court quashed the petition without holding a hearing because it was “moot” in light of Al-Bashiti’s release (HCJ 78111-07-25).

Several weeks ago, I met with attorneys from HaMoked. One of them, Advocate Ameeneh Qumber, shared a staggering statistic: she has filed over 60 Habeas Corpus petitions on behalf of Gaza detainees after their families contacted Hamoked. Yet she has not met a single one of her clients. In every case, the detainees were released before the scheduled hearing, leading the Court to quash the petitions as moot following their release.

A review of dozens of the Court’s rulings reveals a clear pattern: the State has used this procedural loop to dodge any substantive judicial review of its wartime detention policy. The Israeli security forces have detained thousands of Palestinians in Gaza during the war—many of whom were never even suspected of militant activity—and held them for varying periods. In the vast majority of these cases, no petition was ever filed. Yet, in those rare instances where families managed to reach human rights organizations and file for Habeas Corpus, the following pattern emerged. The Court would order on a hearing scheduled within a few weeks, only for the security forces to “opt” to release the detainee back to Gaza just days before the court hearing. By promptly quashing these petitions as “moot,” the Court has effectively allowed the State to evade any scrutiny over its arrest policy. The fundamental question—whether these detentions were ever justified—has remained unanswered.

Human rights organizations attempted to challenge this detention policy by submitting what is known as “public petitions,” which aimed at the general policy rather than an individual case. Yet these petitions fared no better during the war. In these instances, the Court repeatedly granted the State Attorney’s requests to postpone the submission of the state’s reply, pushing hearings further and further down the road.

In this manner, the state devised a “catch us if you can” strategy that allowed security forces to detain thousands of Palestinians without the legality of their detention policy ever facing genuine judicial scrutiny.

When dealing with public petitions from public interest groups on matters such as the appointment of a Supreme Court President, the Court has acted with the utmost urgency. In those cases, rulings are handed quickly, framed by the dire warning that democracy and the rule of law stand on the brink of collapse.

But when it came to the detention of Palestinians from Gaza, many of whom were not involved in the fighting, the sense of urgency mysteriously evaporated. After all, these are merely human beings—flesh and blood Arabs—rather than the clean, abstract, and beautiful concepts like “Democracy,” or “The Rule of Law.”

Producing a Body in a Habeas Corpus Petition

Yet, not every Habeas Corpus petition in the last two years ended without the Court producing a human body. Consider the case of Ihab Diab, who vanished from the Gaza Strip in December 2023. In September 2024, the IDF responded to his family’s inquiries by stating that “there is no indication that the individual in question was arrested or is being held by our forces.” After further efforts by the family to locate Diab proved fruitless, in May 2025 his brother and wife filed a habeas corpus petition.

In July 2025—a year and a half after his disappearance—the State Attorney’s Office informed that Diab was “no longer alive,” and the IDF was holding his body. A Military Police investigation into the circumstances of his death in custody was subsequently opened. To explain why the family had been left in the dark for nearly two years, the military informed that it had been “decided to refine the phrasing of the response […] to avoid providing answers that might convey the wrong message.” (HCJ 78757-05-25)

The panel of Supreme Court judges in the Diab case included Judges Ofer Grosskopf, Alex Stein, and Khaled Kabub. Writing for the Court, Judge Kabub explained that the petition had “exhausted itself” and hence had to be quashed. Indeed, as the meaning of Habeas Corpus is to “produce the body,” in the Diab case, the Court did the job. True, the English judges who envisioned the Habeas Corpus writ intended for a living person to be brought before a court of law to test the legality of their confinement. Yet, Israeli Supreme Court judges have always boasted of developing administrative law far beyond its humble English origins.

The same judges who place petitions regarding the appointment of a Court President at the very heart of the struggle to “save democracy and the rule of law,” sounding every alarm bell that the rule of law is in mortal peril, are those who do not flinch in emptying Habeas Corpus petitions of any meaning when it comes to Palestinians. But what, truly, is the “rule of law” when the writs of Habeas Corpus have been stripped of meaning?

An earlier version of this article was published in Hebrew on “Local Call.” 

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