Shurat HaDin-Israel Law Center’s President Nitsana Darshan-Leitner appeared last week before Israel’s Supreme Court, sitting as the High Court of Justice (the “Bagatz”), to argue that the recent agreement with Turkey to restore relations between the two countries is unreasonable and contrary to the legal and security interests of Israel and its citizens.
Shurat HaDin filed a petition against the agreement on behalf of the families of terror victims Dani Gonen and Avraham Asher Hasno, and the High Court scheduled an expedited hearing on that and two other petitions challenging the agreement. The Court will issue a written decision on the three petitions.
According to Shurat HaDin, the fatal flaw in the Israel-Turkey agreement is that Israel abandoned its longstanding demand that Turkey must shut down Hamas’s headquarters in Istanbul and expel Hamas leaders from that country.
Darshan-Leitner explained to the Court that, after Turkey broke its ties with Israel following the 2010 Gaza Flotilla, Istanbul became a top sponsor of Hamas’s terrorist activity, funneling hundreds of millions of dollars to Hamas annually, and openly providing a haven in its territory for Hamas operatives. Among these is Hamas leader Saleh al-Arouri, who planned and directed Hamas’s June 2014 kidnapping and murder of three teenagers in Israel: 16-year-old Naftali Fraenkel; 16-year-old Eyal Yifrah; and 19-year-old Gilad Sha’ar.
While in the past, Israel has demanded that Turkey expel Hamas from its territory as part of any rapprochement agreement, in the current deal Israel settled for a commitment that Turkey will prevent “all terrorist or military activity against Israel from Turkish soil, including collecting funds for these purposes.” At the same time, Turkey has publicly stated that Hamas can remain in Turkey and that Turkey will maintain “diplomatic” relations with Hamas. After all, Turkey’s Prime Minister stated in January 2015: “For us, Hamas is not a terror organization; it has never committed any act of terror.”
Darshan-Leitner argued to the Court that by accepting the current agreement, the Government of Israel is implicitly allowing Turkey to maintain the false pretense that Hamas’s headquarters in Turkey will only be used for political, and not terror-related, activity. Israel has never before accepted a distinction between Hamas’s terrorist activity and its so-called “non-violent” activity, just as it has never accepted a distinction between a “political wing” and a “military wing” of Hamas. Such a distinction, she argued, is not only false, but it is also contrary to Israeli and U.S. antiterrorism law, and would be a windfall for terrorism.
Unfortunately, after deliberating, the High Court rejected the terror victims’ petition, ruling that it would defer to the executive branch’s discretion in this matter, accepting the government’s claims that it involved national security and foreign policy interests that should not be interfered with.