by Frances Raday
The violence during the three years of the Second Intifada has inevitably taken its toll on human rights in Israel. Ongoing inter-ethnic violence incites deep distrust in members of the opposed community and, in turn, undermines the socio-psychological basis for the human rights agenda. When the violence takes the form of terrorism, and particularly suicide bombings, the constant threat of attack by members of another ethnic or religious group breeds a justified paranoiac fear of “the other.” The most basic attribute of human rights doctrine is that there must be recognition of the equal entitlement of “the other,” that is, of those who do not belong to the “I” or the “we” of society who formulate social epistemology, political policy and law. “The other,” in this sense, is the Palestinian. In other contexts it is the Jew, the slave, the infidel, the black, the homosexual or the female. To assure consideration of the interests of “the other” in the determination of rules of justice in the social contract, political theorist John Rawls posited a hypothesis in which the participants were to deliberate in the original position from behind a veil of ignorance, unaware of their social status and identity. Rawls’ original position can be described as the pessimistic version of equal entitlement, existing only in the realms of hypothesis. Human rights doctrine, translated as it is into normative obligation and requiring as it does equality for “the other” in the real world, is the optimistic version. Persistent inter-ethnic violence undermines human rights optimism and results in erosion of social commitment to the human rights agenda.
Human Rights and Democratic Self-Determination
Human rights can only thrive under conditions of democratic self-determination. The ongoing imposition of Jewish settlement under Israeli sovereignty in the heart of the land area required for the expression of the Palestinian right to self-determination clearly negates such conditions. As Amos Elon, the Israeli writer and intellectual, said: “The vast settlement project after 1967, aside from being grossly unjust, has been self-defeating and politically ruinous. It is not because Palestine is entitled to be free of Jews - any more than Israel is entitled to be free of Arabs - that this project has been such a disaster; it is because it does not merely demand the right of Jews to be admitted as a minority to a future Palestinian state but rather holds on to the concept of the settlers’ right to Israeli sovereignty and the protection of the IDF.”1 This demand undermines the feasibility of self-determination for the Palestinians and, in turn, compromises democracy for the Jews.2
In the Second Intifada, Palestinians have resorted to armed resistance and terrorist violence, which has been conducted within civilian areas and by civilian protagonists. The use of suicide bombings against Israeli targets, often teenagers and children, has been answered by reoccupation of areas under Palestinian Authority control, targeted killings of terrorist organizers, demolition of homes and the use of human shields to enter homes. This has exposed the Israel Defense Forces (IDF) to a very high-level risk of violating Palestinians’ human rights. While, in war, military operations are usually regarded as self-defense, the circumstances of terror, with its blurring of military and civilian boundaries, have left gray areas that cannot be easily classified. Where the confrontation is not between two armies but between an army and armed civilians in civilian dress, in civilian areas, it is much harder to prove that military measures are a legitimate form of self-defense.
Role of the Supreme Court
The Supreme Court, with Justice Aharon Barak writing the lead opinions, has made some decisions that act to restrain military responses to terrorism. The first decisions were made before the outbreak of the Second Intifada. The court ruled that Lebanese civilians could not be held hostage in negotiations for the release of Israelis held by terrorist organizations.
It also ruled that the use of moderate physical force in interrogations of suspected terrorists is illegal, that physical pressure cannot be given prior authorization and an officer accused of illegal use of force could only raise an ex post facto defense of necessity.3 During the course of the Second Intifada, the court held that the reassignment of residence of a suicide bomber’s family from the West Bank to Gaza was governed by the Geneva Conventions and that, although it was not a deportation, it could only be carried out where the members of the family had aided the terrorist act and where they continued to constitute a security risk.4In other decisions, the court has either endorsed army policies or refused to intervene. Thus, as regards house demolitions, Justice Eliahu Maza justified the demolition of the homes of suicide bombers, both as a deterrent and an act of punishment.5 As regards targeted killings, the court held: “The choice of military means to prevent murderous terrorist attacks is not the kind of issue in which the court intervenes.” Close to 100 petitions against the IDF have been rejected in a similar cryptic way. In the recent case of Gussin6, Justice Barak held that these issues were justifiable, but he nevertheless rejected the petition.
The potential jurisdiction of the International Criminal Court casts a new international focus on these issues. The Palestinian Authority cannot, at present, invoke the jurisdiction of the ICC, as it is not a state, but the future potential of jurisdiction will materialize when Palestine becomes a state. In such an event, the separation of the two peoples into separate states should also remove the human rights ambiguity of military confrontation, intrinsic to the Intifada.
Minority Rights in Israel
Within Israel proper, minority rights are those most directly threatened by the Intifada, as there is undoubtedly a political connection between the two issues. The deaths of 13 Israeli-Palestinians and one Palestinian in confrontations with the police on the first day of the Second Intifada tragically demonstrated the potential impact of the Intifada on the relationship between the two groups. The government set up the Or Commission to investigate police behavior in this violent internal clash that was without precedent in its severity.
The question of minority rights in Israel is played out in the context of a deep ideological rift as to the very classification of the Israeli-Palestinians as a minority at all. It has been said that the preference of the Israeli-Palestinians is that Israel become a bi-national state.7 However, there have been signs that the current mood is to make more radical claims. Mohammed Dahle of Adalah, the Legal Center for Arab Minority Rights in Israel, said:
“I know that it is not our fate to be beaten back and downward. And I know that, in fact, we are not a minority... If you open the atlas and look at the map for a minute, this is what you will see: 300 million Arabs all around, a billion and a half Muslims. So do you really think you can go on hiding in this crooked structure of a Jewish democracy? ...At the end of the day, it is the natives, not the immigrants, who have a supreme right to the country.”8
The Supreme Court has emphasized the place of minority rights in the context of a Jewish state. Justice Barak, president of the court, said:
“[T]he values for the State of Israel as a Jewish and democratic state, amongst other things, provide the basis for the right of the Jewish people to be autonomous in its own sovereign country ... From these values ... a number of conclusions should be derived: Hebrew will be the main language of the state and its main holidays will reflect the national revival of the Jewish people; it is clear that Israel’s heritage will be a central component of the state’s religious and cultural heritage... But, from the values of the State of Israel as a Jewish and democratic state, it can in no way be derived that the state will discriminate between its citizens. Jews and non-Jews are citizens with equal rights and obligations in the State of Israel.”9
In this context, on the right of political representation of the Israeli-Palestinian population, there has been a long saga of legislation and High Court of Justice decisions regarding the issue of the admissibility of advocating the demise of Israel as a Jewish state. During the Second Intifada, the Knesset, adding to existing statutory criteria for disqualifying political parties that challenge the existence of the State of Israel as the state of the Jewish people10, passed a legislative amendment disqualifying any list of candidates that supports an armed struggle of an enemy state or a terrorist organization against the State of Israel. In the 2003 elections, the Elections Committee disqualified Azmi Bishara, his Balad Party, and Ahmed Tibi11 on the grounds they negated the existence of the State of Israel and supported an armed struggle of an enemy state or a terrorist organization against it. The Supreme Court reversed these decisions on the grounds that there was not enough evidence to justify limiting the freedom to participate in the political process.
Prior to the outbreak of this Intifada there had been considerable progress regarding the recognition of the right of Israeli-Palestinians to nondiscrimination and equality of opportunity in economic and social activities. Anti-discrimination legislation that provided protection against discrimination on grounds of sex or parenthood was extended to race, religion, nationality and country of origin. In 2000, legislative amendments made to ensure women fair representation in the directorates of government companies12 and civil service promotions13 were amended to extend the requirement to fair representation for the Arab population.14 In Adalla II, in 2000, the High Court of Justice set an important principle, requiring the application of equality in social and economic rights to the Israeli-Palestinian minority.15 The court ordered the state to provide proportionally equal budgets for burial grounds to the different religious groups in relation to their population size. Justice Itzhak Zamir held: “[T]here is a need to determine priorities in the distribution of budgets. However, these priorities must be based on material considerations that conform to the principle of equality and not invalid considerations, such as religion or nationality.”16 This decision opened the way to discourse on equality and legal arguments on budgetary allocations. In July 2000, the High Court of Justice ruled that the Education Ministry’s Department of Education and Welfare, for assistance to weaker pupils, should provide the Arab sector with a budget proportionate to its percentage of the population - indeed, by the time the appeal was brought before the court, the department had already amended its budget plans to allocate 20 percent of its budget to the Arab and Druze sector.17
Impact of the Second Intifada
During this Intifada, the High Court of Justice has continued to apply these principles of equality. In July 2001, the court ruled that Arabs should be given more adequate representation in the Israel Land Council, which determines the policy of land ownership in Israel, maintaining that the right to fair representation of the Israeli-Palestinian population in the public sector is a general right based on the principle of equality and is not confined to statutory affirmative action programs18. In December 2001, the court held that the budget allocated to the reconstruction of Arab villages and towns in the “suburb rehabilitation plan” should comply with the Arab sector’s needs, and should not be smaller than the relative size of the sector in the general population.19
Much of the legal progress, which was made in recognizing the Israeli-Palestinian populations’ right to social and economic equality and maintained in the decisions and rhetoric of the Supreme Court during the Second Intifada, was made against a backdrop of government neglect of its administrative responsibility to do so. Although the legal mechanisms are now in place to prevent discrimination against Israeli-Palestinians, the results have been disappointing. In government service, only five percent of employees are Israeli-Palestinians, although they constitute almost 20 percent of the population. In terms of government companies, there has been a far more significant impact on the promotion of women than on the promotion of Israeli-Palestinians.20 Most of the development of residential housing is divided into sectors for the Jewish and Israeli-Palestinian communities, and there are allegations of discrimination in the implementation of zoning and planning laws, and of inadequate provision for expansion of housing schemes in Israeli-Palestinian towns and villages. The Kaadan decision, in which the High Court of Justice accepted the petition of a Muslim couple to submit their candidacy to live in a Jewish settlement, has not been implemented. In education, there is a significant gap between the achievements of Israeli-Palestinian and Jewish school children - only 35 percent of the former acquire matriculation certificates, compared to 46 percent of the latter.21 To ameliorate the situation, in 2000, the government adopted a Five-Year Plan, but it has only been partially implemented.22 Whether the lack of progress on these issues can be attributed to the Second Intifada is a matter for speculation. Indeed, it could be argued, that the threat of members of the Israeli-Palestinian minority identifying with the goals of the second Intifada could goad the government into improving the standing of this community. At the time of writing, the government had declared its commitment to closing the social and economic gap and to assuring equal education budgets per capita in the Arab sector.
The Second Intifada came at a time when there had been a considerable strengthening of human rights in Israel and at a time, long overdue, when affirmative action and equal economic opportunity rights were being extended by judicial directive and governmental declaration to the Israeli-Palestinian minority. During the Intifada, maintaining settlements in the West Bank and Gaza, the fear instilled by terrorism and the counter-violence adopted as the method of response, all contributed to undermining respect for the dignity of “the other,” which is crucial for the human rights agenda. The Supreme Court has only rarely and marginally intervened in these matters. During this period, as far as minority rights in Israel are concerned, the political establishment has vacillated between an aggressive policy against the Israeli-Palestinian political challenge and conciliatory policies on legal and socio-economic matters, while the Supreme Court has continued to insist on the government’s obligation to treat the Israeli-Palestinian minority equally, to respect their human rights and to allow their full political participation.
1 Elon, Amos. Israelis and Palestinians: What Went Wrong? New York Review of Books (Dec. 19, 2002), available at http://www.nybooks.com/articles/15935.
2 Raday, Frances. Determination and Minority Rights in the Israeli-Palestinian Conflict (2003) 26 Fordham International Law Journal 453
3 H.C. 5100/94 Committee against Tortures vs. the Government of Israel P.D. 53(4) 817, Article 34(11) Penal law-1977
4 H.C. 7015/02 Ajuri vs. The IDF Commander in the West Bank, P.D. 56(6) 352
5 H.C. 7473/02 Id Bahr vs. The IDF Commander in the West Bank, P.D. 56(6) 488
6 H.C. 4219/02 Gussin vs. The IDF Commander in the West Bank, P.D 56(4) 606
7 Ilan Saban, The Collective Rights of the Arab-Palestinian Minority in Israel: Do They or Do They Not Exist and the Extent of the Taboo, 26 Iyunei Mishpat 241, 244-45 (2002) (author’s trans.) (on file with author)
8 Ari Shavit, Interview: Travels with Mohammed, Haaretz Magazine, Jan. 3 2003 (author’s trans.) (on file with author).
9 H.C. 6698/95, Kaadan v. ILA, P.D 54(1), 258 (author’s trans.) (on file with author).
10 At the time of writing this article, the High Court of Justice had taken the unprecedented step of effectively deleting the factual part of the ruling it made in 1999, which attributed to Bishara the denial of the existence of Israel as a Jewish state, on the grounds that he had not been called to give evidence and had not had an opportunity to respond to the allegations.
11 Gideon Alon and Yair Ettinger, AG Against Banning Tibi, Dehamshe from Competing in Elections, Virtual Jerusalem available at http://www.virtualjerusalem.com/news/lateststories/?disp_feature=er9I8h (stating that Attorney General Elyakim Rubinstein was recommending to the Elections Committee to refrain from banning Ahmed Tibi from running in elections). The call to ban Tibi and his party, Hadash-Ta’al, was based on allegations that Tibi advocated or at least supported suicide terror attacks against Israelis. Id. Also Israeli Ministry of Foreign Affairs, Candidates for the 16th Knesset (Jan 9, 2002), available at http://www.mfa.gov.il/mfa/go.asp?MFAH0mv80 (stating that Elections Committee ruled to disqualify Ahmed Tibi from running in the Jan 28 election).
12 Governmental Companies Law, 1975, S.H. 770, art. 18(a) (author’s trans.) (on file with author).
13 Civil Service (Appointments) Law, 1954, as amended in 1995, art. 15(a) (author’s trans.) (on file with author).
14 It is interesting to note that of the many groups in the highly fragmented and segregated Israeli society (such as Sephardi Jews or Ethiopian Jews) who are considered vulnerable to de facto discrimination, it is only the Israeli-Palestinians who have been included in the fair representation measures.
15 Saban, supra at 292.
17 H.C. 2814/97 Follow-up Committee on Arab Education in Israel v. Ministry of Education, 54(3) P.D. 233 (author’s trans.) (on file with author).
18 H.C 6924/98, Israel Human Rights League v. the Government of Israel 54(5) P.D. 15 (author’s trans.) (on file with author).
19 Council of Heads of Arab Local Authorities and others v. Minister of Construction, Dec. 2001 (not yet published) (author’s trans.) (on file with author).
20 Association for the Advancement of Civil Equality, Sikkuy’s Report on Equality and Integration of the Arab Citizens in Israel 2000-2001, available at http://www.sikkuy.org.il/english/report2001/eng.htm [hereinafter Sikkuy Report].
21 Sikkuy Report supra n.20.
22 Wadi’a Awauda, The Five-Year Plan for Improving Arab Education: How It’s Holding Up in Reality, in Sikkuy Report, supra n.20.