Legislation and Jurisprudence in a Settler-Immigrant Society
 

ABSTRACT: There is a clear inclination on the part of all who are involved in the legal profession to regard the legal system, and especially the High Court of Justice, as an autonomous arena, acting according to universal criteria and some internal logic, disconnected from the interests of the ruling groups in the state. The central claim of this paper will be that the Israeli judiciary not only does not extend help and protection against the arbitrariness of the rule and does not protect civil and human rights, but also constitutes one of tools of repression. Furthermore, it is a central instrument in the reproduction of a hegemonic regime, particularly in the inter-ethnic conflict being waged between Jews and Arabs in this land and region. This refers to all levels of the judiciary, but especially to the High Court of Justice. These roles are not a result of hard-heartedness or arbitrariness, but rather from the judiciary being an integral part of a settler-immigrant society with its own logic and interests, which must clear for it a territorial living space. From this perspective, the judicial system and regime in Israel constitutes a case study that illustrates how a judicial system with a smug self-image of independence has refrained from self-critique, and has had difficulty in maintaining autonomy and universality, disconnected from the governing ideology in the society and from the ethnocentric practices customary within it.

     At a conference that was devoted to commemorating fifty years since the Declaration of the Universal Rights of Man, the former attorney general of Israel, Michael Ben-Yair, delivered remarks focused on Israel's human rights record since 1967 (Ben Yair 1998). In these remarks, Ben-Yair expressed remorse for a whole string of state crimes that were perpetrated against the Palestinians, in addition to the expropriation of their lands. He listed what any reasonable person could have listed: mass administrative detentions without trial, destruction of homes, sanctioning of expulsions and torture by the legislature and the courts, and even kidnapping from the territories of other states. "We will stand trial before history," shouted Ben-Yair, "for the serious injury to the human rights of the Palestinians." Ben-Yair's statements are indeed correct. However, the unreasonable aspect of these remarks was the more carefully concealed claim that the history of our human rights violations begins particularly in 1967. It cannot be that Mr. Ben Yair does not know what was done to the Arab citizens of Israel by all three branches of the Israeli state in the process of its establishment, as well as afterwards when a state of law and order had been established. I would not recall these statements at all if they did not symbolize a syndrome that can be termed the "'67 Syndrome."

     The historical-moral periodization of Israel focuses on the rupture that allegedly occurred following the results of the 1967 war. Before 1967, Israeli historiography constructs a moral and heroic society and state - a small people struggling for its right to exist against the entire world.1 Since 1967, Israel has become an empire of conquerors, oppressors and dispossessors. The traumatic change in government in 1977 and the rise of religious-political fundamentalism and of haredi neo-nationalism have also often been explained as a dialectical consequence of that same war. It is not that these claims are completely without basis, however they erase all the evils that occurred before 1967 and transforms this period to a sort of mythological past of a lost Eden in a historical vacuum. The future goals too are presented as an aspiration to restore that uncontaminated past - primarily uncontaminated by Arabs who were "absentees" hidden from sight by the mechanisms of the military government that were a previous incarnation of the fashionable "separation." In short, in this legal historiography there is apparently no direct connection between the distant past, the more recent past and the present. As if, as Emanuel Sivan (1989) has also claimed, we began the history of Zionist colonization and mobilized for its needs all the institutional mechanisms - including the legal mechanisms - only beginning in 1967. But a close objective examination of the past and its comparison with the present are likely to give us a number of indications about the future as well, without being too speculative. From this perspective, the most fascinating periodization is that of Chief Justice Aharon Barak. He divides the constitutional history of Israel into all that came before 1992, that is before the legislation of two additional basic laws,^[2]  "Human Dignity and Freedom" and "Freedom of Occupation," and what has occurred following the acceptance of these laws.

     There is a clear inclination on the part of all who are involved in the legal institutional arena - judges, legal scholars, commentators, media and the general populace - to regard the legal system, and especially the High Court of Justice, as an autonomous arena, acting according to universal criteria and some internal logic, disconnected from the interests of the ruling groups in the state.^[3]  This approach is anchored, of course, in the idealist doctrine of separation of powers and the independence of the branches of government. This is assumed to automatically transform into a system of checks and balances critiquing and balancing one another in their defense of the citizen and her rights, human dignity and freedom, and weak and minority groups. This impression has intensified the more that the Israeli High Court of Justice has become activist in different areas. It has taken upon itself the roles of checking the "reasonableness" of the actions of the other branches of government and of recognition of the standing of public petitioners. Moreover, it has transformed into a kind of constitutional court that can not only interpret laws, but even intervene in parliamentary legislation and nullify laws which appear to be against the "spirit" of the Basic Laws or of "Enlightenment." The content and quality of these criteria have never been defined or clarified, but their real content can be discerned by anyone who would examine the results in various rulings.

     The central claim of this essay will be that the Israeli judiciary not only does not extend help and protection against the arbitrariness of the government and does not protect civil and human rights, but also constitutes one of the most sophisticated tools of repression. Furthermore, it is a central tool in the reproduction of a hegemonic regime, particularly in the inter-ethnic conflict being waged in this land and region, and this is likely to continue in the future as well. This refers to all levels of the judiciary, but especially to the High Court of Justice. These roles are not a result of hard-heartedness or arbitrariness, but rather from the judiciary being an integral part of a settler-immigrant society with its own logic and interests, which must clear for itself a territorial living space. From this perspective, the judicial system and regime in Israel constitutes a fascinating case study that illustrates how a judicial system with a smug self-image of independence has refrained from self-critique, and has had difficulty in maintaining autonomy and universality, disconnected from the governing ideology in the society and from the ethnocentric practices customary within it.

     But before these topics will be dealt with in detail, it is necessary to establish an axiom. This is an axiom upon which most of the arguments in this essay are built, and it is desirable that this will be overt rather than covert, as is the norm. The fundamental assumption is that one of the central functions of a court in general, and of a High Court of Justice in particular, is to extend assistance and protection to minorities and to the politically, socially, economically, or otherwise, weak, within the framework of the law and its interpretation. The court should do at least this much, and as far as possible even more than this - without making distinctions between minorities as to who is entitled to more or less assistance. This is part of a more general approach that says that the goodness and quality of any government or regime is measured according to its relations to the weak and to minorities. These relations should guarantee at least formal equality before the law and the judiciary, and protection against the arbitrariness of the majority, the state and its messengers. We have no more sensitive litmus test demonstrating the character of the Israeli regime than the topics in which the High Court of Justice chooses to intervene or not, and the corresponding results. In this regard, there is no minority in Israel that is more deprived than the Arab minority in Israel, and no population more oppressed within the control system of the Israeli state than the population of the occupied territories following the 1967 war.

     The lack of interest that the courts reveal in the fate of ethnic and national minorities is even more noticeable against the background of a number of rulings handed down in the past few years in favor of Jewish minorities. These rulings were considered courageous and controversial, and even aroused the ire of important sectors of Israeli society, such as orthodox Jews, and brought them into conflict with the courts. Thus, in the case of women's rights, army authorities were obligated to invite women candidates to fighter pilot's courses; the prevention of women and Reform Jews to religious councils was prohibited; and affirmative action in the form of quotas for female appointments to management and directorate positions in government and public companies was mandated. Other liberal rulings came on the issues of equal rights for homosexuals and de facto recognition of Reform, Conservative and single-sex marriages.

     In comparison with this judicial activism, the radical restraint - to put it mildly - that the court imposes upon itself on issues regarding the rights of Arab citizens of Israel and the Palestinians in the occupied territories is even more noticeable. For example, just recently the District Court in Beersheba affirmed the ruling of the Magistrates' Court obligating the expulsion of thousands of Bedouins from their homes and land in Ramat Hovav after they had been banished and resettled there by the military government itself fifty years earlier. The Bedouins were unsuccessful in obtaining and presenting before the court documentation that could have been found only in the archives of the military government or of the state itself, if such population transfers were even documented during those stormy times. Sometimes the impression is given that the courts earn their degrees of freedom to criticize the authorities and to hand down enlightened and courageous rulings relating to the Jewish citizens of the state, in exchange for accepting the ethnocentric rules of the game, and for ignoring the human rights of the non-Jews and their communities.

     There would be no need to relate here to the issues of the occupied territories themselves if it were not for one of the seemingly outstanding and enlightened decisions of the High Court of Justice, which, in practice, is one of its most wretched decisions. This is the decision that applied the jurisdiction of the court to the activities of the Israeli authorities in those territories and granted the right to standing and to petition to the residents under limited circumstances. In practice, with this ruling, the High Court granted legitimacy to the essential situation of continuing occupation and to its appearance as an "enlightened occupation," without the ability (and perhaps without the desire) to grant real assistance to the residents. Moreover, this ruling also legitimizes the conspicuous violation of international treaties to which Israel is a signatory.

The Military Government - Out of Bounds for the High Court

     The central argument of this essay is that the High Court of Justice, through its actions and omissions, was one of the central mechanisms in the management of the Arab (or Palestinian) - Israeli conflict. The High Court of Justice defended the Jewish ethno-national interest, as this was presented and constructed by the government, the regime and Zionist ideology. With this the court filled a function no less central and decisive than the settlers, the army, the bureaucracy and the rest of the governmental agencies termed by the legislature itself as "security and intelligence agencies." The court did this by commission and by omission, but primarily through the use of a very simple, even simplistic, technique that was astonishingly effective: this technique was the manner in which the term "security" was used and interpreted. First, any time that the state would justify its action or inaction under the aegis of "security needs" or "security reasons" - the court tended to accept it in nearly all the cases without any investigation of the instance (Barzilai, 1998). Second, the term "security" was almost never examined in the context of the presentation of the petition, and the court granted carte blanche, without appeal or restriction, the monopoly on determination of "security needs" to the state and the executive branch. This situation screams to the heavens, particularly given the fact that the court sees itself as expert and as authorized to rule on every area of the life of an individual or of the collectivity - including economics and banking, government arrangements, medicine and biology, religion, education, and media. The sole exception is of the areas in which the state claims that they are connected to the security of the state. The court can utilize independent expert witnesses in any area, but in the area of security the almost exclusive recognized expert is the body that the court is supposed to be suspicious of from the start - the other state authorities, and in particular the army and the security agencies. Third, in many cases the court acquiesces to the demand of the state to present the testimony of government experts in camera. This secrecy brings about the situation in which the testimony and evidence is kept from the legal representative of the side standing against the state and its authorities. One has to assume that even in cases where the judges are acting in good faith, surely the principle that grants the state exclusivity over "security information" opens an enormous entrance for injustices that highlight more than the norm the gap between judgment and the feeling of natural justice.

     The most famous case, the most exceptional - but which strengthens the general rule - is the Eilon Moreh affair. Here, expropriation writs were given to the mukhtar^[4]  of the village Rujaib, in order to establish a Jewish settlement near Nablus whose necessity was excused as usual as "for reasons of security". However, the land owner appealed to the High Court of Justice and the court accepted the petition and ruled that it was not convinced that reasons of security were what caused the decision to expropriate private land from its owner.^[5]  In practice, though, there was in this case no choice left to the court but to reject the claim of "security reasons" for two reasons: a) among the respondents were the settlers themselves who declared that they were not settling just for security reasons, but primarily "by right of the return of Israel to its land"; and b) the security authorities of the state itself gave conflicting evaluations. While the Chief of Staff (Rafael Eitan) testified that the expropriation was for security needs, the Defense Minister (Ezer Weizmann) and the previous Chief of Staff (Haim Bar-Lev) rejected the security necessity of establishing the settlement. After the ruling, the settlement was established on nearby lands that were not registered as private or more accurately their title was never officially determined. After thirty years of accepting claims of "security reasons" without questioning or examination, the High Court in this case deviated for the first time, and almost for the last time, from its custom. But even in the case of Eilon Moreh there was no in-depth examination or definition of the situations in which a settlement could be considered "for security needs", but rather, given the conflicting testimony, doubts were raised as to the validity of the claim.

     In the future, the state would take care not to place the court and itself in such embarrassing situations. Thus, the state constituted in the territories, by force of Order 172 of the Military Government, appeals committees for land expropriation orders. Menachem Hofnung declares that "the establishment of a quasi-judicial tribunal was designed so as to prevent the intervention of the High Court of Justice. The High Court's power to grant relief against state authorities is conditional upon the absence of alternative relief being available to the petitioner" (Hofnung 1996:234). And indeed when an additional petition was presented to the High Court, it was rejected on precisely these grounds.^[6]  It should be noted that the High Court did not relate at all to the absolute prohibition in international treaties against creation of irreversible permanent "facts on the ground" and against transfers of population from the occupying power to the territories that were occupied. This situation opens a possible portal into the unforeseeable future to interpret the legal situations of all the settlements in the territories that were occupied by Israel in the 1967 war. From a legal perspective, as "temporary settlements" that can be disbanded with a change in the "security situation,"^[7]  Israeli law was not applied to them. However, the court-protected looting began, as mentioned, much earlier. After the 1948 war, and during the 1950's, the largest expropriation and nationalization of land was carried out under the aegis and with the help of the military government. At its conclusion 93% of the land in the country had been transferred to the ownership of the Israel Lands Authority and to the lease of the Jewish National Fund. On these lands hundreds of Jewish settlements were established.^[8]  The lands were not expropriated, as is commonly thought, just from Palestinians who were uprooted from the territories that the military forces of the state conquered and became refugees. The lands were expropriated also from the Arabs within the boundaries of the state after the battles who became citizens, both the "present absentees" who were not on their lands at the time of the census^[9]  - and the Arabs that remained in their villages and their houses. Dozens of petitions presented by Arab citizens were rejected by the High Court one after the other simply because the representatives of the government argued "security reasons".^[10]  A well-known case, though not the only one, is that of the Maronite villages Ikrit and Bir'm that were asked by the military authorities during the battles of 1948 to uproot themselves temporarily. After the end of the fighting the authorities refused to allow them to return. When they turned to the High Court, it ruled that they must be returned to their homes, subject to security considerations, which as is known, has prevented their return even until today.

     A lesser known case that demonstrates well the symbiosis between the executive, legislative and judicial authorities is the case of the residents of Al-Jalme who were expelled from their village on March 2, 1950 by order of the Military Governor and were transferred to the village Jatt. Their lands were immediately given over to Kibbutz Lehavot Haviva. In the first stage, the residents of Al-Jalme turned with a complaint to the Defense Minister and when they did not receive any answer they petitioned the High Court. The state did not bother to respond, not even to claim "security reasons" as usual. Instead the state responded in another arena by passing in the Knesset the "Law of Land Purchases (Authorizing Actions and Compensation) - 1952" which gave ex post facto legality to all the prior land expropriations, even those without justification. The state's representative before the High Court, Miriam Ben-Porat, did not try to defend the expulsion, but rather announced that the kibbutz was already in possession of those lands and was not willing to withdraw of its own accord, and that according to the new law it was not possible to remove them. Judge Olshen was left to remark that "the feeling of elemental justice rises up at hearing the claim...but now when there is a need to rectify the wrong for the petitioners, the law stands as an obstacle in their way."^[11]

     The right to property has always been considered sacred in Israeli legislation and jurisprudence. But the traditional Arab holding of lands^[12]  was not recognized as ownership but as a situation that needed to be put into order - in other words - in most cases, expropriation. Had the legislature and the courts wanted to make order only on land matters - as mentioned by Alexander Kedar (1998) in his detailed and fascinating article -

     "there was no need to change the statute of limitations in clause 78 of the Lands Law, nor to reduce the evidentiary tools available to the (the Arab) holders of the lands. In the framework of ordering the lands it was possible to order the rights to the land, to formally register the land in the name of the state, but at the same time to settle the situation of the holders: to grant them leasing rights for generations on the lands that they held and thereby to carry out the Law of Land Leasing (Emergency Order) - 1959. This arrangement which was even required by law was never carried out in any meaningful way. The desire to redeem the lands (according to the Zionist ethos) was preferred over the legal logic of searching for order."

     In practice, as long as the Military Government was in existence, about 2/3 of the Arab citizens of the state were removed from the jurisdiction of the civil courts and their matters were handed over to military courts. There, even the appearance of equal justice was not maintained, while the High Court declared itself prohibited to intervene in their affairs, which had been constructed as issues of "the security of the state." In this way administrative detentions, confinements, expulsions, land confiscation for army needs ("live fire areas") were carried out under the legal "bubble" of emergency decrees that remained in effect from the British colonial era. In this fashion it was possible to turn the law into an additional arm of the state whose essence was the "Judaization" of all areas of the state as a supplement to sovereign control, through criminalizing the Arab minority. Thus Alina Korn found that about 95% of the convictions on crimes against the emergency decrees were administrative crimes by Arab citizens, such as going out to fields to work them, going to markets or workplaces outside the areas defined by the Military Government or without its authorization.^[13]

Expropriation of the Occupied Territories

     The Military Government was abolished in 1966, when there was already almost nothing left to expropriate from the land property of the Arabs in Israel. A year later the territorial conflict between the Israeli state and the Palestinians was reopened with the occupation of the territories in the 1967 war. Once again legislation and adjudication were part of the means of expropriation and the territorial expansion of the settler-immigrant society, in whose eyes territories that had been occupied were seen more and more as frontier areas that were reopened to occupation or "redemption."^[14]

      According to clause 55 of the Hague Convention from 1907, the occupying power will only be the temporary manager and beneficiary of land and other properties in the occupied territories, and is not permitted to create permanent "facts on the ground" which will remain in the area after the occupation. Thus, for example in the affair of confiscation of the lands of Beit-El settlement, the High Court ruled that it was permitted to confiscate private land with compensation (payment of leasing fees) for the purpose of establishing "civilian settlements necessary for security purposes."^[15]  So, the establishment of a civilian settlement turned into a "security" action without the High Court ever entering into the difficult meaning of its ruling. The issue of how a civilian settlement could have a "security character" was never discussed or weighed. It should be noted in this context that many security experts, whom the High Court has never consulted for the purpose of clarifying this issue, think that at least some of the Jewish settlements in the occupied territories are actually a military burden and danger, both tactically and strategically. It is appropriate also to mention that these territories - except for the metropolitan area of East Jerusalem and the Syrian Heights, were not annexed to Israel and thereby have remained as "administered territories", different only semantically from occupied territories. Israel indeed always rejected the definition of the territories as "occupied" with the claim that they were never under the sovereignty of another state (since the annexation of the West Bank by Jordan was never recognized by the international community except for Britain and Pakistan), and because according to their claim, they came under their control during a just defensive war. At the same time, Israel took upon itself to behave in the territories according to the rules of international law, including the 4th Geneva Convention from 1949. However, most experts in the field of international law do not accept this approach. They are divided between seeing Israel as an occupying power and seeing Israel as a "trustee-occupant" controlling the territory until the dormant sovereignty of the local residents, constituting a distinct and conscious socio-political entity, will develop into self-rule, which is indeed happening before our eyes.^[16]

      It must be remembered that one of the reasons of all the governments of Israel for not annexing all the territories of colonial Palestine was the desire to avoid granting citizenship and the accompanying rights to the Arab residents, and the transformation of Israel to a de facto binational state. Political convenience dictated their subordination to military government laws, army decrees and military justice. At the same time, Israeli law and justice was applied to the Jewish residents and their settlements, as well as to the local Jewish authorities, an arrangement which is an extremely original Israeli invention, providing a sort of personal sovereignty that accompanies each settler wherever he goes. Few have expressed themselves on this, but it was a kind of selective annexation of the territories without granting the Palestinian residents citizenship. It should also be mentioned that though some of the settlement processes in the occupied territories came as initiatives of social-political movements (such as Gush Emunim), if the state and its various agents had not wanted these settlers and settlements, there would not be a single Jewish settler in the occupied territories today. The state granted and continues to grant them protection by means of its military and police forces, land allocations and direct and indirect subsidies (including massive allocations in infrastructure).

      However, in order to avoid unforeseen judicial embarrassments, the Israel occupying rule began to systematically declare unsettled lands, the lion's share of which were under traditional Arab ownership, as state lands. It should be remembered that the legal reality in the West Bank at the time of occupation was that between 60-70% of the territory was unregistered in the land registry. Despite this, all these lands were considered by all previous regimes (Ottoman, British, and Jordanian) as belonging to individuals, families or villages according to the traditional custom and maintenance.^[17]  Confiscation of these territories was done by means of the old familiar technique from the days of the Military Government: confiscation for military needs, declaration of natural reserves, restriction to public use, establishment of military camps and the closing of live-fire areas. According to the measurements of Meron Benvenisti (1986:34), already by 1986, 2.8 out of 5.5 million dunums of land, that is, 52% of all West Bank land, had been transferred to Israeli "state ownership".^[18]  It is a "given" that Jewish settlement upon these lands was made possible without fear of the High Court.

Constitutional Revolution?

      But it seems that the codification and ideological apex was reached in the 1990's. In March 1992, two well-known Basic Laws were legislated: "Basic Law: Human Dignity and Freedom" and "Basic Law: Freedom of Occupation." The President of the Supreme Court, Aharon Barak, has frequently claimed in recent years that beginning in 1992, Israel has been undergoing a constitutional revolution, while his unstated reference is to the democratization of the Israeli regime. In one of his latest and least ambiguous expressions, after periodizing the history of Israeli law into four eras, Barak writes: "At the foundation of this revolution stands the human rights that were given constitutional standing above the regular laws. Israel changed from a parliamentary democracy to a constitutional democracy. At the head of the structure stands the constitution. A law of the Knesset cannot contradict or abolish it.^[19]  The court is authorized to declare the law unconstitutional. With the legislation of two Basic Laws regarding human rights constitutionalization of the Israeli law occurred"(Barak 1998:39).

      This process of constitutionalization certainly sounds like a positive trend, particularly since within these two Basic Laws there are indeed some most welcome clauses. However, Ruth Gavison (1998:101), for example, opposes the continued legislation of additional Basic Laws. Her reasoning is that given the internal political power relations of the Israeli state, additional Basic Laws will only strengthen the status quo ante. This would mean not only perpetuating the Orthodox monopoly on personal status issues, but also the continued granting of emergency authority to the army and the various "security agencies", as well as the continued absence of civil equality in the state.^[20]  Indeed anyone who followed the process of legislating these two Basic Laws knows that not only were they accepted as a compromise between contradictory ideological approaches, but also, as Gavison hints, they came to reproduce the existing power structure and social order. Thus, each of these Basic Laws declares that its purpose is to "anchor in a Basic Law the values of the State of Israel as a Jewish and democratic state." I won't say anything new when I say that according to any definition of "Judaism" and "democracy," these two terms do not go with each other; just the opposite, they are mutually exclusive.^[21]

      The term "Jewish state," whose definition the law does not elaborate, has several interpretations, beginning with the desire to approach theocracy,^[22]  as per Menachem Elon, and through the minimalist-demographic interpretation of Gavison.^[23]  Now comes the Basic Law: Human Dignity and Freedom and adds the declarative and ideological dimension to the Laws of Return and Citizenship that were instrumental in their foundation. Before us is one of the most instructive examples that I know of constitutionalization in the guise of progressive liberalism perpetuating basic discrimination on the basis of ideology. This is because between the two polar interpretations of the term "Jewish" are located interpretations such as those of Judges Barak or Haim Cohen. They see in this instruction of the law a recommendation for a selective adoption from the "Jewish heritage" those values and norms which square with what in western culture is considered universal, egalitarian, liberal and democratic. The trouble is, such interpretation seemingly empties the determination of Israel as a "Jewish state" from all practical content, and is certainly opposed to the intent of the legislature. It is possible to know what the intent of the legislature was since in the process of legislation there were MK's who suggested adding to the phrase "Jewish state" also "and the state of its citizens",^[24]  suggestions that were outright rejected by most of the MK's. From here we see that the intent of the legislature was that the interpretation of the "Jewishness of the state" is at least like the instruction of the term "Jewish" in the Laws of Return and Citizenship, or in their spirit. That is, closer to the polar interpretations either of Ruth Gavison on the one hand or of Menachem Elon on the other. There is no need to say that these two laws are among the most problematic, ethnocentric and discriminatory in the Israeli codex. Recently, a radicalization and further narrowing began also in interpreting "Judaism" which had been relatively liberal, toward accepting the Orthodox interpretation of the term "Jew". In this instance, the Knesset passed a law requiring members of religious councils to accept the authority of the Chief Rabbis. It is uncertain that even Menachem Elon would wish to see the primacy of "the Jewish state" over "the democratic state", as the legislators are designing it in the framework of the "constitutional revolution" that Judge Barak has declared.^[25]

      There is great importance to research of the law, the constitution and their interpretation. But the analysis and research of the legal field cannot be limited to this. Also, research of judicial ruling, in and of itself, without understanding the ideological background and the given power relations in society, is done within a judicial "bubble" that is generally liable to cause idealization of the state and ignoring, deliberately or not, its darker corners. Indeed, I did not find in any research or article on the "constitutional revolution", the admission that even after the "revolution," rulings continue to be handed down which blatantly contradict any standard of "human dignity and freedom", in all related to the areas defined as "security" or to the ethnocentric character of the state. Even after the "constitutional revolution" detentions without trial, torture, expulsions and collective punishments continue, just as the process of annexation and settlement of the occupied territories continues. Apparently the "constitutional revolution" has not yet reached these areas.

      This seems to be because just as the legislator is part of the national ethos and the political and social regime, so too the judicial system and its judges are part of this system, a phenomenon that David Kretzmer (1990) has pointed out. The independent appearance of this system just strengthened its degree of freedom of action as a mechanism of ethnic repression. The boundaries of the law are not delineated somewhere between the walls of the court, but rather are completely open and permeable to ideologies and to political, national and other interest groups. And perhaps justifiably so, since if knowledge is power, legislation and interpretation through adjudication is the ultimate power. Thus, if for example, we examine the meaning of the "Basic Law: Human Dignity and Freedom" in its wider context, we can arrive with no difficulty at the conclusion that the title of this Basic Law is insufficient, and ought to be "Dignity and Freedom of the Jewish Person".^[26]  Moreover, missing from this law and from any Basic or other law, is the right of the person to be, as a citizen, a partner to the common symbolic goods - flag, state symbol, anthem, common holidays and days of mourning. In short, the right to a common civil religion or alternatively to full cultural autonomy. And so, the new Basic Laws and the "constitutional revolution" perpetuate ethnic discrimination into the following generations as well.

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     and Peace in the Israeli Mind. Jerusalem: The Israel Democracy Institute [Hebrew].

^{[[1]  ]} Even the judicial decisions in the Kfar Qassem massacre affair were thrown onto judicial history's trash heap of forgetting. Even the term "black flag," that waved, as per Benjamin Halevi, above those orders termed by him as "unambiguously illegal" was never used, and this remained a ruling irrelevant to any real situation. Apparently, in the eyes of Israeli society, all the orders that have ever been given since then have at least not been "unambiguously illegal." Return to Text

^[2]  Because the Israeli state wanted to preserve its hegemony over its citizens, Israel never drafted a complete constitution. Instead, was decided that a constitution would gradually established through the drafting of "basic laws" which would eventually form at the end of the process a constitution. Return to Text

^[3]  The only two institutions that throughout the years have consistently earned the nearly absolute trust of the public are the army and the Supreme Court. It would be interesting to do an in-depth sociological-cultural analysis of the meaning of this juxtaposition, whether there is indeed any connection between the two. See Yaar-Yuchtman and Peres (1998). Return to Text

^[4]  The traditional village clerk. Return to Text

^[5]  High Court of Justice 390/79, Dawiqat et al. v Government of Israel et al. See also Negbi (1995:21-57). Return to Text

^[6]  High Court of Justice 285/81,al-Nazar et al. v Commander of Judea and Samaria. Return to Text

^[7]  For example establishing a Palestinian state and a situation of full and stable peace between Israel and Palestine. Return to Text

^[8]  The state settled Jewish immigrants in old and new areas of settlement in place of the Arabs. In 1945 there were 293 Jewish settlements in Palestine-Eretz Israel, among them 27 cities or urban neighborhoods. Following the 1961 census there were 771 Jewish settlements, among them 63 urban settlements. In comparison, 356 Arab villages and cities and parts of cities had been uprooted, such as Jaffa, Lydda and Ramle. About 3,250,000 dunums (an acre is about 4.2 dunum) of land that had been under Arab ownership were transferred to the Custodian of Absentee Property. See Kimmerling (1983:122-123). Some of the Arab villages were completely and systematically destroyed to prevent returning to them. Settlements and neighborhoods that were not destroyed were resettled by Jews, not always new immigrants, but often veteran members of society and army veterans. This was the beginning of the immigration which would change the demographic, and later the cultural and political, makeup of the state. Return to Text

^[9]  Findings from among about 75 villages of which 65 were completely destroyed, such as Ikrit and Bir'm. About 20 villages were abandoned as a result of expulsions during the war while the residents of about 15 villages were expelled after the war, for example Majdel. A number of other villages were evacuated fully or partly at the initiative of their residents and they were resettled in other villages. See Kimmerling (1977). Return to Text

^[10]  See for example, High Court of Justice 197/52, Ismail v Chief of Police, in which it was ruled that "the order that was made by the respondent (the military governor) was designed to guarantee the public peace and to establish the public order. It is not for us (the High Court justices) to express an opinion if the goal will indeed be achieved by this. This is given to the absolute judgement of the respondent...we do not see any justification to intervene in the matter." So too 46/50 Tal Ayube v Minister of Defense. High Court of Justice 126/69 gives a free hand in handing out expulsion orders to the Military Commander, and determines that the court has no say in the matter. In a number of cases (46/50 or 111/53) the judges rule that secret information that could endanger state security should not be brought before the court. Return to Text

^[11]  High Court of Justice 36/52 al-Daf et al. v Minister of Defense, p. 751. Return to Text

^[12]  In local tradition, which was recognized both by Ottoman law and by British colonial law, the lands "belonged to God" or to the Sultan (the representative of God). Individuals, families and villages only had the right to maintain the land. Private ownership of the land was an unrecognized concept, though starting in 1858 the Ottoman authorities and later the British tried without much success to parcel out and register lands and to order them in state holdings books. With the end of the British rule in 1948 only about 20% of the lands of Palestine-Eretz Israel were ordered, largely in Jewish ownership or disputed lands. Return to Text

^[13]  A. Korn, "Crime, Political Status and Law Enforcement: The Arab Minority in Israel in the Period of the Military Government (1948-1966)", Ph.D. thesis. Jerusalem: Hebrew University, 1997. Return to Text

^[14]  See Baruch Kimmerling, Zionism and Territory: The Socio-Territorial Dimensions of Zionist Politics. Berkeley: Institute of International Studies, University of California, 1983. Return to Text

^[15]  H.C. 606/78 Ayyub v. Minister of Defense. Return to Text

^[16]  On this controversy see Shamgar (1980). In comparison, see Gerson (1978 and 1979). It should be remembered that Meir Shamgar was the Chief Military Counsel when the rules of military justice in the territories were put together, and afterwards was a Supreme Court Justice who was supposed to critique these rules. Return to Text

^[17]  Particularly according to clause 78 of the Ottoman Lands Law which allowed the acquisition of property rights on land to anyone who succeeded in proving 10 years of working and maintaining the land. The British rule adopted these principles but the Israeli regime made the evidentiary demands to prove maintenance stricter and stricter until the High Court ruling 520/89 State of Israel v. Abdallah Asad Shibli in 1992 canceled all maintenance rights that the village Shibli had on its lands since 1944 according to the principle "and the land shall not be sold forever", and turned all the unregistered and non-ordered lands into property of the Israel Lands Authority. Return to Text

^[18]  It is not clear from study of international law to which state this refers: the occupying power, Jordan, the British mandatory government, or the potential state of the local residents. Return to Text

^[19]  And indeed the legislature when faced with such an activist Supreme Court, that became a kind of alternative legislature, responded to the challenge with a series of laws termed in political lingo "High Court bypass laws." In addition to political attacks to which the High Court exposed itself with adopting for itself this judicial activism, it exposed itself also to academic criticism and to attacks from the Bar Association. Lately there has been a recognizable retreat by the High Court from this activist position. Return to Text

^[20]  Thus for example in the affair known as the "Katzir Affair." The couple Adel and Iman Kadan from Baka al-Garbiya requested to purchase a plot of land for the purpose of building their home in the settlement of Katzir in Wadi Ara, south of Hadera. The council clerk of Tel-Eiron refused to sell them the land since the official policy prohibits selling land to non Jews. The petition was filed in the name of the Association for Civil Rights in Israel. The President of the Supreme Court, Aharon Barak, tried to avoid ruling, similar to other "sensitive" cases, and suggested to the sides to reach an out of court settlement (Haaretz, Feb. 18, 1998), but as of the writing of this essay, some three years after the filing of the petition, no settlement has been reached yet no ruling has been made either. Return to Text

^[21]  See the symposium on "A Jewish and Democratic State", Legal Studies (Iyunei Mishpat), 19, 1995. See also Kimmerling (1999). Return to Text

^[22]  Elon claims that it is not accidental that the wording of the law places the Jewishness of the state before its democratic character, since any threat of conflict or contradiction would be resolved by giving preference to the "Jewishness" (though Elon does not elaborate on what this "Jewishness" is). Return to Text

^[23]  Its essence is that Israel is a state of Jews or that has a quasi-constitutionally protected Jewish majority. But there is no answer in this for a situation in which for example "non-Jews" would become the majority through natural increase and would want to democratically change the name, symbols and laws of the state. Return to Text

^[24]  That is, inclusion of Arab citizens as having equal rights to the common goods of the state. Return to Text

^[25]  And perhaps here, in a parenthetical comment, I will dare to express astonishment - without injuring freedom of occupation - that judges continue with academic activity and publish learned studies on the processes of judging, legislating and interpreting in which they themselves have played an active role. Is there not at least an appearance of conflict of interests here? Return to Text

^[26]  And perhaps the rich or the property owner. See the sharp and ironic critique by Menachem Mautner (1998) on these two Basic Laws which are "clear laws of the 18th century liberalism sort, defending civil rights rather than political or social rights." Mautner lists a series of rights missing from these laws such as the right to receive health services, the right to housing, the right to support for the disabled, the right to education, the right to a pension, the right to work, the right to unionize, and the right to strike. 20 Legislation and Adjudication in Israel

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