The Israeli-Palestinian conflict and the occupation continue, with no solution in sight. Furthermore, tremendous forces are working to strengthen the occupation, and there are even those who profit from it.
One of the characteristics of those working to strengthen the occupation is their disregard for democracy. The two go together; therefore, the shrinking democratic space is a by-product of the continuation of the occupation. As early as 1967, Professor Yeshayahu Leibowitz saw that this process was inevitable, and in 2019, Professor Binyamin Neuburger, an expert on Israeli democracy, concurred: “At this time, the greatest danger to the integrity of Israeli democracy is the continuation of the control over the West Bank.”
In contrast to other regimes, citizens in a democracy must know its values, understand its essence, be involved in its processes, and defend it against attempts to limit it. A democratic regime is based on two components: The formal-structural component includes impartial, free elections; the principle of majority decision; the separation of the executive, legislative, and judicial authorities; an independent and honest legal system; the preservation of law; transparency; government responsibility for its citizens; and a very low level of state corruption. The value-cultural component includes freedom of expression and organization, the free flow of information, equality before the law, respect for human and minority rights, and pluralism. The Israeli Declaration of Independence is an iconic
document which promised:
The state of Israel … will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace
as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion,
race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions;
and it will be faithful to the principles of the Charter of the United Nations….
Even if the reality of the first decades of the state greatly deviated from this promise, it still provided a direction and a compass for the development of Israeli society.
However, Israel’s control over more than 2.5 million Palestinians in the West Bank, almost 2 million in the Gaza Strip and more than 300,000 in Jerusalem challenges its democratic character. The native Palestinian population in the Occupied Palestinian Territory (OPT) has been living without human rights and freedom for decades, and this undemocratic reality in the OPT inevitably spills over into Israel.
The most appropriate concept to describe the current reality between the Jordan River and the Mediterranean Sea after more than 50 years of occupation is “occupartheid” — a combination of occupation and apartheid. A hierarchy of five categories of people live within this framework: At the top are the settlers, who receive privileges that the majority of Israelis are not entitled to. Most of the settlements are considered national priority areas, and settlers receive housing, mortgage, and tax benefits, among others. Throughout the years, with some variations at different times, they have received favorable treatment by most of the governments in various aspects of life in comparison with other Israeli citizens.
In the second category are Jewish citizens of the state of Israel who live within the Green Line. They are treated according to Israeli law.
In the third category are Palestinian citizens of Israel, who constitute 20 percent of the population. They suffer from a lack of equality, including institutional and even legal discrimination. This inequality has existed since the first days of the state, when they were under a military regime which was canceled only in 1966, and much of their land was expropriated. Although their economic situation has improved significantly over time and the process of their integration has grown, they are still institutionally discriminated against in everything related to budgeting and development, have fewer opportunities, and are subject to cultural discrimination. In addition, in recent years a significant amount of discriminatory laws were passed against this minority — for example, the Nakba Law, the Admission Committees Law, the Citizenship Law, and the Nation-State Law. The right and its supporters consider them disloyal citizens. Their delegitimization has been so successful that the majority of Israeli political parties do not consider the Arab parties legitimate coalition partners. The incitement against them by the right-wing leadership, including Prime Minister Binyamin Netanyahu, has become a regular and consistent norm.
In the fourth category are the Palestinian residents of East Jerusalem who, after the annexation in 1967, received the status of permanent residents, which formally gives them the same rights as Israeli citizens — except for the right to vote in Knesset elections — but they suffer from institutional discrimination and neglect which can be easily observed in their neighborhoods in every aspect of life.
At the bottom are the Palestinian residents of the OPT outside of Jerusalem, who are accorded no civil or human rights by the Israeli government. Thus, the West Bank is populated by two groups that live side by side under two separate legal systems based solely on their national origin. The Palestinian population is under military law, and all aspects of their lives are subject to military orders, including work permits, detention, arrest, the unification and separation of families, curfew, the courts, entry into to the state of Israel, house demolitions, land expropriation, etc. Jewish settlers, on the other hand, are treated like masters with privileged rights.
In sum, since equality is one of the fundamental principles of democracy, this inequality signals a very serious flaw that may even call into question the very existence of democracy.
Damage Caused by the Courts
One of the central areas in which Israeli democracy has been damaged is the judicial system, which is one of the three pillars of a democratic state. Israeli judges are frequently asked to judge cases concerning the behavior of the state, organizations in the third sector, and even individuals in the OPT, including the construction of settlements on private Palestinian land, house demolitions, and cases of torture or wounding and killing. For many years, the High Court of Justice (HJC) has been viewed as a left-wing authority which advances universal values at the expense of the security of Jewish citizens. A review of HJC decisions over the course of the occupation, however, shows that this image is light years away from the reality. For example, the HJC has abstained from passing judgment on the legality the settlements in accordance with Article 44/49 (6) of the Geneva Convention. It also chooses not to defend the human rights of the Palestinian residents of the OPT in accordance with international law.
The result is the legalization of the occupation. The HJC has repeatedly ruled in favor of the state and has almost always backed the actions of the government and the army, even when they violated international law. The HJC almost always accepts the security arguments of the government, which are frequently political arguments in disguise, and has avoided any serious examination of the reality on the other side of the Green Line.
Damage to Pluralism and Freedom of Expression
One of the harshest blows to the essence of democracy is the attempt to impose totalitarian thinking which contradicts its central principles: pluralism and freedom of expression. This process is inevitable, because if the government aims to continue the conflict and the occupation, it must continue its systematic and regular institutional efforts to inculcate in all members of Jewish society the narrative that supports the occupation and block the flow of information that contradicts this narrative. To do so, the leaders of the right and even the center try to block the legitimate freedom of expression by people on the left by delegitimizing them. This process began at the end of the 1990s and grew in the 2000s until regulations that prevent freedom of expression and the free flow of information have entered not only the political systems but also the culture and educational system. In addition, the right exploits its power to try to block information circulated by human rights organizations that document the evil deeds being carried out by the security forces, the government, the settlers, and various right-wing organizations, including the unnecessary killing of Palestinians, illegal arrests, collective punishment, and more.
In this reality, regular citizens as well as those who hold government positions are afraid to express opinions that contradict the hegemonic narrative, lest they be punished socially and economically. Not many are ready to pay the heavy personal price extorted for expressing independent opinions, while the majority chose conformity and even self-censorship.
Disobeying the Law
The rule of law is another basic principle of a democratic regime. Disobeying the law and not applying it equally constitutes a deadly blow to democracy. Disregard for the law, particularly by state institutions, leads to anarchy. The executive branch of the state is violating the basic principle of democracy and is violating state laws. The desire to hold onto and settle in the OPT has created a reality where the state of Israel is selective in applying state laws and is in violation of international law. The takeover of Palestinian lands is a paradigm example of the state violating the law and engaging in deceit.
Taking Over Palestinian Lands
Immediately after 1967, settlements in the OPT were allowed only for military needs. Over time, however, Israel has exploited security as an excuse to approve many civilian communities. Between 1967 and 2014, 1,150 military orders were signed, resulting in a land grab of over 100,000 dunams, most of it land privately owned by West Bank Palestinians. Of this land, 47% directly serves the needs of the settler population and not those of the army. Furthermore, 45% of the land not used by the settlers is also not used by the army. In other words, only about one-quarter of the areas defined as being for military purposes is actually used in that way.
These legal tricks are carried out in contravention of international law defining the rights and obligations of a state that controls an occupied territory, which determines that control of such land is by definition temporary and only for urgent military purposes and is ultimately to be returned to its owners. Israel, however, has created its own legal reality and has invented a number of illegal practices to justify it. One is the process whereby military offices brought witnesses before the HJC to say that areas were needed for military reasons when in fact they were used for civilian settlements. The HJC generally accepted the arguments, except in the case of Elon Moreh, where a settler admitted to the court that his group had settled in the area because of “God’s law” and not for security reasons. This case in 1979 reduced dramatically this practice.
Prof. David Kretschmer and investigative journalist Gershom Gorenberg examined the subject in 2015. Their research found that the authorities tended to blur the political background that motivated their activities, hid relevant facts from the courts, and invented false legal arguments in order to manipulate the court to get the desired results. The authorities consistently lied to the court, and only in isolated incidences did the HJC uncover the truth and not base its ruling on the legal claims made before it.
Civil Administration statistics show that in August 2017, there were 3,455 homes and public buildings on private Palestinian land. The courts and the government backed this Jewish construction using a questionable method which relied on Ottoman law to claim that the land in question was state-owned, although they usually knew that they were breaking the law. In the case of Amona, where homes were built on private Palestinian land with the aid of the Ministry of Housing, the HJC ruled in 2014 that the outpost had to be evacuated within two years. The government did everything possible not to carry out the ruling, and after many delays the families were removed in February 2017, with compensation of 130 million shekels for their relocation.
In several cases, the Jewish Agency's Settlement Division took over lands that it has no authority over and advanced the establishment of settlements on them. An investigation carried out by Haaretz in October 2018 revealed that the division had granted dozens of loans to build and develop illegal outposts, agricultural farms, and other venues throughout the West Bank. It also granted loans to settlers from public funds based upon mortgages for fictitious plots. Illegal actions were also carried out by Regional Councils in the OPT. For example, from 2013 to 2015, Mateh Binyamin gave out more than 55 million shekels to local political associations instead of transferring them to welfare, education, and sports.
In 2017, the Knesset passed the Regulation Law, which enables the expropriation of private Palestinian land for settlement construction. Thus, the Knesset, which is the legislative branch of the state of Israel, passed a law regarding a territory over which it has no sovereignty, in clear violation of international law.
To the list of violations of the law we can add the building of dozens of illegal outposts without official permits from the Israeli authorities but with their help in providing infrastructure, while the army provided for security needs. These acts were documented in the 2006 Sasson Report, which detailed how state authorities broke the law in response to political pressure from the settlers. In conclusion, the settlement enterprise was carried out by forging documents, misleading the authorities, and channeling state funds to the settlements without the public’s knowledge.
Another example of violation of the law is connected to the legal, security, and medical systems. For many years, Palestinians claimed that they were arrested by the security authorities based on confessions that were extracted using torture. Sometimes, there was a quick trial in which investigators from the General Security Services (GSS), military personnel, and doctors testified — and the verdict was that the Palestinian claim of torture was a lie. There were very few such trials because the GSS investigators avoided testifying and the prosecution preferred to reach a settlement with the accused. Yet in 1987, a government commission of inquiry headed by Moshe Landau, chief justice of the Supreme Court at the time, found that a culture of lying had developed within the GSS whereby investigators tortured and lied about it, with the backing of the authorities and doctors representing the GSS, resulting in verdicts against the claimants. It can be assumed that hundreds of people witnessed torture and lied before the courts. Despite the appointment of a GSS Complaints Ombudsman, the phenomenon of torture and the willingness to hide it continue today. In 2016, hundreds of Palestinians filed complaints about being tortured during their interrogation, yet no investigator has been put on trial.
Netanyahu Leading Israel to the Abyss
The years 2019-20 will be remembered as the turning point in Israeli democracy. Following his indictment on charges of bribery, fraud, and breach of trust, Netanyahu and his rightist coalition began the systematic destruction of the system in order to save the prime minister’s skin. Netanyahu appointed his cronies as state comptroller, civil service commissioner, and justice minister; promoted delegitimization of the legal advisors, state prosecutors, and the police; maligned the legal system and incited against any opposing legal forces by calling them “leftists;” delegitimized the Arab minority’s participation in the political process; and viciously attacked the mass media. Following the COVID-19 outbreak, his sycophant justice minister conveniently shut down the judicial system two days before the beginning of his trial, and the speaker of the Knesset, Likud member Yuli Edelstein, exploited the pandemic to dismiss the Knesset before it could begin to appoint committees in which the anti-Netanyahu bloc would have a majority. Furthermore, Netanyahu authorized the GSS to use electronic surveillance of private Israeli citizens to track the spread of the virus, and the police were dispatched to disperse a public protest against this measure although the protestors were following the social-distancing instructions. These are the most salient examples of how Netanyahu is leading democracy toward the abyss.
Israeli democracy is at a dangerous low. With its military government that discriminated against the Palestinian minority, its policy of stealing their lands, and its secret monitoring and suppression of opposition to government policy, Israel was not exactly a model of democracy from the outset, but when Levi Eshkol came to power in 1966, it began to move toward democratization and liberalization and made major advances in this direction. With the beginning of the occupation in 1967, however, it changed direction toward the authoritarian regime we live under today, because the influence of the occupation is felt not only in the OPT but in Israeli society as well. Albert Memmi, in his 1990 book, The Colonizer and the Colonialized, noted that colonial occupiers are influenced by the colonial system. In our 2013 book, The Influence of the Occupation on Israeli Society (Hebrew), Izhak Schnell and I applied this concept to the Israeli occupation, showing how the behavioral norms the conquering society applies in its interaction with the occupied society inevitably seep into the occupying society. That is what is happening to Israeli society!
The prophecy of Professor Yeshayahu Leibowitz is taking shape before our very eyes. In 1968, he wrote:
It is not the territory which is the problem but the population of 1.5 million Arabs who live in it and upon which we have to apply our
authority. Their addition (alongside the 300,000 Arabs who are citizens of the state) under our rule means – the end of the state of Israel as the
state of the Jewish people, the destruction of the entire Jewish people, the collapse of the social structure that we established in the state and
the dehumanization of both the Jews and the Arabs.... The state which will govern over a hostile population of 1.4-2 million farmers will by
necessity become a state of the General Security Services, with all this implies for the spirit of the education, freedom of speech and thought,
and for the democratic regime. The corruption which is characteristic of any colonial system will stick to the state of Israel…. There is also a
concern that the IDF — which until now has been a people’s army — will degenerate and become an army of occupation – whose commanders will
become military governors as have their colleagues in other countries.”
Our leaders can create a narrative about the greatness of Israeli democracy, and the Israeli public, who cares most about their own prosperity and happiness, may buy it, but reality tells a different story. According to the democracy indicators published by the Israel Democracy Institute, Israel is ranked at the bottom of the OECD countries. That is not an honorable place for a country that purports to be “a light unto the nations.”
The desire to expand the territory of the state of Israel and the desire to rule over the Palestinians and to settle Jewish citizens in the OPT is inevitably leading to a collapse of Israeli democracy, because these goals supersede the values and principles upon which democracies rest. Without liberation from the burden of occupation, the Jewish population of Israel will be condemned to moral and democratic deterioration — and will never be, as the national anthem says, a free people in its land.