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.
16 Ibid.
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.