Choices of Law, Fragments of History: On Litigating in the Israeli Legal System

In contrast to the American legal system, the Israeli legal system lacks the myth of constitutionalism. The founding fathers of the Jewish state were interested in nationalist ideology, not in the ideals of the Enlightenment. Shimon Peres, a student of David Ben-Gurion, once said in a television interview that the task of Zionism was to transform the Jew from a “Man of the Book” into a “Man of the Land.” The understanding of law by Israel’s founders was very directed: to secure recognition from the existing superpowers of the ambitious project to rule in the densely Arab-populated Palestine. Law in the State of Israel, then, was never, for the founding fathers and ruling elites, an agenda in and of itself. Internationally, law was essentially a nuisance that had to be dealt with through creative diplomacy. There is no doubt that with developments in international law in recent years, particularly through the jurisprudence of universal jurisdiction, Israel will have to take law and rights more seriously than it has in the past.

In this short essay I will explore the potential, and many limitations, of litigating Palestinian human and civil rights in the Israeli legal system. I do this by examining three distinct, yet interconnected, categories of Palestinians: Palestinian displaced, Palestinians under military occupation, and Palestinian citizens of Israel.

Return and Property

The concept of Palestinian return is understood in Israel not in historical or legal terms, but apocalyptically. The denial of Israel's responsibility for what happened to the Palestinians in 1948 persists among Israel’s elites and broad public opinion alike. The dilemma posed both by the actual project of return and by the right to return is conveniently turned into an existential threat. Great efforts are made to demonstrate not only that return to areas inside the Green Line is not feasible, but that there is no such thing as a right of return for Palestinian refugees. Some Israelis go so far as to turn the Palestinian demand for this right on its head, demanding Palestinian acknowledgment of the historical right of the Jewish people in Palestine as a precondition for any agreement with them. Thus, according to former head of Mossad, Ephrayim Halevi, "If [the Palestinians] want a Palestinian state in the 1967 borders, we should demand [their] relinquishing the right of return. Further: what we should demand from the Palestinians is their recognition of Zionism's legitimacy. Not the fact of Zionism, rather its legitimacy." [1] 

Israeli law, basing itself on a historical biblical notions of Jewish presence in what came to be Palestine, recognizes only the Jewish right to return to the geographic area Jews had inhabited thousands of years earlier. Similarly, religious affiliation in Israel crucially affects citizenship status, with citizenship virtually automatic for Jews from the outside and withheld from non-Jews with established ties to the land—a fact that clearly undermines the claim made by the High Court of Israel’s former chief justice, Meir Shamgar, that the Jewishness of Israel is the same as the Frenchness of France.

In Israel, the right of return is denied not only to Palestinians outside Israel’s borders, but even to those inside, that is to say, to those Palestinians forced to leave their homes during or after the 1948 war but who remained inside the new state, becoming citizens. Yet the High Court of Israel had in effect created a right of return for this particular category in the early 1950s, when it ruled that the Israeli military’s “temporary expulsion” in 1948 of the residents of the village of Iqrit was illegal. In 1995, after waging a long struggle to have the court's ruling implemented, the villagers finally managed to obtain the government's approval for their claims. Needless to say, their struggle was not part of the Palestinian national liberation movement. Rather, it relied on the citizenship status of the residents and the fact that they had a High Court of Israel decision favoring their claim.

Ultimately, though, the state was unable to tolerate even this very limited and specific application of return. When no action was taken allowing the villagers to return, the Iqrit case was resubmitted to the High Court in the late 1990s. But by the time the court was ready to deliver a decision in 2003, Ariel Sharon was prime minister. An affidavit in his name was submitted to the court asking that it not allow the villagers to return. His main argument was that such a move would be a strategic error, with damaging implications for the issue of refugee return in the final status negotiations between the Palestinians and Israel. The court approved Sharon's position, though it added its hope that a change in political situation might lead the government to find it appropriate to reach a different decision. [2] 

The fate of property belonging to refugee and displaced Palestinians, which was controlled by the Custodian of Absentee Property created under the 1950 Absentees’ Property Law, was similarly “put on hold” in an earlier (April 1994) High Court ruling, this time until the conclusion of negotiations between Israel and the Arab countries. The case dealt with the request of Israeli land dealers to free up property then under the control of the custodian, and which they had purchased from the legal owners. The court rejected the petition, and its extraordinary ruling made explicit that holding property for the original owners was not the custodian’s task. Rather, the ruling stated, the purpose of the Absentees’ Property law is to fulfill the state's interests in these property: the ability to use it for the advancement and the development of the country, while preventing an absentee under the law from using this property, as well as to possess this property (or its value) until political settlements are reached with the neighboring countries, which will determine the fate of this property on the basis of reciprocity. [3] 

Occupation and International Law

The official Israeli position with regard to its 1967 conquest of the West Bank (including East Jerusalem) and Gaza is that it is not an occupation, because these territories were not seized from a state. Notwithstanding, after the Israeli military’s redeployment from Gaza, Israel has tirelessly sought international recognition for its "end of occupation in Gaza."

Legal challenges to Israel’s occupation policies against the Palestinian civilian population are as old as the occupation itself. Under international law, belligerent occupation is understood to be temporary and of short duration. The fact is, however, that Israel’s 1967 occupation continues and is increasingly entrenched. The dominant response in Israel to the legal challenges against the occupation has been rejection. The military courts, established in the wake of the occupation to prosecute Palestinian resistors, were a parody of due process and accepted legal procedures, while the dominant role of the High Court of Israel has been to rubber stamp with domestic legitimacy even the most egregious actions of the occupation. [4] 

In the last few years, however, Israel has been faced with new challenges on the international legal front. The most dramatic of these was the ICJ’s 9 July 2004 advisory opinion on the separation wall, which hit the Israeli legal system (more than the political system) with a veritable effect of “shock and awe.” It was the unfolding deliberations in the ICJ that prompted domestic litigation against the wall, with legal challenges brought by Palestinian villagers whose lands were affected. A week before the ICJ delivered its opinion, the High Court of Israel ruled on a 40-km segment of the wall in the Jerusalem area, recommending some modification in routing so as to lessen the hardship on the affected villagers, even while affirming the wall to be legal. This exercise in anticipatory damage control did not succeed in changing the ICJ’s advisory opinion, which ruled the wall to be illegal and called for its immediate dismantlement. Ultimately, the High Court endorsed the official Israeli position rejecting the ICJ's opinion on the rather problematic grounds of (a) the temporary nature of the wall and (b) absolute military necessity. Neither argument is difficult to refute. With regard to the wall’s “temporary nature,” Israeli officials now acknowledge openly, almost on a daily basis, that the wall’s path is the future Palestinian-Israeli border in the West Bank. As for the second argument, absolute military necessity is traditionally invoked to rationalize immediate military action in order to confront an imminent threat, and is thus hardly applicable in this case: construction of the wall is certainly not an immediate action, and it is very doubtful that the construction fits the definition of a military operation.

Another significant development that has made the Israeli legal establishment take international legal challenges more seriously is the upsurge in lawsuits and complaints lodged against Israeli military commanders in recent years in various parts of the world using the principle of universal jurisdiction. The first of these was the interesting but failed complaint in June 2001 in Belgium against Ariel Sharon for his responsibility for the Sabra and Shatila massacres in September 1982 in Lebanon. [5] Next were complaints in England in October 2002 against former Israeli chief of staff and defense minister Shaul Mofaz, who, according to media reports, was asked to leave London to avoid a potential arrest warrant against him. More recently, a British arrest warrant was issued in September 2005 against former Israeli General Doron Almog on the basis of a complaint concerning his responsibility, inter alia, for unlawful killings and extensive home demolitions in Gaza during the al-Aqsa intifada. Around the same time, two civil law suits were brought to court in Washington, DC, the first, in November 2005, against former Israeli chief of staff Moshe Ya’alon for his role (as chief of military intelligence) in the 1996 bombing of civilians in Qana, Lebanon, and the second in December 2005 against Avi Dichter, former head of the Israeli General Security Service (Shin Bet), for his responsibility in the bombing of a densely populated residential neighborhood in Gaza in July 2002.

The importance of these legal developments cannot be underestimated. Their effect is reaching High Court justices and creating concern in the Justice Ministry and the attorney general’s office, which represents state officials charged with human rights abuses. Some lawyers arguing in the domestic arena are now emphasizing the international law dimension of the violations against their clients, suggesting other avenues for seeking redress; the international legal activism has thus created what can be called a “jurisprudence of deterrence.” The state, aware that outside legal authorities could use universal jurisdiction mechanisms against Israeli perpetrators of breaches of international law not held accountable in Israel, will have to treat allegations in domestic cases seriously. Thus, despite the fact that Israel, like the United States, consistently refuses to ratify the Rome Statute establishing the International Criminal Court (ICC), the enforcement of international law through domestic jurisdiction mechanisms can become as effective as if Israel had given the ICC jurisdiction to deal with such cases.

Equality and Superiority

Litigating for equality in Israel by Palestinian citizens is a relatively new phenomenon. The framework for such litigation is Israeli citizenship. Since Israeli law does not acknowledge collective rights for the Palestinian minority (apart from some religious rights, in keeping with Israel’s foundations as a sectarian state), legal claims in court are usually based on administrative and constitutional law arguments as made and interpreted by the High Court of Israel.

A case that caused a significant uproar among Israeli legal and nonlegal elites in 2002 was one that called for all signs in towns in which both Arab and Jews reside to be written in Arabic as well as Hebrew. Up to that time, signs were in Hebrew only. In a two-to-one decision, the High Court accepted the demand of the petitioners, though in the same decision all three judges reaffirmed the superior status of Hebrew as a matter not merely of fact but of law. The resentment among the Jewish population caused by this case seems unwarranted, not only because of the court's clear preservation of Hebrew as a superior language, but also because the Arabic on the signs will be no more than an exact transliteration of the Hebrew names: “Herzl Street,” for example, will simply appear in Arabic letters, and there is no question of return to the original pre-1948 names.

A number of major elite organizations in Israel were disturbed by this limited court decision. For example, the Israeli Democracy Institute (IDI), a main promoter of a written constitution for Israel (which to date has not adopted one), held that the court should not have pronounced on this issue, since it is up to the Knesset to decide the status of the languages when it adopts a constitution. The IDI’s proposed draft accords the Arabic language an even lower status than the High Court ruling. In the IDI draft, "Hebrew is the language of the state," whereas "Arabic is an official language," and "its usage by official bodies of the state will be regulated by or according to law."

Several motives can be read into the IDI’s vigorous advocacy of a constitution founded more on Israeli Jewish consensus than on liberal democratic principles. The first is to use the process to reconcile disputing groups within the Jewish majority, mainly secular and religious nationalists, exacerbated by the settlement issue and the disengagement from Gaza. The second is the perception that the High Court is acting too liberally and that a supreme document like the constitution would constrain its supposed liberal judicial activism by outlining its limits. The recruitment of former chief justice Shamgar to head the campaign for advocating such a constitution makes this purpose more evident.

The current drive is not the first attempt to create a constitution in Israel, but it is certainly the most serious one to date, considering the immense resources, financial and symbolic, put to the task of advocating it. All the attempts have failed so far mainly because of the internal Jewish debate over the status of religion in society, especially with regard to issues of equality and the rights of women. The IDI’s proposed constitution has the best chance to pass in the Knesset because it aims at the lowest common denominator in Israeli Jewish society. Indeed, its main purpose is to formulate an Israel attractive to its Jewish citizenry only and to ratify the state’s special relationship with the Jewish citizens of other countries. It is essentially based on ideas and principles that are far from the enlightened ideals enshrined explicitly in the South African constitution or in the Canadian one. In adopting such a constitution, Israel may argue, particularly to foreign audiences, its official transformation to a constitutional democracy. Domestically, however, it will simply open a new phase of struggle against Israeli discrimination, racism, and domination.

Marwan Dalal is an attorney with Adalah, the Legal Center for Arab Minority Rights in Israel.

1. Ari Shavit, "Smiley Stopped Smiling," Ha’Aretz, 5 September 2003.

2. H.C. 840/97 Aouni Sbeit et al. v. The Government of Israel et al. 47 (4) Piskey Din 803.

3. H.C. 4713/93 Ze'ev Golan et al. v. The Special Committee According to Article 29 of the 1950 Absentees' Property Law et al. 48 (2) Piskey Din 638, 644.

4. See David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany: State University of New York Press, 2002); and Barak Cohen, "Democracy and the Mis-Rule of Law: The Israeli Legal System's Failure to Prevent Torture in the Occupied Territories," Indiana International and Comparative Law Review 12, no. 1 (2001), p. 75.

5. See Yuval Shany and Keren R. Michaeli, “The Case against Ariel Sharon: Revisiting the Doctrine of Command Responsibility,” NYU Journal of International Law and Politics 34 (2002), p. 797; Damien Vandermeersch, "Prosecuting International Crimes in Belgium," Journal of International Criminal Justice 3, no. 2 (May 2005), pp. 400–21.