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In 1992 the Knesset enacted Basic Law: Human Dignity and Liberty. This basic law speaks clearly about human dignity. It states explicitly: “All persons are entitled to protection of their life, body and dignity”. And let it be emphasized: all persons, not just citizens, not just residents, and not just Jewish persons. However, Judge Aharon Barak’s Supreme Court (sitting as the HCJ) has ruled that the law is applicable to Jewish settlers in the territories, but the question of whether it is applicable to their Palestinian neighbors has been left as “pending decision”, i.e. an open question about which the need to decide has not yet arisen.
This ruling is crude legal activism by the HCJ, distorting the words of the basic law enacted by the Knesset, turning it into an Apartheid law. More precisely, this is Apartheid common constitutional law.
Since then, the Israeli Supreme Court has added two building blocks to the edifice of Apartheid. The first one is the ruling which recognized “Bank-Hamizrachi’s” constitutional property right in a house built in the Gaza strip. Thus, the HCJ actually decided that a Jewish corporation in the occupied territories is entitled to constitutional rights stemming from the Basic Law, but the question whether a Palestinian person in this area is entitled to those rights has been left open. The second building block was laid by the Ga’abith ruling, which addressed the question whether a Palestinian man residing in Israel as the spouse of an Israeli resident has the right of hearing, after the state decides to deport him for security reasons. The state argued that the Palestinian man had no such right, since he had no legal status in Israel. Judge Elyakim Rubinstein recognized the Palestinian man’s right of hearing, since this right is supposed to be granted to every person. However, lo and behold, the view of this judge who represents the religious right wing remained a minority view! The seemingly liberal judges, Dorit Beinish and Hanan Meltzer, ruled that the Palestinian man’s right could be derived from the right granted to his Israeli spouse, and subsequently left open the crucial question whether he himself has that right independently.
By doing so, the HCJ has completed the edifice of Apartheid which it had been building. Basic Law: Human Dignity and Liberty is not applicable to all those who are regarded as human beings by a humanist attitude. Neither are the boundaries of its jurisdiction geographic, like the green line. Instead, they are substantively ethnic. A Jewish settler will be protected by the basic law – both in the territories and in Israel. Her Palestinian neighbor’s rights, which should follow from the basic law, either inside Israel or in the occupied territories, have yet to be decided.
Leaving this question open, under the status of “pending discussion”, leads, at the very least, to a delay in the recognition of the Palestinians’ right and conveys the message that for 17 years Israel’s Supreme Court has been regarding basic laws as currently irrelevant for granting constitutional protection to the Palestinians. Thus, contrary to the common view, the Supreme Court has not only exercised a tight-fist policy in protecting Palestinians from violations carried out by the other Israeli branches of power, it has also exacerbated these violations, through its “legal activism” approach, denying Palestinians protection granted by the Israeli parliament.
URI WEISS is a PHD law student at the Hebrew University, Jerusalem.
This article was translated from the Hebrew by URI WEISS and Ofer Neiman.