One of the main issues raised during the recent conflict in the Gaza Strip — apart from a considerable number of allegations of violations of international humanitarian law that will not be dealt with here — concerns the functioning of rule of law in Israel in cases regarding the freedoms of expression, opinion and access to information. The state did all that was in its power (and far beyond) to silence the voices that opposed the government’s policies and operations in Gaza.
Those events were one major component of the process that led to the results of the elections to the Israeli parliament, in which a party, Yisrael Beiteinu, whose leader advocates a manifest racist and authoritarian agenda, has become the third political force in the country. The state’s policies that will be examined in this article — the ban on protests, the restrictions on freedom of expression and the disqualification of Arab political parties — are a part of the transformation of Israel into an authoritarian regime based on segregation.
The ban on protest
During the military operations in Gaza, protesters met with police and army brutality in nonviolent demonstrations against the war. According a 12 January 2009 report by the Israeli daily Haaretz, and a 2 January 2009 report by the human rights organization Adalah, during 230 such demonstrations, 801 protestors were arrested, 277 of them children and juveniles; arrests were made for “disturbing the peace,” waving Palestinian flags, and “hurting the nation’s morale.” As of 7 February 2009, 255 people were still under arrest, including 89 children and juveniles; 114 indictments were submitted to the courts. Others were called in for interrogation by the security services, and were warned not to take part in any demonstration, some were put under house arrest and were prohibited from entering certain cities. The large majority of those arrested were Palestinians with Israeli citizenship. Palestinian, Israeli and international protesters in the West Bank, participating in nonviolent demonstrations, were violently repressed by the Israeli army that shot at them with live ammunition. Those clashes killed four Palestinian demonstrators in Nilin, Qalqiliya and Sawad. Many others were wounded.
The freedoms of expression and protest and personal liberties were systematically and blatantly violated by the state.
Violation of freedom of the press
Israeli journalists have been forbidden to enter the Gaza Strip for more than two years. Amira Hass and Shlomi Eldar, two well-known Israeli reporters who entered Gaza before the offensive, were arrested immediately upon return to Israel. Foreign journalists have been denied access since the beginning of November 2008, because of the interruption of the ceasefire with Hamas and the closure of crossing points between Israel and the Strip.
The Foreign Press Association petitioned the Israeli high court on 24 November 2008 against this new policy and requested that free access be allowed. The petitioner declared that the reporters demanding to enter the Gaza Strip were willing to exempt Israel from responsibility for their safety.
The first hearing was set only for 31 December 2008, after the petitioner requested urgently that, in light of the new circumstances, namely, the Israeli military operation in the Gaza Strip, foreign correspondents should be allowed to enter the area in order to report from there.
On 2 January 2009 the court rendered its judgment, stating that:
“Indeed, the freedom of speech and the freedom of the press, as for the public’s right to know, remain unchanged even in times of war, and in a period such as this, they have an all the more special importance; however, these rights are not absolute and under the circumstances of the situation in question they are to be balanced against the predicted risk to human lives as a result of opening the crossing points between Israel and the Gaza Strip.”
The court unequivocally endorsed the state’s proposal to let only eight correspondents, referred to as a “pool,” enter the Gaza Strip when the crossing was made possible for humanitarian purposes, and that the entry of the foreign correspondents was to be coordinated with the relevant authority a day prior to the requested entry date.
In addition, the court endorsed the state’s position that the above procedure was “to be subject to changes according to circumstances in the field. However, we expect the respondents to take all the necessary measures, according to the procedures they established, and in consideration of the rights and interests represented by the petitioner.”
A day after the ruling, the ground operation in Gaza began. The state saw in that a fundamental change of condition, which rendered impossible the implementation of the court’s decision. Thus, the obligation to facilitate the journalists’ entry, which the state had agreed on just a day before, was never implemented.
On 20 January 2009, after the end of the operations, the state was ready to grant journalists access to the Gaza Strip. Nonetheless, the Foreign Press Association filed another petition (HCJ 643/09) requesting full access to journalists, as was the case prior to November 2008, because they were not satisfied with a mere declaration of intention from the state. In the course of the hearing the state agreed to provide access, but only to foreign journalists and not to Israeli journalists holding a foreign passport.
Did the state violate the first ruling?
In its second ruling the court held that it would not decide whether there had been a violation of its previous decision as it was not a question that was relevant in the particular case. The state equally claimed that there were no violations, since all the restrictions were imposed, as the state explained, only for security reasons.
The petitioner did not ask for the state to be held in contempt of the court. They did not yet have the following information that was published a day after the filing of the second petition: Haaretz revealed a letter from the Ministry of Defense’s legal advisor to the advisor’s counterpart at the prime minister’s office, showing that the Ministry of Defense had stated that security conditions did not prevent journalists from entering — but that the prime minister’s and the foreign minister’s offices had continued to block access for reasons based mainly on public relations, using security as an excuse.
In the letter the legal advisor to the Ministry of Defense warned that if the prime minister’s office continued to block access, the state could be held in contempt of the court. It should be noted that the state did not deny the existence of this letter or its contents. (The original article was published only in Hebrew in the 21 January 2009 print edition of Haaretz. A partial translation of the article was published in Haaretz’s online edition.)
Banning Arab parties from Israeli elections
The repression of the Palestinian minority in Israel is reminiscent throughout the state’s socio-political history of military rule and policies of ethnic cleansing. To note only one of many problems presented by the structure and content of Israel’s authoritarian legal framework, would be to shed light on its inherently discriminatory nature, which seeks the erosion of the identity of Palestinians living within Israel’s borders through, inter alia, the banning of the Palestinian flag and the systematic denial of Palestinian property rights in Israel.
On 12 January 2009 the Central Elections Committee (CEC) of the Israeli parliament disqualified the candidacy of two Arab parties, United Arab List-Ta’al and Balad (or National Democratic Alliance (NDA)), representing more than 160,000 voters, from running to the 18th Knesset (parliamentary) elections that took take place on 10 February 2009. The disqualification followed a complaint filed to the CEC by Member of the Knesset Avigdor Lieberman, head of the far-right party Yisrael Beiteinu.
According to section 7A of Israel’s Basic Law, the Knesset allows for the disqualification of a party when its objectives or its candidates’ actions involve: (i) the destruction of the state of Israel as a democratic and Jewish state; (ii) incitement of racism; or (iii) support of an enemy state during a conflict, or of a terrorist organization. Moreover, the law has been recently amended to include the provision that concerns those who have visited an enemy country in the last seven years before the submission of their candidacy, as such actions would be seen as supporting an armed conflict against Israel.
The disqualification motion had been introduced to the CEC by a number of right-wing parties and upheld by a majority of committee members including members of Kadima and the Labor party. Several committee members equated the Arab parties’ support for Palestinians residents of the Gaza Strip, during the recent incursions, with support for terrorism. The members’ greatest concern, as it were, was the parties’ platform, which aims to change Israel’s constitutional definition from a “Jewish and democratic state” to a “democratic state for all its citizens.”
Adalah, a legal non-governmental organization dedicated to protecting the rights of Palestinians in Israel, submitted a petition on the Arab parties’ behalf challenging the decision to reject their candidacy. The principal legal claim was that the decision hurt the candidates’ right to be elected, and that preventing party lists from standing for election harms the constitutional right of the public who vote for these lists to elect their representatives to the Knesset. Furthermore, most of the CEC’s members took irrelevant considerations into account, and neglected the existent laws and case law — the parties’ platforms had already been considered in the previous elections by an extended bench of judges who had validated their candidacy, and since then there had been no change in their political agendas.
The petition tells a different story from that which transpired in the media. Adalah pointed out that the debates at the CEC were violent and uncontrolled and did not allow for a constructive discussion of the question at hand, isolating one side. Things got so out of hand that Justice Eliezer Rivlin, the President of the Committee, declared: “in view of the situation that has been created, I have decided not to vote” (protocol from the discussion on 12 January 2009, p. 60).
The parties’ representatives were not given the opportunity to properly present their case, and were repeatedly interrupted (see pp. 20-25 of the protocol). In the short time that was granted to MK Ahmed Tibi, head of the United Arab List (UALAMC), to speak, he stated very clearly that “the Arab parties oppose a policy and not a country” and confirmed that what their political agendas sought was a common solution so that the two peoples could “live together and not die together” (pp 31-33 of the protocol).
Thus the decision taken by the CEC was biased, and based on incomplete quotations from the media that became at times the sole source of evidence. The attorney general stated that even if the claims made in the motions had been true, they still would not constitute sufficient cause to disqualify the Arab parties. Nevertheless, the votes to disqualify both parties were passed by an overwhelming majority of CEC members: 21 voted in favor of the disqualification of the UALAMC, seven members voted against and two abstained; 26 members voted in favor of disqualifying the NDA, three members voted against and one abstained.
On 21 January 2009 Israel’s high court, with a nine-judge bench, unanimously accepted the petition that invalidated the election committee’s decision and reinstated Balad and United Arab List-Ta’al’s candidacy to the 18th Knesset.
Moving towards an authoritarian regime
Once the state starts to intervene in a citizen’s opportunity to form and hold a political opinion; once the media is either silent or becomes mainly a tool of propaganda; and once demonstrations and political parties are outlawed because they oppose the government, a society is heedlessly undertaking a slow but certain transformation, moving away from of a democratic regime and towards of an authoritarian one.
The alleged war crimes committed by the army in the Gaza Strip, the violations of the basic freedoms of citizens within Israel, and the results of the 2009 elections are all examples of such a transformation. What happened in the two months leading up to the elections explains, to a certain extent, the votes of many Israelis, who made a racist party the third political force in Israel.
Avigdor Lieberman’s party advocates the banning of Arab political parties that called for “a democratic state for all citizens,” and the repression of what it sees as the “treachery” of the Arab citizens. According to its website, Yisrael Beiteinu demands an “unapologetical patriotism” and “requires citizens to affirm their loyalty to the state and readiness to serve in the army or in the National Service in order to be eligible for any state benefits.”
The party declares in its platform its intention to make Israel a purely Jewish state, and at the same time, “[i]ncreasing the Jewish Presence in Yehuda, Shomron, [in other words, the West Bank] the Golan [the occupied Syrian Golan Heights] and East Jerusalem” as well as working towards the “separation of Gaza from the West Bank.”
According to the party’s website, “Ideally, ‘the wolf shall dwell with the lamb,’ but we are not living in ideal times. History has shown that there is a dangerous potential for conflict wherever members of two different religions dwell in the same territory. … Members of this [Arab] minority are likely to serve as terrorist agents on behalf of the Palestinian Authority. Many have already made explicit their lack of loyalty to the state. This situation could potentially lead to the collapse of Israel as a Jewish and democratic state and perhaps as an entity all together. Therefore in our view, the only possible solution is the exchange of territory and populations, with the goal of the separation of the Jewish and Arab nations, respectively” (emphasis added).
Lieberman has made a number of utterances inciting racism against a Palestinians with Israeli nationality. A recent press conference organized by Lieberman’s party in Haifa barred Arab journalists from participating. As Haaretz reported on 6 February, during a recent visits to schools in northern Israel, Lieberman was welcomed with calls of “death to the Arabs” and with proposals to “revoke the Arabs’ nationality.” It was recently revealed by Haaretz that Lieberman was once a follower of the Kahane Kach movement, an extreme right wing movement that was outlawed in 1988.
Ideas that were once considered too racist to be legitimately expressed are now part of the mainstream political discourse. At the same time other opinions are silenced. This is a serious warning that the situation in Israel resembles more and more that of the apartheid-era South Africa.
Sharon Weill is a PhD candidate in International Humanitarian Law, University of Geneva, Research Assistant with the Rule of Law in Armed Conflicts project and lecturer in IHL. Valentina Azarov is a Legal Researcher with HaMoked - Center for the defence of the individual and author with the International Law Observer and the Alternative Information Center. The opinions expressed are the authors’ own and should not be attributed to their professional institutions.