As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The recognition of and respect for human rights are the bedrock of any substantive democracy. Yet, according to the Association for Civil Rights in Israel (ACRI)’s State of Human Rights Report 2009, they are being applied in a discriminatory manner. The Report, published in December 2009, detailed what Haaretz, a left-wing daily, said was a country in which human rights were ‘on probation’. The Report cited internal Israeli discriminatory policies and cataloged systematic human rights abuses in the Israeli occupied Gaza Strip and West Bank.
During operation ‘Cast Lead’ in Gaza in 2009, hundreds of people were arrested at numerous demonstrations within Israel protesting against the war. The State Prosecutor supported harsh action against demonstrators and in one incident signs criticizing the war were characterized as ‘disturbing the peace’. The Israeli media was almost unanimous in its support for the invasion. Severe restrictions on media coverage during the conflict (for example, by not allowing Israeli and foreign journalists access to Gaza) lead to a sharp drop in Israel’s rating on journalistic freedom, from ‘free’ to ‘partly free’ on the Freedom House score sheet (below that of Kuwait, the UAE and Lebanon). The targeting of dissenting individuals by the Israeli state was followed by the targeting of Israeli human rights organizations. ‘Breaking the Silence’ (BtS), an NGO that captured testimonies of Israeli soldiers who participated in ‘Cast Lead’ documenting the use of Palestinian human shields by the Israeli Defence Force( IDF), was publicly defamed by the government. The Israeli Foreign Ministry asked foreign donor governments to halt BtS’s funding.
Discrimination against Palestinian-Arab citizens who live inside Israel continued in 2009, as seen by the wide disparities between them and their Jewish counterparts in areas like education and land allocation. In addition, the proposed Nakba Law placed before the Israeli Parliament but subsequently revised to exclude imprisonment, would have criminalised the marking of the Palestinian Nakba (meaning ‘catastrophe’, used by Palestinians to commemorate the 1948 war), resulting in a denial of the collective Palestinian right to expression. The allocation of educational resources by the state included ‘percentage of students enrolled in the IDF after completing school’ as a relevant factor, discriminating against Arabs citizens of Israel who do not serve in its armed forces. The Israeli Foreign Minister’s party, Yisrael Beiteinu, supported the Loyalty to Israel Law which made the granting of citizenship conditional on a commitment to the ‘Jewish, Zionist and democratic State of Israel, its symbols and values’. Someone who refused this pledge could have had their citizenship revoked. Much to the Ministerial Committee for Legal Affairs’ credit, the bill was rejected.
The distribution of land within Israel continues to discriminate against Palestinian-Arabs, despite the legal opinion of the Attorney General who stated land must be divided on the basis of equality. The Jewish National Fund (JNF) and the Israeli State signed an agreement in June 2009 under which the state would administer property ‘in a manner that will preserve the basic principles of the JNF vis-à-vis its lands.’ In other words, the state would continue to discriminate against Arabs by allocating land for Jewish Israelis in the Negev and the Galilee regions.
Most important however is the systematic oppression of the Palestinian people who live under Israeli occupation in Gaza and the West Bank. The ACRI Report is worth quoting in full: ‘Within the same territorial boundaries … two populations live side by side with entirely separate infrastructure and bound by two systems of justice which are entirely separate and fundamentally dissimilar’. The Israeli settlers in who live illegally in occupied Palestine enjoy full civil rights under Israeli law, while the Palestinians, who live under military occupation, have none. The legal distinction begins with the definition of who is an adult: 16 years old for a Palestinian compared to 18 years for Israelis. Water resources in the West Bank are also unequally distributed- for instance, in the Tubas region, 48 000 Palestinians consume an average of 30 liters of water per person per day, while the 175 residents of the nearby settlement of Bekaot consume 401 liters per person per day.
Finally, the ACRI report notes that a fundamentally democracy-undermining trend has emerged in the past two years: the State’s disregard of rulings by the courts. When the Executive branch of a democratic state no longer deems itself bound by the decisions of its Judiciary, the system becomes open to human rights abuses by the ‘tyranny of the majority’. The Supreme Court’s rulings regarding the ‘Separation Barrier’ around the Palestinian village of Bil’in have been ignored by the Executive since 2007. Dorit Beinisch, the Chief Justice, stated in a recent keynote address that she has ‘no confidence today that we are not on the brink of a slippery slope that could lead us to a place where judicial orders are not honoured.’
When rights are abused by a state in a systematic manner and discriminatory policies are implemented towards minorities within a state’s own borders, the label of being ‘only democracy in the Middle East’ is denuded of its substantive meaning.
Daniel Mackintosh is a law student at UCT and is currently doing an internship in JerusalemBACK TO TOP