(Jonathan Cook is a writer and journalist based in Nazareth, Israel. His book,
Blood and Religion: The Unmasking of the Jewish and Democratic State, is
published by Pluto Press.)
A low-key
but injudicious war of words briefly broke out between Israel’s two most senior
judges in the wake of the May 2006 decision by the Supreme Court to uphold the
constitutionality of the Nationality and Entry into Israel Law. A temporary
measure passed by the Knesset in July 2003, the law effectively bans marriages
between Palestinians in the Occupied Territories and Israeli citizens.
The two
judges’ squabble was an indication of how crucial each believes the statute’s
permanent addition to or removal from the books will be in determining Israel’s
future in the new era of separation from the Palestinians that Prime Minister
Ehud Olmert hopes will dawn as he seeks unilaterally to determine his country’s
final borders. Will Israel be a state that is ruthless and unselfconscious about
protecting its Jewishness, or one that maintains at least a pretense of
respecting universal rights of citizenship?
SEPARATION, PHYSICAL AND EMOTIONAL
The law has
been roundly condemned in Israel and abroad as racist because it amends a
founding piece of legislation -- the 1952 Nationality Law -- in order to prevent
Palestinians from gaining any residency or citizenship rights inside Israel upon
marrying an Israeli citizen. In effect, Palestinians have been barred from
joining their spouses and offspring in Israel.
The Israeli
government has argued the need for such a sweeping ban on security grounds: It
says a small number of Palestinians has used residency as a way to assist in
terror attacks inside Israel. Before the Supreme Court, the government cited a
figure of 25 such Palestinians who have been questioned on security-related
matters, though it has not said how many of them were involved directly in
attacks or convicted of an offense.
The law has
mainly harmed the interests of Israel’s large Arab minority -- more than one
million Palestinian citizens -- because they, rather than Israeli Jews, have a
history of marrying Palestinians from the Occupied Territories, often neighbors
or distant relatives living in towns and villages that, until Israel’s building
of the fence-cum-wall, straddled the Green Line, the pre-1967 border that was
effectively erased with Israel’s occupation of the West Bank and Gaza.
Compounding
this injustice, the law has also made any kind of life together for such couples
almost impossible because the Israeli spouse is banned under military
regulations from entering Palestinian-controlled areas of the West Bank and Gaza
Strip. The law has created an emotional separation between Palestinians with
Israeli citizenship and Palestinians in the Occupied Territories that parallels
the physical separation established by the wall.
In May
2005, the government made a small adjustment in an attempt to dampen protests
from global organizations such as Amnesty International and Human Rights Watch.
The interior minister was given the power to approve temporary residency permits
for Palestinian male spouses over the age of 35 and female spouses over 25.
However, the great majority of cases -- which involve younger couples -- remain
unaffected. Even those spouses technically entitled to residency have limited
rights to work and receive medical and welfare benefits, and their applications
can be refused on security grounds without explanation or right of appeal.
A
“TECHNICAL LOSS”
The Supreme
Court, which has been faced with a series of suits from human rights groups
targeting the law, finally issued its verdict on May 14. Six judges sitting on
an expanded 11-member panel rejected the petitions and upheld the statute. The
closeness of the vote was a reflection of the deep divisions separating the two
camps, one led by the chief justice, Aharon Barak, and the other by the deputy
chief justice, Michael Cheshin, both of whom are quickly approaching
retirement.
In his
minority report, Barak argued that the law violated the right to a family life
and the right to equality that are both implicit in Israel’s Basic Law, the
nearest thing Israel has to a constitution. He also claimed that, in view of the
indiscriminate nature of the ban, the damage done to family life outweighed
security justifications. The chief justice concluded that the temporary law,
which is due to expire at the end of July, should be extended for a further six
months while the state redrafts it.
Cheshin,
on the other hand, denied that Israeli citizens enjoy a constitutional right to
bring a “foreign national” into Israel, contending that the state has the right
to protect the “face of its society.” Furthermore, he claimed that because
Israel is at war with the Palestinians, it is a proportional measure to deny
entry to enemy nationals. He compared Israel’s position in trying to prevent
entry of Palestinians to that of other countries facing infiltration from enemy
states, citing as an example Britain’s blocking of immigration from Nazi
Germany. This comparison implied that Cheshin believed the Palestinians were not
only enemy nationals, but also from an enemy state (an odd formulation for
referring to Palestinians, as several commentators would soon point out). He
concluded: “[It] is the right -- moreover, it is the duty -- of the state, of
any state, to protect its residents from those wishing to harm them. And it
derives from this that the state is entitled to prevent the immigration of enemy
nationals into it -- even if they are spouses of Israeli citizens -- while it is
waging an armed conflict with that same enemy.”
From early
on in the hearings, Cheshin demonstrated little sympathy for the families
affected by the law. In February, he observed to lawyers that an Israeli who
married a Palestinian “should live in Jenin,” a Palestinian city in the West
Bank besieged by the Israeli army and which Israeli civilians are banned from
entering.
The
majority view was termed “shameful” by the liberal daily Haaretz newspaper, and
several columnists elegantly picked Cheshin’s arguments apart. Yitzhak Laor, for
example, noted: “Palestinians who live in the occupied territories are not
‘inhabitants of an enemy state.’ They are not inhabitants of any state. They
have been subjects of the Israeli occupation for over a generation.”
Outgoing
Chief Justice Barak, possibly unhappy to end his term with the stain of such a
ruling, e-mailed a law professor at Yale University trying to play down the
significance of the decision and to distance himself from it. In his missive,
leaked to the press, he described the verdict as only a “technical loss,”
adding: “I devoted much time and energy to writing my opinion and to the attempt
to persuade my colleagues.”
Explaining
his more liberal position, he stated: “In my opinion, I decided that the right
to family life is a constitutional right of the Israeli partner or his/her
child. This right includes not just the right to marry, but also the right to
live in Israel. I also decided that the statute discriminates against Arabs,
since all those who seek family unification from the West Bank are Arabs.” Barak
characterized the majority’s backing of Cheshin’s countervailing security
position in the following terms: “One judge supported his reasoning. Three
judges concurred with me on the violation of the rights, but agreed with Cheshin
on the proportionality issue.”
This
belittling of the majority verdict prompted a settling of scores by Cheshin, who
indiscreetly gloated to a reporter: “Justice Aharon Barak is ready for 30, 50
people to be blown up, but we will have human rights. I am not ready for that.
He thinks that; I think differently. To my great happiness, I am in the
majority.” Cheshin later apologized for these remarks, saying they were made in
the heat of the moment.
A recently
retired Supreme Court justice, Dalia Dorner, castigated Cheshin for his
comments, noting that risk taking is in the nature of judicial work, because a
judge cannot know for sure the effects of her judgments. Pointedly, she
observed: “Who says that a terrorist will emerge precisely from among
Palestinians who marry Israelis? Why does the identity card they [Palestinian
spouses] would have endanger state security and not the blue card of the 231,000
Palestinians we annexed in East Jerusalem? Why is the one who married an Israeli
more dangerous? In my opinion, when I discriminate en masse against Israel’s one
million Arabs, thereby alienating them, I do more actual damage to our future
security than the theoretical damage under family unification.”
“DEMOGRAPHIC DEMON”
While Barak
and Cheshin expounded their differing assessments of the legality of the
government’s security argument, the subtext of the Nationality and Entry into
Israel Law went unaddressed. Cheshin made an elliptical reference to the “face”
of Israeli society, while another judge, Ayala Procaccia, alluded to the fact
that there was probably an additional logic driving the measure. That unspoken
motive was demography.
The
“demographic demon” -- the fear that Israel’s Jewish majority is being slowly
eroded by higher Palestinian birth rates and threatened by continuing
Palestinian demands for a right of return -- has been lurking quietly in the
shadows ever since Israel was established. But the demography debate has become
cacophonous in recent years, as Israel has faced, for the first time since its
founding, an imminent Palestinian majority in the region.
From the
earliest days of the Nationality Law’s amendment, observers suspected that
security was being used as cover for a deeper concern: that, by giving
citizenship to Palestinian spouses, Israel would only be adding to its
demographic headache. Given the disengagement from Gaza and the “consolidation”
implicit in the West Bank wall (both measures essentially inspired by
demography), officials were said to be terrified that, as they closed the
“borders” to the Palestinians, they would be leaving the back door open via the
unification procedure.
That
argument, however, did not emerge into the light until May of 2005, when the
former prime minister, Ariel Sharon, called a press conference aboard his
private jet. He was on his way to Washington to plead with the Bush
administration for money to help ease the withdrawal of the 7,000 settlers then
living in the Gaza Strip.
Although
the coming trauma of the disengagement should have been uppermost in his mind,
Sharon took the opportunity instead to defend the Knesset’s latest renewal of
the temporary amendment to the Nationality Law. He said: “The Jews have one
small country, Israel, and must do everything so that this state remains a
Jewish state in the future as well. There is no intention of hurting anyone
here; there’s merely a correct and important intention of Israel being a Jewish
state with a massive Jewish majority. That’s what needs to be done, and that’s
exactly what we’re doing. This is considered normal everywhere.”
Few
observers were surprised by Sharon’s comment. Trepidation associated with a
Palestinian “right of return by the back door” had been brewing for the better
part of a decade.
“THREATENED WITH ANNIHILATION”
Until its
amendment, the Nationality Law afforded the only, if uncertain, route for
Palestinians in the Occupied Territories to gain Israeli citizenship -- through
the family unification procedure that follows marriage to an Israeli. But until
the beginning of the Oslo process in the mid-1990s, few Palestinians had
bothered to stake such a claim.
The reason
was simple: a mixed Palestinian and Israeli couple could move freely back and
forth across the Green Line. But as the idea of national separation implicit in
the Oslo accords took hold (and especially as Israel started to limit
Palestinian movement using a system of permits, checkpoints and curfews),
couples began applying to the Israeli Interior Ministry for unification.
Israel has
two separate tracks for naturalization. Under the Law of Return, all Jews
(defined as anyone with one Jewish grandparent) are entitled to immigrate to
Israel and receive automatic and immediate citizenship. They can also bring with
them family members -- a spouse, children and grandchildren -- even if these
people are not classified as Jews by the Orthodox rabbinate (who require that a
Jew have a Jewish mother).
Non-Jewish
naturalization is governed by the Nationality Law, sometimes translated from
Hebrew as the Citizenship Law. It sets up a lengthy procedure that involves
candidates applying for a series of temporary permits for five years before
being issued with permanent residency. Israeli citizenship can only be acquired
if the applicant renounces his or her existing citizenship. During this wait,
the security services usually run detailed checks on the applicant.
Although
Palestinians were entitled to citizenship under these rules, few in practice
ever received it and many struggled even to get residency permits. But it looked
like that would change in 1999, when the government promised to equalize the
treatment of all family unification applicants rather than face a ruling against
its discriminatory practices from the Supreme Court. As a result, the first
bundle of applications for citizenship from Palestinians was due to drop on the
interior minister’s desk in 2003. But in the spring of 2002, the minister, Eli
Yishai, announced a sudden administrative hold on all applications from
Palestinians for family unification. The freeze continued until July 2003, when
the amendment to the law was passed.
At the
time, Avi Dichter, then head of Israel’s internal security service, the Shinbet,
argued that the amendment was “vital for Israel’s security.” He said a number of
Palestinians had used their citizenship or residency to launch terror attacks
inside Israel, although the government refused to provide numbers or cite
examples to human rights groups. It had been widely reported in the Hebrew media
that, even before Yishai implemented his freeze, he had been disturbed by
figures his officials were compiling of Palestinian applications for
citizenship. According to the Population Administration, at least 22,000
Palestinians had received citizenship since Oslo. When the couple’s children
were included, according to officials, the figure rose to more than 100,000
Palestinians.
In fact,
this number was a gross distortion, as a much later investigation by Haaretz
showed. The head of the Population Administration, Herzl Gedj, a Likud activist
and an intimate friend of Sharon, had ordered his department to include repeat
applications in the total as well as claims from other foreign nationals, not
just Palestinians. The true figure was 6,000 Palestinians.
Fear of the
“demographic demon,” however, has kept the Israeli public, media and legislators
-- and now apparently the courts -- receptive to government claims that severe
restrictions on Palestinian residency and citizenship are needed. Commenting on
the Supreme Court’s decision, the Jerusalem Post noted that the security
argument for the law was “weak,” but observed: “Israel is openly threatened with
annihilation -- not just physically, by a potential Iranian nuclear capability,
but demographically, by Palestinian claims of a ‘right of return’.” The
immigration absorption minister, Zeev Boim, took a similar view: “We have to
maintain the state’s democratic nature, but also its Jewish nature. The extent
of entry of [Palestinian spouses] into Israel’s territories is intolerable.”
SURREAL
AIR
The
inability of the judges to consider the demographic imperatives behind the law
added a surreal air to the court proceedings, as well as to the later bickering
between Barak and Cheshin. Neither objects to measures designed to safeguard
Israel’s Jewishness, and both probably feel equally passionately about a law of
this kind being on the books. But they differ on whether it is necessary to
“sell” such a law to the outside world.
Barak
felt his first and most important duty after the decision’s publication was to
contact his friend at Yale University to distance himself from the law in its
current, overtly discriminatory form. Cheshin, on the other hand, appears
comfortable referring to the need to protect the “face” of Israeli society --
this euphemism his only minor concession to protecting the court’s “liberal”
image. Barak neglected to mention to the Yale law professor that even he did not
favor overturning the law immediately, only giving the government enough time --
eight months -- to alter it, presumably so that he and the court’s liberals
would not be too embarrassed to endorse it.
Patting
himself on the back to his Yale friend, Barak also observed that the justice
minister, Haim Ramon, understood that Barak’s position had really prevailed over
Cheshin’s. He wrote: “The justice minister announced this morning that if the
Parliament tries to enact again the statute without any change, there is a high
probability, according to the views of the court, that the statute will be
unconstitutional.”
This is
because six of the 11 justices took the view that law violated Israel’s Basic
Laws. The vote of Justice Edmond Levy, however, tipped the balance in Cheshin’s
favor, because Levy accepted that the court should not interfere in the law for
the time being, as the measure is temporary and due to expire shortly. In other
words, according to Barak, if the government simply keeps renewing the temporary
law, the court will probably find against it. The government is therefore under
pressure to redraft the law quickly, probably within the eight-month deadline
recommended by Barak, as a permanent statute. The signals are that it expects to
formulate the measure as a new Basic Law, so that its constitutionality cannot
easily be questioned by the Supreme Court.
UNFAVORABLE COMPARISON
That is
certainly the stated position of Justice Minister Ramon, who on May 25 ordered
his department to prepare Israel’s first immigration bill “based on
international law.” He added: “The time has come for Israel to have clear
immigration legislation that will give priority to Jews returning to their
homeland but will also allow the possibility to naturalize on the basis of
universal principles.” All the indications are, however, that Ramon is playing
fast and loose with the concept of “universal,” if only to satisfy the
discomfited among Israel’s senior judiciary. Certainly, Palestinians and
inhabitants of most other Arab states are not expected to be included among
those entitled to residency in Israel. Ramon hinted as much when he stated: “The
State of Israel, which designates itself a Jewish and democratic state, is
authorized to limit entry via its borders.… The state has an absolute right to
prevent citizens of hostile states from becoming citizens of the state.”
His staff
is almost certain to base the new bill on the recommendations made in February
by a government-appointed committee headed by Israel’s foremost constitutional
law expert, Amnon Rubinstein. The committee argued that Palestinians and
inhabitants of “hostile” states, meaning Arabs, who marry Israelis should be
banned from rights to either citizenship or residency in Israel.
Other
non-Jewish spouses, the committee argued, should face age and income
requirements and be expected to affirm a loyalty oath -- not to Israel, but to
Israel as a Jewish and democratic state. In keeping with current policy,
non-Jews are unlikely to receive citizenship, but may be eligible for residency
rights.
Adalah,
the legal center for the Arab minority in Israel, which petitioned the Supreme
Court on behalf of families separated by the law, compares the Israeli judges’
decision unfavorably with a similar appeal heard in 1980 by the courts in
apartheid South Africa. In that case, black South Africans with passes to work
in white areas petitioned against a law that prevented their spouses without
permits from living with them. The South African court sided with the
petitioners rather than the government, arguing that the ban violated the right
to a family life.
“Unlike
apartheid South Africa, we have a majority in our court who refuse to provide a
legal remedy against a racist law, one which deprives citizens of their basic
rights based on their ethnicity,” observed Orna Kohn, a senior Adalah lawyer.
“We have a racist law and our courts will give no remedy. That is a very
dangerous message. It empties the idea of constitutional protection of all
meaning.”
