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Citizenship Law prefers discrimination over human rights

Recent rejection by the Israeli High Court of the final petitions against Israel’s Citizenship Law – which denies status in Israel to Palestinian spouses of Israeli citizens – was described as a “watershed” ruling. Watershed indeed, but how exactly?

By Hagai El-Ad

Justice Asher Grunis, the Israeli supreme court judge who will become the court’s next president in February, kept his opinion sufficiently brief for the bluntness-and-brevity to stick between the lines. He opted to air his opinion in the court’s recent decision to reject the petitions against Israel’s Citizenship Law, with the following succinct quote: “Human rights are not a prescription for national suicide.”

The quote, incidentally, is taken from previous decisions by Justice Aharon Barak, the court’s former president. Justice Barak, as Grunis explained, based these words on a 1949 decision by the U.S. Supreme Court in Terminiello v. City of Chicago, where Justice Robert Jackson, of the minority opinion in that decision, warned his fellow majority justices: “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Grunis, who unlike Jackson 63 years earlier, ruled with the majority opinion, wrote that he is “ready to… begin from the assumption that the law violates the constitutional right of the Israeli spouse to family life.” I, in turn, am ready to work off the assumption that the quote Grunis selected to open his opinion with is, in fact, a refined expression of his views on the matter.

Let us, thus, begin here: “Human rights are not a prescription for national suicide.” The words are positioned as counterweight against a potential alternative decision, that of the minority opinion. Putting it in language a little less vague, here is what was (not) prescribed by the majority judges: to avoid what we perceive as national suicide, we herby decide to violate certain human rights – and we have the legal and judicial basis to do so.

One can ask certain factual questions about this concise statement, such as: Would the road not taken really have prescribed such a terrible outcome amounting to “national suicide,” or is this just lowbrow racial hysteria? Justice Melcer, also of the majority opinion, went as far as invoking the dangers of the “use of nuclear energy and nuclear waste” – climate change, and the like. Each judge drew from inspirational sources  in order to feed the nightmares. But despite the temptation to go on and roam these plains of “facts” and fantasies, I refuse to.

A Prescription for Hypocrisy 

Enter minority opinion Justice Edmond Levy with the following words: “Outrageous statements… based in the enhancement of fears shared by many, that any insistence on the human rights of the Arab minority, is immediately entangled with an existential threat to Israel.” And after such words, there is nothing, and there is no need to add.

Or perhaps one may have asked about the concise statement’s legal integrity, such as “whether the infringement caused befits the values ​​of the State of Israel” and whether it was “enacted for a proper purpose” and whether “its extent was no greater than required.” Should we perhaps go on and roam the over two hundred pages of case law examining these questions of the limitation clause of Israel’s Basic Laws?

There is small temptation to do so in this case, since it is entirely based on cooperation with a twofold lie. The judges carefully examine the legality of the security considerations behind the contested temporary order, while the actual reasoning is grounded not in security but in demography (as Judge Levy puts it, ever so gently: “this insensitivity towards the infringed upon rights becomes even clearer in light of the conclusion that the law has other purposes except security”); and what about temporality? ”The Citizenship and Entry into Israel Law is not temporary at all, but is intended to escort us for many years despite its promising title.” To examine legality based on lies puts us in quicksand. There is no point to try and roam around here.

Or rather one can try and ask a different question. To go back to the opening of Grunis’ decision and ask the following: Now that the Citizenship Law is an indelible legal stain, constitutionally sanctioned by an expanded panel of our most senior justices, what future does all of this prescribe us? As if the majority judges went ahead and stated: we will not prescribe you, the Jewish citizens of Israel a national suicide. But what exactly did they prescribe in their decision?

In Judge Levy’s words: “A reality, whose salient result is the narrowing of the rights of [certain] Israelis because they are Arab.” Prescribed “an opening for additional legislative acts that have no place within the democratic concept.” Prescribed a law whose “legislation is a watershed event in the history of Israeli democracy.” Prescribed, and have cast “a long shadow over the prospects of democracy in Israel to meet the challenges it could until now. Mistaken is the one who thinks, that over time even the majority, who through the power of its decisions this law came into the world, will be able to withstand the injury… for it will threaten to reach every Israeli as such, since it contains the power to undermine the foundation on which we all stand shoulder-to-shoulder.”

Casting a Short Shadow

When ones breathing becomes heavy as a result of the ruling’s mask of hypocrisy, Judge Levy’s clear words are a breath of fresh air. And yet, in fact, what “watershed event” did we actually encounter here? For even before the Supreme Court’s decision in this matter, all Israelis did not equally stand “shoulder-to-shoulder.” For “narrowing of the rights of [certain] Israelis because they are Arab” is nothing new. In fact, this is how it has been since the state was established, with the facts well known, detailed, on-going. Even when Judge Levy further writes that “minority discrimination only because of who they are” is “something alien to our most basic concepts,” he surely knows that these beautiful words wither in the face of the ugly reality. Hollow words tend to lose their beauty, even if their author desires desperately to believe in them.

The decision’s “watershed” impact is thus elsewhere. Not in the extended shadow that it casts over the “prospects of democracy in Israel to meet the challenges it so far has” – for it has not. But rather in the shadows that are becoming shorter, as the gap between beautiful words and a dismal reality narrows. It is a declaration of what the State of Israel really thinks of how essential it is “that human rights should be protected by the rule of law,” as the language of The Universal Declaration of Human Rights demands. Essential? After the High Court openly approved the trampling of human rights by virtue of a racist law, it proved what is now essential: To protect human rights from being trampled “by the rule of law.”

Who said Israel does not have a constitution? ”Human rights are not a prescription for national suicide.”

 

The author is executive director of the Association for Civil Rights in Israel (ACRI). ACRI was one of the petitioners in the case. This op-ed was originally published in Hebrew at Ha’oketz.

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  • COMMENTS

    1. aristeides

      It comes down to this – If human rights threaten a nation’s existence, it’s time to consider that the nation in question does not deserve to exist.

      Reply to Comment
    2. Michael W.

      Aristeides, that sounds like coloniest talk to me.

      Reply to Comment
    3. Palestinian

      @ Aristeides , what if that so-called nation was “created” at the expense of a real active nation ?

      Reply to Comment
    4. aristeides

      Let’s say – if a nation can only exist on a foundation of slavery, would we declare that nation does not deserve to exist?

      Reply to Comment
    5. Palestinian

      Thats in case its a nation but anyway for the sake of arguement (as Norman.F says) we arent assuming anything , we have a so-called nation that was created at the expense of a real nation ,so its that fake nation vs the real one,I choose the real one that existed before the fake one

      Reply to Comment
    6. Noam

      while agreeing with the gist of things, i find one essential fact being overlooked in all references to this ruling here on +972.
      this law, at least formally, isn’t racist. it doesn’t discriminate against arab israelis, but against ANY israeli resident wishing to build a family in israel with his/her palestinian partner. if it’s racist against any ethnic group, it would be non-israeli palestinians, and not even that, since it’s about residents of gaza and the west bank, and not american/jordanian/french palestinians for example.
      this law does undermine civil rights of individuals, but not of arabs per se in this case. this is more of a tough migration policy against occupied palestinians, which is messed up anyway. it’s not a reasonable measure like barring residence from citizens of enemy states, since they live under your occupation.

      Reply to Comment
    7. Noam

      before anybody jumps at me, let me be clear. of course the vast majority of these family ties occur between arab israelis and palestinians. of course this is yet another rotten message to the arab minority, in a wider context of messages signaled to them.
      however, when discussing legal issues, one needs to be accurate, and not toss the term “racism” around too easily.
      as to asher grunis, i agree his quotation is dangerous and outrageous. such a populist verdict could be used for literally any denial of human rights in the name of any “national concept” that is greater than the rights of the sum of a state’s residents.

      Reply to Comment
    8. aristeides

      Noam – are you sure the law only discriminates against spouses of WB and Gazan Palestinians? Has it been tested in the case of American Palestinians, or Jordanian or French Palestinians?

      Reply to Comment
    9. Sinjim

      @Noam: You’re wrong. Just because a law doesn’t use racist language doesn’t mean it’s not racist. The citizenship law is aimed squarely at the Palestinian citizens of Israel and their right to marry whoever they choose. This was never about who Jews should and shouldn’t marry, as if the number of Israeli Jews in relationships with Palestinians or other Arabs beyond the Green Line was ever the concern of the law’s authors.
      .
      The argument you’re making is like someone saying the American War on Drugs isn’t racist because it criminalizes all drug use. In order for that to be true, for example, one would have to ignore how crack, a cheap drug whose use is much more prevalent among poor people of color, consistently results in tougher sentencing than does cocaine, a more expensive drug used much more often by affluent white people. One would have to ignore how law enforcement focuses so much more of its resources on communities of color than affluent, predominantly white areas. One would have to ignore that 1 in 9 black man aged 20 to 34 in America is in prison and that one of the most common reasons for this is drug charges.
      .
      Or better yet and more relevant to this topic, that’s like saying the home demolitions that Israel routinely conducts against Palestinian families aren’t racist. Of course, the reasoning behind this vandalism is couched in the terms of legality and the rule of law, since the Palestinians are building without permits. Yet anyone with a shred of intellectual honesty understands that Palestinians by virtue of their ethnicity are denied those permits and thus are forced to build this way in order to live.
      .
      This law is racist — not because this fact is spelled out in the wording. No, its authors are much too clever for that. It is racist because in practice and intent, it harms the rights of only one ethnic group.

      Reply to Comment
    10. From the piece:
      “Even when Judge Levy further writes that “minority discrimination only because of who they are” is “something alien to our most basic concepts,” he surely knows that these beautiful words wither in the face of the ugly reality. Hollow words tend to lose their beauty, even if their author desires desperately to believe in them.”
      .
      No, words believed, desperate or not, can ultimately prevail. In 1886 the US Supreme Court effectively legalized Jim Crow (“separate but equal”); one Justice of 9, not 5 of 11 as in this High Court decision, dissented. His dissent, well after his death, became American Law and stands at the heart of decisions on racial and sexual equality in the work place and use of services/buying of goods. This is little solace for Israeli citizens wanting to marry WB and G Palestinians. But it suggests that decrying the words of the dissent as desperate, perhaps involving lies to self, can be quite wrong. 5 Justices stood up to Grunis; a better start than lone Justice Harlan in 1886.
      .
      Noam,
      I would say that this law does violate racial neutrality in that it prevents any Israeli citizen from marrying another (with later import into Israel) solely based on geographic race. The Israeli Declaration of Indpendence forbids discrimination of full social and political rights based on sex, race, ethnicity, or creed. The social right to find a spouce and live with her/him is fundamental to human life. Denying that right when the chosen spouce is of another race is de facto discrimination by race in the enjoyment of that right. So, as I have said too often here, this law should have been struck down as violating the meta-constituion of the Declaration.
      .
      What Justice Grunis did in his “Human rights are not a prescription for national suicide.” is assert that racial categories foundationally define the State. The Declaration agrees with him by enshrining the free ingress of Jews into Israel (implying other immigation can be curtailed as such, but not as applied when interfering with other rights otherwise enjoyed by Israelis); but it explicitly states that, apart from that free ingress, race may not be used as an exclusionary badge. If, say, a non-Jewish Amercian spouce of an Israeli may reside in the State, so too may Arab spouces of Israelis enter the State. And, as I have noted elsewhere, Israeli security would have likely delayed entry of applicants for a year or more, and I doubt the High Court would have said a word (had the case gone the other way).
      .
      Do not decry this dissent as desperate or hypicritical. This is the beginning of the battle for Israeli law and its constitution. US Justice John Harlan in 1886 began a path; so too have these 5 dissenters. A battle does not decide a war.

      Reply to Comment
    11. Noam

      @Sinjim: No, you’re wrong. Read again through what I’m exactly saying. I still think that this law isn’t racist per se, although it’s aimed against mostly arabs.

      Your example with narcotics in the US has to do with perhaps-racist enforcement rather than legislation.

      Reply to Comment
    12. directrob

      “I still think that this law isn’t racist per se, although it’s aimed against mostly arabs.”
      .
      Sorry, a law cannot “aim” at “mostly Arabs” and not be racist.

      Reply to Comment
    13. noam

      yes it can. maybe the words “aimed against” were wrong. replace them with “affects mostly”.
      just as this “easy-on-cocaine” policy isn’t racist per se, but it’s implication is anti-black.

      and just as the absence of civil marriage in israel is against any jew who doesn’t want to marry with the orthodox rabbinate, but in reality it affects atheists and intermarrying couples. yet it’s not explicitly anti-atheist. get my point?

      Reply to Comment
    14. Of course the absence of civil marriage is anti-atheist. There’s no other reason for it save for the explicit religious control of marriage; AND reducing multiracial marriages. So you get a bizarre episode of 90 + couples marrying in some other country and returning to Israel. The sole reason for the restirction is to remove alternatives in marriage. That is what discrimination is.
      .
      In the US, black/white marriages were banned (until the US Supreme Court struck such laws). What, they really weren’t being discriminatory, just restricting marriage to within one’s race as a gentle reminder?

      Reply to Comment
    15. Igor

      @Noam: A law prohibiting kosher slaughter in Europe IS racist, although it also applicable to a Christian who could theoretically prefer kosher meat. A law prohibiting a circumcision IS racist, even though it also restricts a Christian who, for some reason, would like to do it it himself or his kid.

      Reply to Comment

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