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WATCH: 'Separate and unequal' - Interview on Israel's legal system

I recently sat down for an interview with activist and filmmaker David Sheen, as part of a larger project he is working on. We discussed Israel’s legal system and the distortions inherent in it, and the possible avenues for change in Palestine and Israel.

I provide a breakdown of the structure of citizenship in Israel and the different sectors of the population under Israeli control and how the law applies to them.  It’s a system in which there is no single rule of law and in which discrimination and injustice are part and parcel of the legal structure.

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High Court upholds flawed procedure on torture investigations

The High Court of Justice upheld the procedure regarding complaints of torture against Shin Bet agents, despite the fact that this procedure resulted in no investigations after nearly 600 complaints

The High Court of Justice has upheld a controversial procedure governing investigations into allegations of abuse and torture against employees of Israel’s General Security Service, better known as the Shin Bet. According to this procedure, all complaints, usually filed by Palestinians who the Shin Bet detained and interrogated on suspicion of terrorism, are first examined by a Shin Bet official, working under the professional supervision of the Attorney General’s Office. This examination includes interviews with the complainants and the accused agents and review of relevant documentation. The case can proceed to a full criminal investigation only if this official rules that there are grounds to do so: if he finds no such grounds, the case is closed.

This procedure has been strongly criticized by human rights organizations, which submitted the petition that was rejected yesterday. The petition was drafted and litigated by the Public Committee Against Torture in Israel (PCATI), joined by more than a dozen Palestinian complainants, and many Israeli human rights organizations.

The petition and the court ruling (see here for the full text in Hebrew) deal with numerous issues of legal interpretation and organizational structure. However, the most relevant fact may actually be a number: zero. That is the number of complaints that resulted in a criminal investigation, out of about 600 monitored by PCATI. Zero is not the number of convictions, nor even the number of indictments. It is the number of cases that were deemed worthy of even opening a professional criminal investigation by an external body. This record is even worse than that of the flawed mechanism of accountability regarding complaints against settlers or IDF soldiers.

The High Court ruling does not seriously address the remarkable outcome of the Shin Bet’s procedure. After plowing through some 26 pages of convoluted legalese, its basic argument appears to be that the system of investigating complaints against the Shin Bet is “evolving,” and the court does not see fit to interject itself into this evolutionary process. It argues that the Shin Bet has improved on its appalling standards of opacity and unaccountability since the 1980s, and chooses to believe the state’s promises that various additional improvements are in the works.

The court...

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Lethal Sinai attack is connected to the Gaza blockade

The lethal attack on an Egyptian military outpost, in an attempted incursion into Israel, is another reminder of the terrorist infrastructure in the Sinai Peninsula. This infrastructure was built in part on the basis of the Gaza-Egypt-Israel smuggling industry, which is fueled by the massive restrictions on movement and trade imposed on the Strip by Israel and Egypt.

On Sunday evening, terrorists attacked an Egyptian military outpost in the Sinai Peninsula, near the Rafah and Kerem Shalom border crossings, connecting Egypt with the Gaza Strip and Israel respectively. Fifteen Egyptian soldiers were killed in the attack, in which assailants seized two armored vehicles and attempted to infiltrate Israel. One of the vehicles was destroyed by a detonation of the explosives loaded on board; and the other was destroyed by the Israel Air Force, preventing the planned incursion. The attack was probably carried out by a global Jihad group, and was denounced both by the Egyptian government and by Hamas, which controls the Gaza Strip.

This attack is yet another reminder of the dangerous situation which has evolved in the Sinai Peninsula. Conquered by Israel in the 1956 and 1967 wars, and returned both times (in 1957 and following the Camp David peace accord with Egypt in 1979). The peninsula is a desert, three times larger than all of Israel, inhabited by about half a million people, many of them the traditionally pastoral Bedouin. In recent times, it has turned into a popular tourist destination, including for some Israelis.

However, over the last decade, it has also increasingly become a hotbed of terrorist activity. This development has to do with the area’s basic features (poor, largely empty, hard to navigate, international tourists as lucrative targets). But the ongoing crisis in the Gaza Strip is likely to have been a major trigger for the last decade’s deterioration.

The Strip, which borders Sinai, is much smaller, more isolated, and holds less sentimental attachment for Jewish Israelis than the West Bank. As a result, it has always been at the forefront of Israeli efforts to “separate” themselves from the Palestinians. Gaza was one of the first places where Palestinian population centers were evacuated by the IDF under the Oslo Accords, in 1994. It was fenced by Israel long before the West Bank wall, and the final permanent Israeli land presence in the Strip ended when its settlements were evacuated from Gaza...

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Response to Burg: Israel's democracy flawed from inception

The New York Times continues to push the myth that Israel was once liberal and democratic, and is now growing detached from these values. Now it publishes an op-ed by a former Knesset speaker, which promotes this notion and similar misconceptions about the United States and the U.S.-Israel relationship.

Only a couple of weeks after its unusual editorial arguing that Israel’s democracy is in peril, the New York Times has published an op-ed in the same vein, written by a prominent Israeli public figure. Avraham Burg, a former speaker of the Israeli Knesset, who almost became leader of the Labor party in the early 2000s, has moved sharply to the left over the past few years, and is now very far from the Israeli mainstream. Yet in many ways, his article perpetuates classic liberal myths about Israel (impressively refuted by Yossi Gurvitz), which have already appeared in NYT’s editorial.

Burg takes these misconceptions one step farther, applying them not just to Israel but to the United States and to both countries’ relationship as well. He argues:

It is certainly true that Israelis and Americans “talked about” all these values a generation ago. However, that has not changed. And neither have their actions: in the 1950s and early 1960s, Israel and the United States were not fully committed to democracy, internally or externally, nor respectful of other nations. And whereas Americans have significantly strengthened their internal democracy since the Civil Rights movement (not without some recent backsliding on voting), in all other respects, we are witnessing a continuity rather than a sharp break.

From its inception in 1948, Israel imposed a military government on its Palestinian citizens, which was abolished less than a year before the occupation of the West Bank and Gaza began. The United States had Jim Crow. Externally, both countries advocated for democracy only when it suited them, and did not hesitate to support heinous and repressive regimes: Israel with South Africa during apartheid; the United States around the world – with one of the most blatant examples being Iran, where the CIA instigated the military overthrow of a democratically elected government by a tyrannical monarch.

Burg laments that “what ties Israel and America today is not a covenant of humanistic values but rather a new set of mutual interests: war, bombs, threats, fear and trauma.” Yet an honest observer of the two countries’ relationship is likely to conclude the opposite. After a...

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An educational ad captures Israel's culture of fear

In other countries, when you say “education is our future”, you usually mean that it will determine the level of prosperity and accomplishment we can hope to achieve. In Israel, the “future” is meant quite literally, in the sense that without education, we would have no future because we would all be dead.

How deep is the culture of fear in Israel? Every day seems to bring a fresh piece of evidence indicating it is quite deep indeed. Last week, I was waiting for the bus, when I saw this poster on the bus stop:

The picture, taken by me, is unfortunately not very clear. The message at the top says “Don’t leave us behind!” The bottom lines read: “Say no to the chalkboard and chalk! Because education is my future. Yours. [The future of] all of us!” The ad is attributed to “HighQ”, an Israeli corporation (with a name in English, for some reason) which specializes in preparing students for the matriculation exams and SATs. The name of the company is followed by the slogan “Presentations in class are not an extra. They are your grade!”

So far, the poster seems relatively unproblematic, if a bit short on understatement and originality. What is truly scary, quite literally, is the text at the very middle of the poster (which I managed to capture a bit more clearly):

It reads: “Yesterday, they said on the news that Israel has the most advanced missiles in the world. They said that our technological progress is the only reason we have not yet been thrown into the sea. I’m a little scared. I don’t know how to swim very well…” This text is presented as a quote attributed to “Maya, soon to be ten years old”, presumably, the girl whose picture appears next to the text.

For context, I should mention that the threat of being “thrown into the sea”, always by “Arabs”, is a very well-known catchphrase in Israel, indicating the existential threat the country presumably faces.

One could criticize this text for its poor taste and cynical tone. But what is much more worrying is that its creators clearly believe it would hit a chord. In their minds, Israelis are frightened ten-year old children, who feel on the constant brink of extinction....

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Did Spain recognize Israel as the Jewish homeland?

This is what an Israeli newspaper claimed. The truth is more nuanced, and sheds light on how difficult it is for international actors to accept Israel’s demands

According to the Israeli daily Ha’aretz, the Spanish foreign minister outlined a new policy in her speech to the UN General Assembly last week. The headline chosen by the newspaper was “Spain recognizes Israel as Jewish homeland”. According to the article’s text, the Spanish minister also argued that “the issue of Palestinian refugees should be solved in such a way that it does not compromise Israel’s current demographic makeup of a Jewish majority.”

If that was an accurate depiction of Spain’s position, it could be an important (and, in my opinion, worrying) harbinger of an international inclination to accept Israeli demands on these topics. However, the truth is more nuanced and fuzzy than that.

The Spanish foreign minister’s full remarks (PDF) were indeed interesting. On the issue of a “Jewish state”, she says (as Ha’aretz almost fully quotes in the main body of the text):

Diplomatic speech tends to be intentionally hedged, and this statement is no exception. It establishes several degrees of separation between the State of Israel and its Jewish character. Firstly, by referring to “the project to create” a Jewish homeland, rather than the homeland itself, it places the Jewishness of the state in a historical context, as a project that can presumably be completed or at least wound down. Secondly, it refers to a “Jewish homeland” rather than a “Jewish state”, indicating that Israel should be a home for the Jews, rather than embrace a character that is internally biased in their favor. Thirdly, it does not say that Israel “is” the Jewish homeland, but that it embodies the project to create one. In other words, it implies that this is one of the elements that define Israel, rather than the exclusive core of its identity.

Admittedly, this formulation is unlikely to satisfy the Palestinians, or anyone who does not have the time or patience for such semantic gymnastics. However, it does point to the elephant in the room: Palestinian citizens in Israel. The Spanish squirming is meant to answer Israel’s demands, without in any way legitimizing the massive discrimination and exclusion of these citizens. This is a trick that many other international players would like to replicate. But it is unlikely to be successful. After...

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Associated Press bungles fact-check of Abbas' speech

AP tries to fact-check Abbas’ speech at the UN, and ends up accusing him of insufficient adherence to Israeli talking points, while making a series of embarrassing factual errors itself

Generally, I sympathize with those who ask: “Shouldn’t all stories be ‘fact-check’ stories?” Still, as a frequent reader of Israeli journalism, I should be thankful for small favors, and appreciate the genre’s existence in English-language media. But the only thing worse than not checking the facts, is presuming to do so, while being in error oneself. That is what happened to the Associated Press when it tried to fact-check Mahmoud Abbas’ UN speech.

The intro was inauspicious, to say the least. The AP argued that Abbas “presented a narrative that is disputed by Israel.” The agency then offered “counter-arguments” to some of his assertions. Fact-checkers should, at the very least, understand the definition of “fact.” A fact is not an assertion supported by all sides to a debate (otherwise, fact-checking itself would be superfluous) nor is it an argument with no counterargument (ditto). It is simply an assertion which is true. Unless AP is implying that the Israeli “narrative” is always true (an impression bolstered by the omission of an equivalent fact check for Netanyahu’s speech).

Unsurprisingly, and contrary to their assertion, AP has not managed to find a single “factually incorrect” statement in Abbas’ speech, while making quite a few “factually incorrect” assertions of their own along the way.

Occupation: Abbas said Palestinians live under “the only occupation in the world.” AP argues that other groups say they are also occupied. All of those groups, however, live in areas officially annexed by their oppressor, and are citizens of the state that controls their lives. Palestinians, on the other hand, live under military law and have no citizenship. Israel refuses to take responsibility to them or relinquish control. That is what makes it the only occupation in the world.

Prisoners: Abbas views Palestinians held by Israel as “prisoners of conscience.” AP, in accordance with their bizarre method, “refutes” this by referring to Israel’s view of these prisoners as violent security risks. But what are the facts? According to figures provided by the IDF, excluding traffic offenses, less than half [pdf] of the indictments in Israel’s Military Courts, where Palestinians are tried, are for terrorism charges, even under Israel’s expansive definitions of the term. Many of...

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Quartet mum on Jewish state, set new negotiation deadline

The international mediators scrapped plans to endorse a Jewish state. That was probably a wise choice. Right now, the threat to dissolve the PA, if credible, could be much more significant than moves on Palestinian statehood

The Middle East International Quartet – composed of the US, EU, UN and Russia – issued a statement yesterday, following the Palestinian application for statehood. Initial plans to affirm the 1967 lines as a basis for final borders, and to endorse Israel’s identity as a Jewish state, were scrapped, in a favor of a more process-oriented text.

This was probably a wise choice. The support for 1967 lines is hum-drum enough, having been reaffirmed in numerous international pronouncements, documents and resolutions. Netanyahu and his right-wing allies have tried to make an issue of this over the past year, but as usual, the Israeli prime minister got caught in his own web of manipulation, when it was uncovered that he himself has endorsed such language very recently.

The issue of Israel as a Jewish state is another matter entirely. While generally endorsed by the US, other international actors have been more hesitant. As Roee Ruttenberg explains, this is a problematic step for Palestinians, while having little practical effect on Israel’s actual character, which is, in fact, quite Jewish. Had the Quartet backed this principle in its statement, it would have made it difficult for future Israeli governments to compromise on this point, and thus, would have further reduced the already bleak chances of reaching an agreement.

So, the Quartet just barely implemented the Hippocratic principle: “Do no harm.” Has it done any good? Not really. It has suggested a series of steps, with deadlines attached to each stage, which would supposedly culminate in a final resolution of the conflict by the end of 2012. The Israeli daily Ha’aretz quoted a US official saying that:

If he managed to say this with a straight face, you have to give credit to American diplomatic skills. After all, the Oslo accords set a deadline for final resolution by 1999, or twelve years ago. George W. Bush announced that a Palestinian state would exist and all issues solved by 2005, six years ago. And those are just the most prominent of a pile-up of missed deadlines for negotiations.

Considering that the current Israeli government is intransigent, and the US has checked...

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Don't blame Obama for impasse on Palestine

Obama decided there is no point in wasting his time and political resources on Palestine, and he is right. He can’t change Israeli society; no foreign intervention can do that

Obama’s stance regarding the recognition of the Palestinian state, and his strident pro-Israeli tone before the UN have been variously explained as symptoms of the power of the Jewish voters/donors/lobby, or of America’s declining stature and influence in the world (ignoring recent progress on Libya, Al Qaeda and Iraq). But there is a much simpler explanation.

Obama has reverted to the default (i.e. staunchly sympathetic towards Israel) US position, because he realized there is nothing he could do to improve the situation. Therefore, there is no point in wasting his time and political resources on this issue. And he’s right: the US president does not have the power to change the dynamic on Palestine, and he is not to blame for the impasse we face.

What could he have done? Critics say he could have recognized a Palestinian state, and voted according in the Security Council, or pressured Israel more, or offered his own peace plan. But if one runs through the scenarios, it is hard to see how any of these paths could have led to a significantly better result.

If the US administration were to recognize Palestine, this would certainly be a dramatic move, with substantial legal and symbolic consequences. But the US Congress – Republicans and Democrats alike – would do everything in their power to derail this policy. And even if they don’t, it is very hard to see Netanyahu throw away both his ideology and his premiership to follow suit. If the occupation continues, what’s the difference? No wonder many Palestinians are quite skeptical about this path.

What about more pressure on Israel? This is the favorite hobbyhorse of the administration’s critics. Certainly, Obama could have dialed it up many notches. But nowhere near enough to make Netanyhau, or his coalition, change their stripes. Without support from Congress, there are few sanctions the President can apply, and it is not clear that even sanctions would have made the Israeli right budge, or caused its public support to collapse.

Surely, Obama could have presented a peace plan of his own? The idea is appealing as an abstract notion, but one soon gets stuck on the content. Remember that Olmert and Abbas exchanged competing proposals on borders,...

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Israel policy myth #4: Our un-American social safety net

As Israelis rise in social protest, they comfort themselves with the thought that our safety net is at least better than that of the ultra-capitalist US. They are wrong

The unscheduled and unfortunately long hiatus in the Israeli policy myths series coincided with the unprecedented rise of the current social protest movement. This movement has brought the enormous erosion of Israel’s social safety net to the forefront of public discussion. Yet, if anything, Israelis are underestimating how bad things have become. In this, the suddenly topical fourth installment of the series, I will argue that the situation here is now worse than in the United States, which is widely considered the bastion of “leaving thing up to market,” social Darwinist ideology.

First, let us begin with the headline figure. The US spent 17% of all the goods and services it produced in 2007 on government-provided social services. Israel spent just 15.5% on those services. Among OECD members, this puts it seventh from the bottom, squarely beating such countries as Chile, Mexico and Turkey.

Admittedly, this is largely a reflection of much higher spending on healthcare by the US, which does not necessarily lead to better results, and actually includes less coverage than Israel’s universal system. But the overall impression of an immensely weak social safety net, even in comparison to a country with a much worse reputation on this front, is borne out when we look beyond headline figures, into specific elements of the social safety net.

What happens when you’re old? In the United States, the average social security check comes to 1,177$. In Israel, it is a flat 400$ [Heb], which is nowhere near the equivalent in terms of cost of living or average earnings. Medicare actually provides excellent healthcare for all Americans over 65. Israel’s elderly are covered just like everybody else, which means…

What happens when you’re sick? This is where Israel is supposed to come out ahead. And right now, it does. Here, everyone is covered, whereas tens of millions of Americans are uninsured. However, once the provisions of Affordable Care Act (ACA) fully kick in, in 2014 – assuming the law is not thrown out by the Supreme Court – the US will arguably have a better safety net, even in healthcare. Certainly, the countries will be going in completely opposite directions, as Israel’s deductibles and co-payments soar.

What happens...

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Isolation is the price of Netanyahu's electoral strategy

Matt Yglesias effectively refutes the argument that Netanyahu lacks a coherent strategy:

But I disagree with the following claim:

All of Netanyahu’s predecessors have pursued roughly the same policy. Some of them may have been willing to concede more territory, but not enough to substantially diverge from Netnayahu’s vision of Jewish Israeli dominance, or make a difference for Palestinians. Yet those leaders have managed to avoid regional isolation.

What has changed? First, the Arab spring (and the decades-long democratization of Turkey that preceded it) are making regional governments more responsive to the widespread resentment provoked by Israel’s policies. Second, Netanyahu’s government relies on parties – including Shas, Yisrael Beitenu, and Netanyahu’s own Likud– that owe their success to an electoral strategy of fomenting xenophobia and chauvinism. That entails adopting public stances which further alienate other peoples and governments in the region.

In other words, Netanyahu is willing the pay the price of regional isolation in order to maintain his electoral strategy, rather than his strategy towards the Palestinians. That is a key difference, and that makes it even less likely that he will show any flexibility.

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What is the anti-boycott law? Who does it affect?

Israel’s parliament, the Knesset, is set to pass (after some convoluted last minute wrangling) today one of the most anti-democratic measures in the country’s history, the so-called “Anti-Boycott Law.” A link to the full text’s translation can be found here.

Simply put, the law seeks to penalize those who call for boycotting Israel, the settlements, or anyone related to the occupation. If a person, for example, calls for a boycott of academic institutions that participate in the occupation, he could be sued in civil court, and ordered to pay compensation. If a company agrees not to purchase products manufactured in the settlements, it could be barred from government contracts. If an NGO joins the global BDS call, it could be stripped of its non-profit status, and compelled to pay taxes as if it was a commercial firm.

This law joins a long and ignominious list of legislative acts that have passed or been suggested in the past few years, that seek to reduce Israelis’ freedom of speech and assembly, and formalize discrimination of Palestinian Israelis. But it is also different from previously enacted legislation. Unlike the segregation law, it goes beyond enshrining an existing practice. And unlike the Nakba law, it will have a significant and immediate practical effect. As of today, a wide range of people and groups who once called for a boycott will cease doing so. The space for debate and discussion in Israeli society will shrink right before our eyes.

Although only a small minority of Israelis have expressed support for BDS (and I am not one of them), their voice has been significant. At the very least, some very prominent cultural figures have called for boycotting the settlements, and now, if they persist, they could be in serious financial trouble. In some ways, the law is actually more effective than applying a criminal sanction, which has to be enforced by overstretched (and skeptical) police and prosecutors, and meet high standards of evidence. Even if the law is eventually thrown out by the High Court of Justice, in the meantime, the very threat of myriad lawsuits by determined settlers and hard right groups is enough to deter many boycott supporters, who do not have the means to conduct expensive legal battles.

This law is outrageous and wrong on so many levels; it is hard to know where to...

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Israel policy myth #3: trying to stem a flood of migrants

To justify draconian and inhumane measures against refugees, the Israeli government claims the country is flooded by work migrants from impoverished countries. The facts do not bear this out, to put it mildly.

In Israel today, there are two classes of immigrants. One is composed of those who come under the Law of Return, which supposedly grants automatic citizenship for Jews and their immediate relatives (the myth surrounding this law will be discussed in the final installment of this series). The second class is composed, well, of everyone else.

How do they fare? Quite badly, in fact. Children who have lived in the country for the majority of their lives face deportation [Hebrew]. A mother of an infant child with Israeli citizenship nonetheless also faces deportation. Getting pregnant will cost you your visa [Hebrew], despite a High Court of Justice ruling that says otherwise (and see upcoming myth #9 on that). And soon, the first Israeli-only kindergartens in the country will be opened.

Refugees fare no better. A deaf Eritrean recently spent almost two years in jail, because his identity could not be verified. Some are imprisoned just because they require medical care, while others are incarcerated [Hebrew] without access to appropriate medical facilities. And the government is doubling down on this policy, building a huge new prison for refugees, with intentionally cramped conditions. Things have gotten so bad, that HIAS – an international Jewish organization working with asylum seekers – has scaled down its cooperation with the Israeli government [Hebrew], following a decision to arrest asylum seekers on the spot if their request is denied.

The myth of the flood

These draconian and inhumane measures are justified by the claim that Israel is flooded by work migrants from impoverished countries, who illegally enter the country and often put forward bogus claims of fleeing from persecution, in order to stay. The actual and potential numbers are so large, it is argued, that a myriad of ill consequences will follow if the tide is not stemmed: wages for low-skilled workers will be depressed, crime will soar, and the nature of the country will be irreversibly altered. The Interior Minister and his top immigration official have raised the stakes to the point of accusing NGOs assisting migrants and refugees of aiming to destroy Israel and Zionism.

The ugliness of this nativist rhetoric,...

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