Over the past several years, Israel’s Ministry of Justice has found itself a new angle for engaging in public diplomacy: defending some of the worst pieces of Knesset legislation, while celebrating whatever outcome the court hands down when they are challenged.
By Hagai El-Ad
Human rights are neither a theoretical concept nor a distant vision: for human beings, human rights are either a foundation for a just life – or, more often, humans are deprived of them. In such realities, the enumeration of rights becomes an enumeration of grievances. For human rights organizations, that enumeration of grievances becomes a workplan.
An essential component of that workplan is always the principle of speaking truth to power, and an examination of whether those who hold power over human beings are speaking the truth. We constantly ask ourselves: are we effective? Are we making a difference? What rights that went unfulfilled a year ago have become a reality this year?
Once every few years, that exercise of self-examination is performed by those with power: it is called the Universal Periodic Review, which examines the human rights performance of all 193 UN Member States. During most of 2013, Israel’s participation (or non-participation) in the UPR was a matter of some international contention. Eventually, Israel decided to take part. There are those who attribute little significance to what they perceive to be at most a public diplomacy document. However, I have carefully read Israel’s National Report, and listened attentively to the statements finally made in Geneva in October of 2013 by the high-ranking representatives of the Ministry of Justice on behalf of my country.
After all, it is between the pages of the National Report that human rights in general, and civil society’s work in particular, are described by those who hold power.
Consider these two following examples.
In section 76 of the National Report, one meets the children of East Jerusalem. Quoting from the report:
The Supreme Court ruled in February 2011 that every child in the eastern neighborhoods of Jerusalem must be able to register to an official public school in their residential area – or receive tuition reimbursement if forced to register at a private or unofficial school.
The Court ruled that improvements were necessary as “such a reality infringes on the constitutional rights of children in East Jerusalem to enjoy equality in education.” (H.C.J. 5373/08 Abu Labda et. al. v. The Minister of Education et. al. (6.2.2011)).
And in section 117 of the National Report, we meet the 1,708 asylum seekers detained at the time in the Saharonim prison in the south of Israel. Again, quoting from the report:
One significant example of the due seriousness in which Israeli authorities, including in particular the Israeli judiciary, take the need to ensure a delicate balance between human rights of migrants and state national interests, can be found in the High Court of Justice’s recent decision of 16 September, 2013. The High Court ruled in a petition filed by several NGOs, regarding the constitutionality of the Prevention of Infiltration Law (Offenses and Jurisdiction) (Amendment no. 3) 5772-2012. This amendment entered into force in January 2012, as a temporary provision. Under Section 30A of the Law, as amended, a person that enters Israel illegally can be held in detention for a period of up to three years, subject to certain exceptions. An extended panel of nine Judges ruled that holding persons for such a long period of time constitutes a material violation of their rights, including liberty and dignity, as enshrined in Basic Law: Human Dignity and Liberty, and is thus unconstitutional. The Court therefore annulled Section 30A of the Law. (H.C.J. 7146/12 Naget Serg Adam et. al. v. The Knesset et. al. (16.9.2013)).
Strong words, powerful examples. But is something missing in this picture?
First, it is perhaps worth mentioning that these examples proudly presented by the state did not just occur miraculously. These two cases were litigated by Association for Civil rights in Israel (ACRI) attorneys. Many other examples celebrated in the report were initiated and litigated by various Israeli human rights organizations, ACRI amongst them.
Secondly, it is certainly worth clarifying the self-proclaimed “due seriousness” with which the state attempts to ensure a proper human rights balance. In order to be able to express itself, civil society advocates have had to overcome none other than government policies and the legal arguments presented by the state, which try to justify these very policies.
In other words: if the state takes human rights so seriously, why wait for a civil society-initiated legal appeal?
And once such a case is brought forward – why fight it in court?
And once a decision is handed by the justices – why forget what a serious challenge it was for serious NGO lawyers to overcome state arguments in an attempt to convince the justices that they must intervene? How serious is it for the state to internationally celebrate its own court defeats?
In the case of education in East Jerusalem, the state’s response to the appeal was not “we agree.” Rather, the response came as a request to have the court reject the appeal, since some of the private schools the children were forced to attend were not licensed or properly recognized due to the lack of public classrooms. But one should appreciate the fact that it was the state that neglected to build enough classrooms in East Jerusalem in the first place. This is the same state that decides which private schools it licenses, recognizes, or rejects. With that in mind, doesn’t the state’s response amount to an attempt to completely wash its hands of the responsibility to provide education to all children in the city of Jerusalem? How serious or sincere is it to omit this fact?
And with regard to the 1,708 asylum seekers: in this case the state argued that the appeal was premature and hasty; that the legal venue was wrong; and finally, to the point – that the law detaining asylum seekers for at least three years was, indeed, constitutional. Further, as more and more often is the case, the High Court’s decision did not succeed in putting an end to the cruel imprisonment of asylum seekers. Months after the ruling, approximately a thousand refugees remained imprisoned. As if that wasn’t enough, during the early hours of International Human Rights Day (December 10, 2013), the Knesset approved a new version of the same law. Now, asylum seekers are subject to potential indefinite detention – in an “open facility” managed by the Israel Prison Service.
So how did the Ministry of Justice, on behalf of the state, respond when the new law was appealed? We already know how the story ends: while the Ministry of Justice once more decided to defend this cruelty, it will not hesitate celebrating whatever outcome the appeal will deliver. Constitutional or unconstitutional, eventually, the Ministry of Justice will internationally celebrate the ruling. Perhaps this is helpful for public diplomacy. But if the outcome doesn’t matter, how seriously does the Ministry of Justice take the issue of justice?
For justice to prevail, one needs to take a side, not occupy both. Justice is not two-faced. Consider the following: taking justice seriously is not about insuring that the “j” in “justice” is properly dotted; taking justice seriously is about humanity, decency and respect for human rights.
Hagai El-Ad is wrapping up his tenure as the head of the Association for Civil Rights in Israel (ACRI), and will soon go on to become the Executive Director of B’Tselem. The article is based on remarks made by the author on December 10, 2013 at the Hebrew University in Jerusalem.