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Racism in High Places
HERE RACISM takes root, it must be identified. Blindness to it is a common but dangerous blight. Equally common are the ploys used to excuse it.
The most recent decision of Israel's High Court of Justice, approving the "Law of Citizenship and Entry," is blighted with both racism and blindness to racism. Six justices, headed by Mishael Cheshin, supported the law. Five voted to strike it down. Of these opponents, only two related, in a gingerly matter, to the measure's racist motives.
The law's history may be traced to January 2002, when the then Minister of the Interior, Eli Yishai, ordered his legal department to find ways of reducing the number of "non-Jews" (read "Arabs") gaining citizenship, in order to protect the "Jewish character" of the State. A few months later Yishai found a pretext to freeze all applications for Family Unification: there had been a suicide bombing at a Haifa restaurant, and it turned out that a suspect's father had migrated to Israel from the Occupied Territories. (The mother, an Arab, was an Israeli citizen, so the suspect was in any case a citizen by birth.)
In May 2002 Yishai's freeze got the government's stamp of approval. Henceforth, where the Territories were concerned, no new applications for Family Unification would be accepted. The decision also applied to applications that had already been approved but were still in process. Here a word of clarification is due: in accordance with the draconian procedures in force before 2002, even after applications were approved, the member of the couple who came from the Territories did not receive a permanent standing in Israel until he or she had undergone a long testing period, involving various types of temporary permits. The new governmental decision ordained that the standing of such a person should not be "enhanced." That is, he would not receive a better permit than the one held before the decision – much less permanent standing in Israel!
As part of its effort to gain the government’s approval, the Interior Ministry gave a slide presentation, including (1) calculations of the huge number of Palestinians who might gain Israeli citizenship through Family Unification; (2) the shenanigans by which the procedure might be exploited to bring about Palestinian immigration; and (3) the vast sums that such new residents might be expected to drain from the state in the form of welfare payments.
In July 2003 the Knesset fortified the government decision by passing the aforesaid "Law of Citizenship and Entry." It removed the Interior Minister's discretionary power to allow West Bankers or Gazans to sojourn in Israel. The new law applied to all kinds of entry into the state, although temporary exceptions were allowed. The clear purpose was to keep Palestinians from gaining permanent residence within the framework of Family Unification.
The Knesset passed this Citizenship Law as a temporary measure. In the course of its renewals, modifications have been introduced. An exception was made for minors under 14 in the custody of an Israeli parent. The Knesset allowed the granting of temporary permits, for the sake of Family Unification, to male residents of the Territories who are over 35 and to females over 25. These exceptions will not be made, however, in cases where the General Security Services have determined that any members of the applicants' extended families or their spouses "might constitute a security threat to the State."
URING THE course of 2003, people harmed by the Citizenship and Entry Law petitioned the High Court to strike it down. They were joined by ten Knesset members and three human-rights organizations (Adalah, the Association for Civil Rights in Israel, and HaMoked, the Center for the Defence of the Individual). In the decision we are discussing, the petitions were rejected.
Among the judges in the minority was High Court President Aharon Barak. In his opinion, Barak holds that the law damages the right to family life, a constitutional right. Although Israel lacks a constitution, it has a series of so-called Basic Laws. The right to family life is not explicitly mentioned in the Basic Laws, but it is anchored, Barak maintains, in the right to human dignity (which is explicit). His argument is that most human beings realize themselves within the framework of the family. The constitutional right to a family life includes, he says, the citizen's right to realize that life within the state of his citizenship, even if he marries a foreigner. The right to equality is also damaged by the Citizenship law, wrote Barak, because its effect (if not its intent) is to discriminate between the state's Jewish and Arab citizens, since only the latter marry people from the Territories.
In an earlier case – that of the separation barrier – Barak accepted the claim that the aim was one of security, not politics. In the same way, he shut his eyes to the Citizenship Law's demographic goals and their racist underpinnings. He accepted the "argument from security," although he ruled, in the end, that the security benefit does not outweigh the damage to human rights.
The argument from security goes as follows. Applicants from the Territories constitute a risk. Their ties with friends and family make them easy targets for mobilization by Palestinian organizations. An Israeli identity card, once attained, enables free, unsupervised passage between the Territories and Israel. It transforms its holder into a valued asset in the eyes of the militants, especially now that the separation barrier is going up.
The court sought to clarify whether there is a factual basis to this argument. Of the people from the Territories, how many recipients of Israeli citizenship have taken part in attacks? The data produced by the state were as follows. Of the 130,000 who have received a standing in Israel under Family Unification since 1994, 26 have been interrogated under suspicion of involvement in attacks. No information was given as to the nature of the involvement or the results of the interrogations.
Barak found the potential security danger to be disproportional as compared with the damage to human rights. In his words: "The addition to security achieved by neglecting individual checking and passing to a total ban brings damage so severe to the family life and the equality of many thousands of Israeli citizens that the transition is disproportional. A democracy does not behave in this way. A democracy does not impose a total ban, separating its citizens from their spouses, preventing them from living a family life; a democracy does not impose a total ban, facing its citizens with the option of living in it without the spouse or leaving the state in order to conduct a proper family life; a democracy does not impose a total ban that separates parents from children; a democracy does not impose a total ban that discriminates between its citizens concerning the realization of family life. Rather, a democracy gives up a certain amount of additional security in order to achieve an immeasurably larger amount of family life and equality. That is how a democracy behaves in a time of peace and quiet. And that is how a democracy behaves in a time of fighting and terror. Precisely in such difficult times is the power of democracy revealed."
For all Barak's eloquence, he did not penetrate to the racist motives behind the security argument. One Justice who did so was Ayala Procaccia. She held that in the light of the law's history and its provisions, which are sweeping only where Family Unification is concerned, the security claim is questionable. It is difficult to shake off the impression, she remarked, that a great deal of weight has been given to demographic considerations.
Justice Procaccia also cautioned the court against following in the wake of its American counterpart, which, she wrote, in "one of the darkest episodes in the constitutional history of the Western countries," approved the detention of thousands of US citizens during World War II because they were of Japanese descent. The logic behind that decision, she said, was very like the security argument offered by the state in the present instance: the state suspects that the loyalty of those citizens to their ethnic group will supersede their loyalty to the state, when there is no way of telling in advance who will cross the lines.
Justice Esther Hayut likewise cautioned against harmful legislation based on hysteria. "Terror in the face of terrorism, like all terror, is liable to be a dangerous guide to the legislator when he seeks to cope with its instigators. It may cause democracy to transgress its limits and be dragged into setting 'wide margins' for security needs, amid unwanted, disproportional damage to the human rights of citizens and residents who belong to a minority group in the state."
Before we pass to the majority decision, we should note an interesting comparison drawn by Justice Barak. The state must take risks, he held, including the risk of loss of life. He compared this to the campaign against traffic accidents (one could save potential victims by a total ban on driving). Barak stopped short, however, of explaining why the government bans all Family Unification in the case of Palestinians, while it does not ban all driving. The reason, of course, is that the price of a general ban on driving would be paid by all members of society, whereas the price of banning Family Unification is paid only by a marginalized minority.
HE WARNINGS, then, were voiced. Nevertheless, the majority of the justices joined in the decision of Justice Cheshin, which reflected racism and hysteria.
The people of the Occupied Territories – people whom Israel made dependent on itself in the decades after 1967 (they were its main source of manual labor and second export market) – become, in Cheshin's decision, residents of a foreign country or "hostile entity." They are "enemy subjects." A war (or "quasi-war") is underway between Israel and the Palestinian Authority, and this war is a matter of life or death. Cheshin makes no attempt to take an objective view on a dispute between two collectives, in which a Palestinian may be expected to feel solidarity with his people (like Esther in the palace of Ahasuerus). Instead, he bruits proclamations demonizing the whole group. It is not that Israel conquered and occupied the Territories, rather "we are embroiled in a war that's been thrust on us by the Palestinians." In this war, the Palestinians do not scruple to use the dirtiest, most murderous and merciless methods – and all with the backing of a broad population.
From here it is a short way to determine that the law proceeds from considerations of security and that these should have absolute weight for the sake of saving Israeli lives. Cheshin's argument centers on this, but the odor arising from his decision is foul. True, national collectives do confront each other here. The responsibility of those in high places, however, is to ward off the racism nourished by such confrontations – not to be swept into hysterical decisions overriding human rights.
The High Court decision was given on May 14, 2006, the 58th anniversary of the founding of the State of Israel and the signing of its Declaration of Independence. The state, we read there, "will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture," and it will grant its Arab inhabitants "full and equal citizenship and due representation in all its provisional and permanent institutions." Under this impressive rhetoric, Israel proceeded in 1948 to engage in ethnic cleansing. The few Palestinians who remained within its boundaries were put under military rule. Since then many years have passed. The baobab trees of racism have sprouted all over our little asteroid, growing as big as castles, leaving less and less room for the rhetoric of justice, freedom and equality.
"To preserve the Jewish and democratic character of the state"
One often hears this slogan from the mouths of Israel's politicians. Logically, however, a state cannot be both Jewish and democratic. Any law that attempts to guarantee a Jewish majority must necessarily discriminate against non-Jews.
Israel's Nationality Law (1952) is a case in point. Where immigrants are concerned, Jews receive citizenship automatically; non-Jews receive it only at the discretion of the Minister of the Interior. In practice, the existence of a Jewish majority has led to discrimination against Arabs in all walks of life. The law's most direct adverse effect, however, has been on Arab citizens who marry Arabs from elsewhere. Until recently, the outsider in the couple could seek citizenship under a program known as "Family Unification." The process typically lasted about four years, during which the authorities investigated every possible factor, security or criminal, which might provide grounds for denial. From 1994 until 2002, according to the Interior Ministry, about 130,000 Palestinians from the West Bank and Gaza stood at various stages toward achieving Israeli citizenship through Family Unification.
Despite the Nationality Law, and despite a huge influx of Soviet Jews in the 1990's, the proportion of Arabs living in Israel has continued to mount. It now stands at almost 20% of the 7 million Israelis. (The figure includes ca. 250,000 Palestinians from East Jerusalem, who have the status of permanent residents). In the face of this demographic pressure, the logical contradiction between "Jewish state" and "democracy" has become more blatant.
On July 31, 2003, the Knesset passed a temporary but renewable measure, called the "Law of Citizenship and Entry," denying citizenship to all applicants who are spouses of Israelis if these applicants come from the West Bank or Gaza. Human rights organizations challenged the measure in the High Court of Justice (Bagatz), but in May the justices upheld it by a vote of 6 to 5. On June 25, 2006, the government extended the measure for six months. The Knesset is expected to approve. The government has also announced that it will draw up a new law. Parts of the present one will likely be incorporated in it.
Nowhere is the contradiction between "Jewish state" and "democracy" so patent – and nowhere is it clearer which concept wins – as in the verbal contortions of Israel's High Court. Attorney Yossi Wolfson traces them below.