This work intends to show how civil and political rights in Israel and the Occupied Territories are regulated, which normative standards and spiritual sources nourish them, and how written and unwritten principles are applied and interpreted by the Supreme Court of Israel in pursuance of its self-imposed duty to safeguard the individual's rights and freedoms.
The legal system of Israel reflects unresolved conflicts, ambiguities of the state and difficulties connected with the process of nation-building as well as dilemmas concerning the ethnic and cultural identity of the population. From 1517 until 1917 Palestine was ruled by the Turks as part of the Ottoman Empire.
In 1917 British troops conquered the territory and in 1922 the League of Nations granted to Great Britain the Mandate over Palestine. Following the establishment of the state of Israel in Palestine on 14 May 1948 a large number of British mandatory legislation was absorbed into Israel's legal system. This had and still has far-reaching, restrictive implications for the areas of administrative law and the field of human rights and freedoms.
The British mandatory legislation includes security legislation - such as the Defence (Emergency) Regulations, 1945 - which empowers military commanders as well as the entirely executive branch of the government to impose severe restrictions on fundamental rights and freedoms.
Despite the enactment of two basic laws on human rights in 1992 many areas, such as personal freedom, freedom of speech and the right of association and assembly are still regulated mainly by British colonial legislation that was never revoked after the establishment of the state of Israel.
Since 1948 a permanent state of emergency is in force in Israel. This entitles the government to apply the inherited British mandatory security legislation as well as the own, by the Israeli parliament enacted emergency regulations.
Israel's legal system has been built upon the duality of secular and religious law - a concept that was inherited from the Ottoman Millet tradition, first by the British mandatory government and then by the state of Israel.
This study also includes important laws and Supreme Court judgments concerning civil and political rights that relate directly or indirectly to the territories occupied by Israel in the course of the war in June 1967.
TABLE OF CONTENTS
Acknowledgments
Abbreviations
Glossary
Preface
Introduction
A.. HISTORICAL PERSPECTIVES regarding THE RIGHT TO SELF-DETERMINATION OF THE JEWISH AND THE PALESTINIAN ARAB PEOPLE
1... Introduction
2... Ideology and Doctrines of the Concept of Political Zionism
3... Sources of the Concept of Political Zionism
3.1. The Basle Programme - Declared in
3.2. The Balfour Declaration of 2 November
3.3. The Mandate for Palestine - Granted to Great Britain in
3.3.1.. General Remarks
3.3.2.. What is the "Self" of a Nation and Who has the Right to Express its Will?
3.3.3.. US President Woodrow Wilson's "Fourteen Points", 1919 and The Mandate for Palestine, 1922: Self-Determination For Whom?
3.4. The Biltmore Programme - Established in
3.5. The Jerusalem Programme - Established in
3.6. Revision of the Jerusalem Programme in
4... Establishment of "Jewish National Institutions" by the Zionist Movement
4.1. Introduction
4.1.1.. The Fundamental Principle of "Inalienability of Land"
4.1.2.. The Fundamental Principle of "Jewish Labour"
4.1.3.. The "Jewish National Institutions" and their Significance for the State of Israel
4.2. The World Zionist Organization (WZO) - Established in
4.3. The Jewish Agency (JA) - Established formally in 1922 -
Constituted in
4.4. The Jewish National Fund (JNF) - Established in
5... Palestinian Arab Opposition to Political Zionism in the 1920's and 1930's: Major Events Leading to the Rejection by the Palestinian Arab People of the United Nations General Assembly Resolution 181 (II) of 29 November
5.1. The Period from 1880 until
5.1.1.. The Henry McMahon - Sharif Hussein Correspondence (1915 - 1916)
5.1.2.. The King-Crane Commission - Established in August
5.2. The Disturbances in Palestine in the Years 1920, 1921, 1925 and
5.2.1.. The Shaw Commission - Established in
5.2.2.. The Hope Simpson Report - Published in October
5.2.3.. The Passfield White Paper - Published in October
5.2.4.. The Ramsay MacDonald Letter - Issued in
5.3. The General Strike in 1936 and the Open Rebellion from 1936 to
5.3.1.. The Royal (Peel) Commission - Established in
5.3.2.. The MacDonald White Paper - Issued in
5.4. The Period from 1940 until the Adoption of the United Nations General Assembly Resolution 181 (II) of 29 November
5.5. The Period after the Adoption of the United Nations General Assembly Resolution 181 (II) of 29 November 1947 until the Signment of Armistice Agreements in
6... Summary and Conclusions
B Israel's Initial Obligations TO ENACT A CONSTITUTION INCLUDING A BILL OF HUMAN RIGHTS AND THE ISSUE OF JUDICIAL REVIEW
1... Introduction
2... The Role of the Israeli Supreme Court in the Sphere of Civil and Political Rights
2.1. General Remarks
2.2. The Institutional Organization of Israel's Judicial System
2.2.1.. General/Civil/Regular Courts of Law
2.2.2.. Tribunals and Authorities Vested with Judicial Powers
2.3. The Supreme Court of Israel
2.3.1.. The Jurisdiction of the Supreme Court
2.3.2.. Judicial Activism and Judicial Restraint
2.3.3.. The Normative Status of Human Rights Case Law
2.3.4.. Summary and Conclusions
3... The Nature and Legal Status of the Declaration of the Establishment of the State of Israel,
3.1. General Remarks
3.2. Supreme Court Jurisprudence
3.2.1.. The Declaration of the Establishment of the State of Israel - Considered as "Political Instrument"
3.2.1.1.. Zvi Zeev v. Gubernik (1948)
3.2.1.2.. El-Karbutli v. Minister of Defence (1948)
3.2.2.. The Declaration of the Establishment of the State of Israel - Considered as "Instrument of Interpretation"
3.2.2.1... Kol Ha'am Company Limited v. Minister of Interior (1953)
4... Israel's Obligation to Enact a Constitution including a Bill of Rights as Requested by the Declaration of the Establishment of the State of Israel,
4.1. The Elections to the Constituent Assembly and its Transformation into "The First Knesset"
4.2. The Harari Resolution - Adopted in
4.3. Arguments Raised Against the Enactment of a Constitution including a Bill of Rights
4.3.1.. General Remarks
4.3.2.. The View of David Ben Gurion
4.3.3.. The View of the Religious Parties
4.3.4.. Other Arguments Raised Against the Enactment of a Constitution including a Bill of Human Rights
4.4. The Power of the Knesset to Enact a Constitution
4.4.1.. Background
4.4.2.. The Opinion of Legal Scholars
4.4.2.1 Professor Melville B. Nimmer's Opinion
4.4.2.2... Professor Claude Klein's Opinion
4.4.2.3.. Professor Amnon Rubinstein's Opinion
4.4.2.4. Professor Eliahu Likhovski's Opinion
4.5. Summary and Conclusions
5... The Attitude of the Israeli Supreme Court towards Judicial Review of Primary Legislation of the Knesset in Human Rights Cases
5.1. Background
5.2. Initial Arguments and Reasons for the Objection to Judicial Review
5.2.1.. The Doctrine of Sovereignty of the Israeli Parliament
5.2.2.. The Principles of Separation of Powers and Democracy
5.2.2.1 Leon v. Gubernik (1948)
5.2.2.2... Other Decisions and Arguments of the Supreme Court
5.3. First Steps towards Judicial Review over Primary Legislation: Entrenched Clauses in Basic Laws
5.3.1.. The Basic Law: The Knesset (1958)
5.3.2.. Bergman v. Minister of Finance (1969)
6... Normative Relationship between Basic Laws and Regular Laws
7... The Enactment of two Basic Laws on Human Rights in 1992 and Their Impact on the Israeli Legal System
7.1. General Remarks
7.2. The Basic Law: Human Dignity and Freedom, 1992 (Amended in 1994)
7.3. The Basic Law: Freedom of Occupation, 1992 (Re-enacted in 1994)
8... United Mizrahi Bank v. Migdal Cooperative Village (1995)
8.1. General Remarks
8.2. The Facts of the Case
8.3. The Decision of the District Court
8.4. The Decision of the Supreme Court
8.4.1.. The Opinion of Supreme Court President Barak
8.4.1.1. The Knesset’s Authority to Enact a Constitution
8.4.1.2. Kelsen's Basic Norm or "Grundnorm" Model
8.4.1.3 Hart's "Rule of Recognition" Model
8.4.1.4 Dworkin's Empirical Model
8.4.2.. The Opinion of Supreme Court Justice Shamgar
8.4.3.. The Opinion of Supreme Court Justice Cheshin
8.4.4.. The Opinion of Supreme Court Justice Bach
8.5. The Significance of the United Mizrahi Bank Case
9... Conclusions and Recommendations
C.. THE CONCEPT OF THE STATE OF ISRAEL AS A "JEWISH STATE" AND ITS IMPACT ON THE RIGHT TO EQUALITY AND OTHER CIVIL AND POLITICAL RIGHTS
1... Introduction
2... The Relationship between State and Religion in Israel
2.1. General Remarks
2.2. The Ottoman Millet System and Its Adoption by the British Mandatory Regime and the Israeli Government
2.2.1.. The Ottoman Period
2.2.2.. The British Mandatory Period
2.2.3.. The Establishment of the State of Israel
2.3. Historical Background of the "Status Quo" Arrangement
2.3.1.. The Doctrine of Ultra-Orthodox Judaism and its Original Position towards Political Zionism
2.3.2.. The Changing Position of Ultra-Orthodox Judaism towards the Concept of Political Zionism
2.4. The Present Importance of the "Status Quo" Arrangement
2.5. The Nature of Religious Law in Israel's Legal System
2.5.1.. General Remarks
2.5.2.. The Question of the Legal Nature of Canon Law
2.5.3.. The Nature of Jewish Law
2.6. Historical Background regarding the Position of Jewish Law in Israel's Legal System
2.7. The Official and Actual Position of Jewish Law in Israel's Legal System
3... The Concept of Israel as a "Jewish State" and its Impact on the Right to Equality and Minority Rights
3.1. General Remarks
3.2. The Impact of the "Jewish State" Concept on the Right to Equality and Palestinian Arab Minority Rights
3.2.1.. The Absence of a Constitutional and Ordinary Law Protecting the Right to Equality and Minority Rights and The Non-Recognition of the Arab Community in Israel as National (Palestinian) Minority
3.2.2.. The Flag and Emblem Law,
3.2.3.. The National Anthem of Israel
3.2.4.. The State Stamp Law,
3.2.5.. The Days of Rest Ordinance,
3.2.6.. The Martyrs and Heroes Remembrance Day Law,
3.2.7.. The Yad Yitzhak Ben-Zvi Law, 1969 and
.. The Mikve Yisrael Agricultural School Law,
3.2.8.. The State Education Law,
3.2.9. The Broadcasting Authority Law,
3.2.10. The Chief Rabbinate of Israel Law, 1980 and
The Kashrut (Prohibition of Deceit) Law,
3.2.11. The Foundations of Law Act,
3.2.12.. Other Legislation
3.3. The Impact of the "Jewish State" Concept on Jurisprudence relating to the Right to Equality and Minority Rights for Palestinian Arab Citizens in Israel
3.3.1.. Abu-Gosh v. Minister of Education and Culture (1971)
3.3.2.. Watad v. Minister of Finance (1983)
3.3.3.. Adalah & Others v. Minister of Religious Affairs & Others (1998)
3.3.4.. Follow-Up Committee for Arab Education in Israel & Others v. Ministry of Education & Others (1997)
4... The Concept of Israel as a "Jewish State" and its Impact on the Right to Citizenship and Nationality
4.1. General Remarks
4.2. The Impact of the "Jewish State" Concept on Legislation relating to the Right to Citizenship and Nationality
4.2.1.. The Law of Return, 1950 and The Nationality Law,
4.2.1.1. Acquiring Citizenship by Return
4.2.1.2... Acquiring Citizenship by Residence
4.2.1.3... Acquiring Citizenship by Birth
4.2.1.4. Acquiring Citizenship by Naturalization
4.2.2.. Conclusions
4.3. The Impact of the "Jewish State" Concept on Jurisprudence relating to the Right to Citizenship and Nationality
Al-Jalil v. Minister of Interior (1952)
Al-Rachman v. Minister of Interior (1951) and Bader v. Minister of Interior (1952) -
Al-Rachman v. Commander of Yagur Prison (1954) and Bader v. Minister of Police (1954)
5... The Concept of Israel as a "Jewish State" and its Impact on the Right to Association
5.1. General Remarks
5.2. The Impact of the "Jewish State" Concept on Legislation and Jurisprudence relating to the Right to Association
5.2.1.. The Prevention of Terrorism Ordinance,
5.2.2.. The Penal Law,
5.2.3.. The Non-Profit Societies Law,
5.2.4.. The Political Parties Law,
5.2.5.. The Defence (Emergency) Regulations,
5.2.5.1 Jiryis v. District Commissioner of Northern District (1964)
6... The Concept of Israel as a "Jewish State" and its Impact on the Right to Political Participation
6.1. General Remarks
6.2. The Impact of the "Jewish State" Concept on Legislation and Jurisprudence relating to the Right to Political Participation
6.2.1.. The Period from 1949 to
6.2.1.1... Yeredor v. Central Elections Committee for the 6th Knesset (1965)
6.2.1.2. Neiman v. Central Elections Committee for the 11th Knesset (1984)
6.2.2.. The Basic Law: The Knesset (Amendment No. 9) (1985)
6.2.2.1 Ben-Shalom v. Central Election Committee for the 12th Knesset (1988)
6.2.3.. The Political Parties Law,
6.2.3.1... Ganem Yaseen v. Yamin Israel (1995)
7... Summary and Conclusions
D.. ISRAEL'S PERMANENT STATE OF EMERGENCY AND THE QUESTION OF ITS COMPATIBILITY WITH THE CONCEPT OF A LIBERAL DEMOCRACY BASED ON HUMAN RIGHTS AND FREEDOMS
1... Introduction
2... Theoretical Discussion of "National Security" and "Liberal Democracy"
3... Israel's Concept of "State Security" and the Question of its Compatibility with the Ideas of a "Liberal Democracy and Human Rights"
3.1. Ideological Foundations of Israel's Concept of "State/National Security"
3.2. The Concept of Balancing Interests in "Security Matters"
3.3. Israel's Rules of Evidence in "Security Matters"
3.4. Israel's Permanent State of Emergency: Legal Sources and Justifications
4... Israel's Formal "Security" and "Emergency" Legislation: Legal Sources and Justifications
4.1. Background
4.2. British Mandatory "Emergency" Legislation
4.3. Israeli "Security" and "Emergency" Legislation
4.3.1.. "Emergency" Legislation Enacted by Israel's Parliament
4.3.2.. "Emergency" Legislation Based on: The Law and Administration Ordinance, 1948 and The new Basic Law: The Government (1992)
5... The British Mandatory Defence (Emergency) Regulations,
5.1. Historical Background and Normative Nature of the British Defence (Emergency) Regulations,
5.2. The Validity and Scope of Application of the British Defence (Emergency) Regulations, 1945 within Israel since
5.2.1.. The Validity of the Defence (Emergency) Regulations,
5.2.2.. Challenges to the Validity of the Defence (Emergency) Regulations,
5.2.2.1. Herzl Kook v. Minister of Defence (1948)
5.2.3.. The Defence (Emergency) Regulations, 1945 as Legal Basis for the System of Military Government within Israel from 1948-
5.2.3.1... General Overview
5.2.3.2. The Military Government's Systematic Violation of the Civil and Political Rights of the Palestinian Arab People (1948-1966)
5.2.3.3. The Role of the Israeli Supreme Court in the Context of the Military Government
5.2.3.4. Summary and Conclusions
5.3. The Validity and Scope of Application of the British Defence (Emergency) Regulations, 1945 within the Occupied Territories since
6... Conclusions
7... Recommendations
E.. The Administrative, Legal and Judicial System in the Occupied Territories
1... Introduction
2... The Administrative System in the Occupied Territories since
2.1. The Period from 1967 until
2.2. The Establishment of a "Civil Administration" in
2.3. Israel's Understanding of "Security Matters" ?
2.4. The Establishment of Jewish Settlements in the Occupied Territories
2.4.1.. General Remarks
2.4.2.. The Allon Plan and Labor Settlement Plan
2.4.3.. The Gush Emunim Settlement Plan
2.4.4.. The Suburbia Settlement Plans
2.5. Israel's Methods and Justifications for the Expropriation and Restriction on the Use of Occupied Palestinian Land
2.5.1.. General Remarks
2.5.2.. Military Orders and other Normative Sources concerning Expropriations
.. of Land in the West Bank
2.5.2.1.. Declaration of Occupied Land as "Absentees' Property" -
... Military Order No. 58,
2.5.2.2. "Requisition" of Occupied Land for "Military Purposes" -
... Hague Regulations,
2.5.2.3. Declaration of Occupied Land as Israeli "State Land" -
... Military Order No. 59, 1967 and Military Order No. 291,
2.5.2.4... Expropriation of Occupied Land for "Public Purposes" -
... Military Order No. 321,
2.5.3.. Military Orders and other Normative Sources concerning the Restriction
.. on the Use of Land in the West Bank
2.5.3.1.. Declaration of Occupied Land as "Combat Zones" -
... Military Order No. 271,
2.5.3.2 Declaration of Occupied Land as "Closed Areas" -
... Military Order No. 378,
2.5.3.3 Declaration of Occupied Land as "Nature Reserves" -
... Military Order No. 363,
2.5.3.4 Prohibition of Construction on Occupied Land -
... Military Order No. 393,
2.5.4.. Israel's Settlement Policy in Jerusalem
2.5.5.. Settlement and By-Pass Roads in the West Bank
3... The Legal and Judicial System in the Occupied Territories since
3.1. Israel's Approach towards the Application of International Law in the Occupied Territories
3.2. Legal Dualismus and Apartheid in Israel and the Occupied Territories
3.3. The Questionable Role of Israel's Supreme Court
4... the impact of the Oslo I and ii Agreements signed in 1993 and 1995 on the occupied territories
5... Conclusions
F.. THE RIGHT TO FREEDOM OF EXPRESSION, SPEECH AND THE PRESS
1... Introduction
2... Jurisprudence
3... Licensing of Newspapers and the Printing Press
3.1. Statutory Provisions
3.1.1.. The Press Ordinance,
3.1.2.. The Defence (Emergency) Regulations,
3.2. Supreme Court Cases concerning Section 19(2) of the Press Ordinance,
3.2.1.. Kol Ha'am Company Limited v. Minister of Interior (1953)
3.2.2.. Omar International Inc. NY v. Minister of Interior (1981)
3.3. Supreme Court Cases concerning Regulation 94(2) of the Defence (Emergency) Regulations,
3.3.1.. Adoption of a Strong Legal Formalistic and Positivistic Approach
3.3.2.. El-Ard v. District Commissioner (1964)
3.3.3.. Al Assad v. Minister of Interior (1979)
3.3.4.. Makhoul v. Jerusalem District Commissioner (1981)
4... Censorship
4.1. Philosophical and Historical Dimensions of Censorship
4.2. Statutory Provisions for Military Censorship
4.2.1.. The Defence (Emergency) Regulations,
4.3. The Censorship Agreement between the Editors' Committee and the Israel Defence Forces (IDF)
4.4. Supreme Court Cases concerning Military Censorship
4.4.1.. Hadashot v. Minister of Defence (1984) - "The Bus No. 300 Affair"
4.4.2.. Schnitzer v. Chief Military Censor (1988)
4.5. Self-Censorship Imposed by Newspapers Editors
4.6. The Prior Clearance Arrangement
44.6.1.. Cohen v. Minister of Defence (1962)
4.7. Foreign Press and Journalists
5... The Israeli Broadcasting Media - Radio and Television
5.1. Statutory Provisions
5.1.1.. The Broadcasting Authority Law,
5.1.2.. The Second Television and Radio Broadcast Authority Law,
5.2. Supreme Court Cases concerning Israel's Broadcasting Authority (IBA)
5.2.1.. Zichroni v. Broadcasting Authority (1982)
5.2.2.. Kahane v. Broadcasting Authority (1985)
6... Conclusions
7... Recommendations
G. THE RIGHT TO PROPERTY
1... Introduction
2... Israel Since
2.1. General Remarks
2.2. Declaration of Palestinians as "Absentees" and Confiscating their Land and Movable Property
2.2.1.. The Emergency Regulations (Absentees' Property), 1948 and The Absentees' Property Law,
2.2.2.. Main Features and Institutions Involved in the Context of the Application of the Absentees' Property Law,
2.2.2.1... The Custodianship Council for Absentees' Property
2.2.2.2... The Development Authority
2.2.2.3 The Jewish National Fund (Keren Kayemet Le-Israel)
2.2.3.. Jurisprudence regarding "Absentees' Property" Cases
2.2.4.. The Creation of so called "Present Absentees"
2.2.4.1 Statutory Provisions
2.2.4.2.. Jurisprudence regarding "Present Absentees"
2.2.5.. The Klugman Report - Published in
2.3. Requisition of Private Land and Houses during an Officially Proclaimed "State of Emergency" for the Purposes of "State Security" and "Essential Services"
2.3.1.. The Emergency Regulations (Requisition of Property), 1948 and The Emergency Land Requisition (Regulation) Law,
2.3.2.. Jurisprudence regarding Land Requisition in a "State of Emergency" for the Purposes of "State Security"
2.4. Declaration of Land as "Closed Areas" and the Creation of the so called "Uprooted Villages"
2.4.1.. Regulation 125 of the British Mandatory Defence (Emergency) Regulations,
2.4.2.. Supreme Court Cases concerning Regulation 125 of the Defence (Emergency) Regulations,
2.4.2.1 Asslan & Others v. Military Governor of Galilee (1951)
2.4.2.2. The Establishment of Military Firing Ranges in the al-Roha Area of Wadi Ara and in Umm al-Fahem (1976, 1985 and 1998)
2.5. Declaration of Land as "Security Zone " and Confiscating this Land
2.5.1.. The Emergency Regulations (Security Zones),
2.5.2.. Supreme Court Cases concerning the Emergency Regulations (Security Zones),
2.5.2.1 Daoud & Others v. Minister of Defence & Others - First Case (1951)
2.5.2.2. Daoud & Others v. Security Zones Appeal Committee, Office of the Military Governor of the Galilee - Second Case (1951)
2.5.2.3. Committee of Displaced Persons from Ikrit & Others v. Minister of Defence - Third Case (1981)
2.6. Declaration of Land as "Waste Land" and Confiscating this Land
2.6.1.. The Emergency Regulations (Cultivation of Waste Lands),
2.6.2.. Supreme Court Cases concerning the Emergency Regulations (Cultivation of Waste Lands),
2.7. Legalization of Actions by Means of "Transfer of Ownership" of Land
2.7.1.. The Land Acquisition (Validation of Acts And Compensation) Law,
2.7.2.. Supreme Court Cases concerning the Land Acquisition (Validation of Acts And Compensation) Law,
2.8. Expropriation of Land for "Public Purposes"
2.8.1.. The Land (Acquisition for Public Purposes) Ordinance,
2.9. Israel's System of Ownership and Administration of Land
2.9.1.. The Basic Law: Israel’s Land (1960)
2.9.2.. The Israel Land Administration Law,
2.9.3.. The Agricultural Settlement (Restrictions on Use of Agricultural Land and of Water) Law,
2.9.4.. The World Zionist Organization (WZO) and Jewish Agency (Status) Law,
2.9.4.1 General Remarks
2.9.4.2 The Covenant between the Israeli Government and the WZO
2.9.4.3. The Covenant between the Israeli Government and the JA
2.9.4.4.. Ka'adan v. Israel's Land Administration (1995)
3... Summary and conclusions
h. summary and final conclusions
.. APPENDICES
.. Appendix
... Basic Law: Human Dignity and Freedom (1992)
.. Appendix 2a
... Basic Law: Freedom of Occupation (1994)
.. Appendix 2b
... Basic Law: Freedom of Occupation (1992)
.. Bibliography
.. Table of Cases
.. Table of Legislation and Legal Materials
.. Documents - Press Releases - Reports
.. Maps and Photos
ABBREVIATIONS
illustration not visible in this excerpt
GLOSSARY
Aliyah Literally "Ascent"; aliyah means the return of an individual or an organized group to the Land of Israel; considered as a major Zionist virtue.
Amal Shi'a militia fighting against Israel's occupation in South Lebanon.
Ashkenazim Jews of north European and western origins; usually contrasted with "Oriental" Jews, or Sephardim.
dunam 1 dunam = 1/4 of an acre. 1000 dunams is 1 sq.km.
Eretz Israel Literally "the land of Israel".
Etzel See IZL
Gahal "The Herut-Liberal Bloc"; a political alliance formed between the two parties before the elections to the Knesset in 1965.
Haganah Literally "Defense", the Haganah was a defense organization founded in 1920; after the establishment of the state of Israel the Haganah became the Tzahal, the Israel Defense Force (IDF).
Halakha Jewish religious law
Harem esh Sherif Arab term for the Temple Mount and the site of the
(Noble Sanctuary) Al-Aksa Mosque, and the Dome of the Rock.
HaPraklit Law Journal published by the Israel Bar Association.
Herut "Freedom"; a right-wing political party established in 1948 by Menachem Begin; key party in Gahal and Likud.
Hizbullah Armed Lebanese Shia militia fighting against Israel's occupation in South Lebanon.
Intifada Arab term for the Palestinian uprising in the West Bank and Gaza, which started in December 1987.
Iyunei Mishpat Tel Aviv University Law Review
IZL Jewish underground military organization which is also known as the Irgun or Etzel; Menachem Begin, Prime Minister of the State of Israel from 1977-1983, had commanded IZL.
Jewish Agency The Mandate for Palestine given to Britain in 1920 provided for the establishment of a Jewish Agency that would represent the Jewish people before the mandatory government; Article 4 of the Mandate for Palestine (adopted in 1922) gave the World Zionist Organization the status of a Jewish Agency; was the main political body of the "Yishuv".
Jewish National Fund see Keren Kayemet Le'Israel
Kach Literally "Thus! or This is the Way!" Rabbi Meir Kahane's racist and anti-Arab political movement which called for the use of violence against Arabs; is the Israeli successor of the American Jewish Defense League (JDL) which is classed by the FBI as terrorist organization; was outlawed as terrorist organization by Israel's government only in February 1994.
Keren Hayesod Literally "Basic Fund". Main financial institution of the World Zionist Organization and later of the Jewish Agency; was founded in 1920.
Keren Kayemet Le'Israel A fund, based on contributions, was established in 1901 by the World Zionist Organization (WZO).
Knesset Israeli Parliament.
LHI (Lehi) Jewish underground military organization; is also known as Lehi or Stern Gang; Yitzhak Shamir, Prime Minister of the State of Israel from 1983 to 1984 and from 1986 to 1992, was one of the leading figures of this organization.
Likud (Unity) Right-wing political bloc; formed in 1973 of Gahal and smaller groups; dominated by Herut; in control of the Israeli government from 1977 to 1992 and 1996 to 1999.
Mapai "Mifleget Poalei Eretz Yisrael"; a Zionist socialist party established in 1930 and led by David Ben-Gurion; it dominated Israeli politics for over forty years; changed its name to "the Labor Party" after its unification with Achdut Haavodah and Rafi.
Minhelet Ha'Am Literally "People's Administration"; has been constituted under the Declaration of the Establishment of the State of Israel; functioned as the government in the period after the state of Israel has been declared.
Mishpatim Student Law Review of the Hebrew University of Jerusalem.
Mishpat Umimshal Law and Government Review in Israel, published by the University of Haifa, Faculty of Law.
Mizrahi See National Religious Party.
Mo'etzet Ha'Am Literally "People's Council"; has been constituted under the Declaration of the Establishment of the State of Israel; functioned as a legislature in the period after the state of Israel has been declared.
Moledet Radical right political party; established in 1987 by General (res.) Rehavam Ze'evi (nickname Gandhi); main proponent of a the idea of a "transfer" (i.e. the eviction) of all native Palestinian Arab inhabitants from the Occupied Territories.
Mossad Israeli Secret Service responsible for espionage, intelligence gathering and political undercover operations in foreign countries.
National Religious Party (NRP); Israel's most influential Zionist religious party and a coalition partner in almost all the nation's governments; known earlier as Mizrahi.
Ploni (m) Literally "Unnamed".
Reshumot Official Gazette since the inception of the Knesset; it contains the following Sections:
Yalkut Ha Pirsumim (Government Notices)
Sefer Ha Hukim (Principal Legislation)
Kovetz Ha Takkanot (Subsidiary Legislation)
Hatza'ot Hok (Bills).
Sephardim Jews whose ancestors lived in Spain and Portugal; this term is usually applied to the Jewish Oriental population in Israel, in contradistinction to the Ashkenazim.
Shas An utraorthodox party of Sephardi Jews established in 1984 by former Chief Rabbi, Ovadiya Yosef; very influential and active in national politics.
Shin Bet/Shabaq General Security Service (GSS); the Israeli Secret Service responsible for undercover operations inside the state of Israel and the Occupied Territories.
Supreme Muslim Council The institutional power base from which the Grand Mufti of Jerusalem, Hajj Amin al Husayni, won the supreme leadership of the Palestine Arab community; it managed the wakf (the Muslim trusts responsible for holy sites and properties) and the Islamic courts (Shari'a Courts).
Takdin Elyon Official computerized publication of the judgements of the Israeli Supreme Court.
Tehiya Literally "Renaissance". A radical right political party that was established in 1979; it tries to bring together secular and religious Jews; most known leaders are: Professor Yuval Ne'eman and Geula Cohen.
Torah The Pentateuch; broadly the Jewish religious law.
Tzahal Literally "Tzva Haganah Le'Israel", the Israel Defense Force (IDF); it was set up by order of the provisional government a few days after the establishment of the state of Israel in Palestine.
World Zionist Main instrument in order to carry out the objectives of
Organization Zionism as defined in the Basle Program, 1897.
Yishuv Literally, "settling", "inhabited area"; organized Jewish community of Palestine before the establishment of the state of Israel (1882-1948).
ACKNOWLEDGMENTS
To my very best friend living in Austria who over more than two years supported my work in financial and technical aspects. Without this friend's help I could have hardly translate my scientific ambitions into actions. Regrettably it is better this friend remains anonymous.
To the University of Vienna, to Mr. Fritz Edlinger, Secretary General of the Society for Austro-Arab Relations (SAAR), to Dr. Walter Schwimmer, Secretary General of the Council of Europe and President of the Austrian Israel Society, and to Mag. Alexander Maksimovic, Managing Director of the Austrian Israel Society for their financial supports.
To Mr. Ari Rath, former Chief Editor of the Jerusalem Post, for his technical and financial supports in the initial stages of my field and library researches which I conducted in Jerusalem and throughout the Occupied Territories from spring 1998 to spring 1999.
To Professor Dr. David Kretzmer of the Hebrew University and also member of the United Nations Human Rights Committee whose personality, books and numerous articles inspired my work in many regards.
To several Palestinian, Israeli and international human rights NGO's, especially to Adalah-The Legal Center for Arab Minority Rights in Israel, AIC-The Alternative Information Center, Amnesty International, B'Tselem-The Israeli Information Center for Human Rights in the Occupied Territories, JMCC-Jerusalem Media and Communication Centre, LAW-The Palestinian Society for the Protection of Human Rights and the Environment for the provision of different publications and other research material.
To the great Palestinian Arab people living in Israel and the Occupied Territories (East Jerusalem, the West Bank, the Gaza Strip and the Golan Heights), to my very best Palestinian Arab friend living in the "Little Triangle" in Israel, and especially to my Palestinian Arab friends living in occupied East Jerusalem, who so generously opened their doors to me - both ordinary citizens and professionals, doctors, lawyers, researchers and technicians. Although they have all permitted me to publish their names, I have decided not to do so.
To Professor Dr. Alexander Somek of Vienna University for his positive supports and encouragements to undertake this study.
Last but not least I am particularly grateful to Professor Dr. Gerhard Luf and Professor Dr. Peter Pieler for giving me absolute freedom in my scientific work.
A. HISTORICAL PERSPECTIVES REGARDING THE RIGHT TO SELF-DETERMINATION OF THE JEWISH AND THE PALESTINIAN ARAB PEOPLE
1. Introduction
On 29 November 1947 the United Nations General Assembly adopted Resolution 181 (II) which, inter alia, provided:
1. That the British Mandate for Palestine shall terminate no later than 1 August 1948.[1]
2. That Palestine should be partitioned and that two independent states - an Arab and a Jewish state - which should enter into an Economic Union and Transit - as well as a Special International Regime for the City of Jerusalem shall come into existence in Palestine two months after the end of the Mandate but in any case not later than 1 October 1948.[2]
3. That no later than two months after the end of the Mandate, each state should elect its own Constituent Assembly, which by itself should enact a democratic constitution, guaranteeing to all persons equal and non-discriminatory rights in civil, political, economic and religious matters, the enforcement of human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly and association.[3]
4. That each state should be established on the conceptual basis of a bi-national state, where Palestinian citizens as well as Arabs and Jews who are not Palestinian citizens, but residing in Palestine outside the city of Jerusalem, shall become citizens of the state in which they are resident and enjoy full civil and political rights.[4]
5. That a declaration shall be made to the United Nations by the provisional government of each proposed state before independence which shall contain clauses regarding the protection of Holy Places, the protection of religious and minority rights and for the "equal protection of the laws" of all persons.[5]
6. That the admission of each state to membership in the United Nations is conditional upon the signment of the declaration and its undertaking, as envisaged in this plan.[6]
The provisions of the UN Partition Resolution 181 (II), inter alia, provide for the establishment of an Arab and a Jewish state, and constitute the first direct recognition of the indigenous Arab population of Palestine to be entitled to self-determination.[7]
However, the Palestinian Arab community - headed by the exiled Arab Higher Committee (AHC) chief and Grand Mufti of Jerusalem, Hajj Amin al Husayni[8] - as well as the surrounding Arab countries rejected the Partition Plan.[9]
Some of the Jewish Zionist parties of the organized Jewish community in Palestine pre-1948 (i.e. the "Yishuv") also rejected the Partition Plan and based their arguments on the fact that the proposed territory would not encompass "the whole original homeland of the Jewish people."
However, the leaders of the Jewish Agency - which was the main political body of the organized Jewish community in Palestine pre-1948 (i.e. the "Yishuv") - regarded the establishment of a Jewish state in Palestine and Jewish sovereignty over the land and the people of Palestine as the primary interest of the Jewish people.[10]
And due to the fact that the organized Jewish community of Palestine pre-1948 (i.e. the "Yishuv") had already prepared itself for statehood by creating two governing bodies - namely the People’s Council,[11] functioning as a legislature, and the People’s Administration,[12] functioning as the government[13] - the UN Partition Resolution 181 (II) was accepted "even for the price of loss of a part of the historic homeland."[14]
So far the position of the Jewish community.
An interesting and frequently discussed question, however, is:
"Why did the Palestinian Arab community reject the UN Partition Resolution 181 (II) despite the fact that it contained a formal statement to establish two bi-national states, where all persons should be treated equally, and where the rights and liberties of minorities residing in each state should be protected?"
In order to give a correct answer to this issue, it seems very necessary for me to provide a brief survey of the history, the institutions and the activities of the Zionist movement in Palestine since its inception in the last decade of the 19th century up until the establishment of the state of Israel in Palestine on 14 May 1948 - an event that lives on in the Palestinian narrative as al-Nakba (the Catastrophe) and means the deprivation of a large part of the native Palestinian Arab inhabitants (which then constituted the majority of all inhabitants of Palestine) of their right to self-determination.
An analysis of the conceptual-ideological and institutional framework of the Zionist movement before and during the British Mandate period, its underlying philosophy, aspirations and policy regarding the land of Palestine as well as the indigenous Arab inhabitants and their legal status, clearly reveals the reasons for the rejectionist position of the Palestinian Arab people in those days.[15]
Moreover, an analysis of the basic concept of the Zionist movement - whose unchanging political aims are to advance and protect first of all "Jewish national interests" - is also essential for an understanding of all subsequent developments in the highly conflict-loaded relationship between the Jewish and Palestinian Arab people.
As I will show in more detail in the course of this work, the said conflict-loaded relationship between these two peoples is the result of a translation and implementation of political Zionist objectives into the whole fabric of Israel's legal and social order, leading to the situation of a permanently favored treatment of the whole - i.e. the present and the potential (future) - Jewish population at the expense of the indigenous Palestinian Arab people and their fundamental rights and freedoms.
Since the establishment of the state of Israel on 14 May 1948 - up until the very present day of writing this work - the concept of political Zionism is specifically reflected in laws, regulations and court decisions dealing with the right to property[16] (especially land rights), the right to citizenship and nationality,[17] the right to equality,[18] the right to freedom of movement and residence.[19]
It should be stressed at this point that the violations of these rights which occur mainly with regard to the native Palestinian Arab inhabitants - specifically the issue of ownership and sovereignty of land as well as the connected issue of the demographic composition of the whole population living within the same territory - lay at the very foundations of the whole conflict between the Israeli/Zionist and the Palestinian/Arab people.
2. Ideology and Doctrines of the Concept of Political Zionism
The modern concept of political Zionism[20] emerged at the turn of the 19th century[21] in response to the growing anti-Semitism[22] - in the sense of anti-Jewish racism - in Europe and Russia, where in 1881 a series of pogroms directly led to the formation of plans to establish an own state in Palestine.[23]
Political Zionism as a movement intended to offer a solution to the problem of anti-Semitism through Jewish immigration into and colonization of Palestine,[24] accompanied by a change in the legal status of Jewish immigrants in Palestine under public law.[25]
The concept of political Zionism is a special form of the idea of nationalism, which, broadly speaking, turns devotion to the nation into principles or programs and thus contains a different dimension to mere patriotism which is devoid of any project for political action.[26]
Like many types of nationalism[27] also the concept of political Zionism tolerates considerable ideological diversity, and the existence of various doctrines of Zionism, such as left-wing, labor, socialist, capitalist, right-wing, revisionist, synthetical, cultural, religious, secular Zionism actually points to this fact.
A detailed discussion of these different doctrines of political Zionism lays, however, definitely outside the range of the present study.[28]
Nevertheless, it is important to mention that it was the Jewish labor movement of Palestine that shaped the future state of Israel in all its aspects:
The Jewish labor movement of Palestine has laid down the state's objectives, has established its organizational foundations, and has built the political and economic power structures of the future state of Israel.
The central stream of the Jewish labor movement in Palestine during the 1920s consisted of two parties, namely Ahdut Ha'avoda (United Labor)[29] and Hapo'el Hatza'ir (Young Worker).[30]
In 1920, Ahdut Ha'avoda and Hapo'el Hatza'ir founded the Histadrut (the General Federation of Jewish Workers in Eretz Israel) - a comprehensive social, political and economic organization which taxed its members and provided health service and unemployment allowances.
In 1930, Ahdut Ha'avoda and Hapo'el Hatza'ir fused within the framework of the Mapai Party (the Workers Party of Eretz Israel) - a political party which enjoyed unchallenged domination of the Histadrut, gave it its purpose and basic conception which was directed at "the conquest of land and building it up through extensive immigration."
The Mapai Party had acquired an unquestionable moral, social, and cultural position within the organized Jewish Zionist community in Palestine pre-1948 (i.e. the "Yishuv").
In 1933, the Mapai Party became the dominant party in the Zionist movement, and in 1935, David Ben-Gurion, a leading figure of this party, became chairman of the Zionist Executive and of the Jewish Agency's Executive.
The Mapai Party dominated not only the Histadrut and the "Yishuv", but also provided the ideology upon which the state of Israel should be built, actually was built, and still rests upon.
The original leaders of the Mapai Party, as well as representatives of the second wave (1904-1914) and third wave (1919-1923) of Jewish immigration, founded the state of Israel and shaped the first twenty years.[31]
Important to mention is that the representatives of the Jewish labour movement of Palestine not only formulated the state's ideology but also put this ideology into practice. These representatives were theorists and at the same time also political leaders who controlled the political, social and economic institutions which were set up by themselves.[32]
The original leaders of the Mapai Party provided the Israeli society with a strong model of economic, cultural and social life, which has never really been changed within the state of Israel - even not after the victory of the revisionist Right in the 1977 elections, and when Menachem Begin, the revisionist leader became prime minister.
The reason for this state of affairs lays in the fact that between the seemingly two extreme streams of Zionism - i.e. the social Zionism of the labor movement and the revisionist Zionism of the Right - there was in reality never any difference over the ideology and the basic objectives of Zionism itself.
As I will demonstrate in the course of this work the differences rather lay in the methods and instruments for the implementation of the objectives themselves.
At the very heart of the conceptual-ideological framework of all positions of Zionism - ranging from left-wing, secular, socialist, labor Zionism to different forms and levels of right-wing, nationalistic and religious Zionism - lays the fundamental aim to advance and protect first of all Jewish national goals and interests. The writings of various Zionist leaders reveal, at the top of the list was always the conquest of land and the creation of a Jewish nation state.[33]
As I will elaborate in more detail in sub-chapter 4.4. (dealing with the establishment of the Jewish National Fund) already at the First Zionist Congress in 1897 one delegate, Zvi Herman Schapira of Heidelberg, proposed the establishment of a fund for the purpose to acquire land in Palestine which should be forever the common and inalienable property of the Jewish people.
In 1904, Menachem Ussishkin, a Zionist leader and the head of the Jewish National Fund, described the main objective of acquisition of land in Palestine as follows:
"In order to establish Jewish autonomy, or to be more exact -- a Jewish state in Palestine, it is first of all essential that all the land of Palestine, or at least most of it, be the property of the Jewish people. Without the right of land ownership, Palestine will never be Jewish regardless of the number of Jews in it, both in the city and country..."[34]
Avraham Granovsky, another Zionist leader who in 1960 became the president of the Jewish National Fund, wrote in 1936:
"The land question is quite literally one of life or death for Zionism and the Jewish National Home. Zionism proposes to re-establish the Jewish people in the land of its ancestors...If, therefore, the necessary land be kept out of reach, the Zionist goal can never be attained."[35]
The nationalist ideology of the Zionist movement focused on a complete or partially exclusion of the indigenous Palestinian Arab people from resource allocation (land, water, budget) as well as from employment and economic, cultural and social rights and benefits.
It is important to mention at this point that - although Jewish immigration and Jewish enterprise have conferred benefits on Palestine in which the Arab people always shared - these advantages to the Arabs have been accidental to the main purpose of the enterprise and did never form part of the basic aims of Zionism.
These advantages and accidental benefits in which the Palestinian Arab people shared since the implementation of the political concept of Zionism was expressed in a very good way in an interview given by the then-mayor of Jerusalem, Teddy Kollek (Labour Party), to the Hebrew newspaper Ma'ariv immediately after the Temple Mount massacre in October 1990. In this interview, Kollek explicitly stated that the welfare of the Palestinian Arab population was not among the considerations that had guided the municipality in developing the Palestinian neighborhoods:
"[Kollek:] We said things without meaning them, and we didn't carry them out. We said over and over that we would equalize the rights of the Arabs to the rights of the Jews in the city - empty talk...Both Levi Eshkol and Menachem Begin promised them equal rights - both violated their promise...Never have we given them a feeling of being equal before the law. They were and remain second - and third class citizens.
[Question:] And this is said by a Mayor of Jerusalem who did so much for the city's Arabs, who built and paved roads and developed their quarters?
[Kollek:] Nonsense! Fairy tales! The Mayor nurtured nothing and built nothing. For Jewish Jerusalem I did something in the past twenty-five years. For East Jerusalem? Nothing! What did I do? Nothing. Sidewalks? Nothing! Cultural institutions? Not one. Yes, we installed a sewerage system for them and improved the water supply. Do you know why? Do you think it was for their good, for their welfare? Forget it! There were some cases of cholera there, and the Jews were afraid that they would catch it, so we installed sewerage and a water system against cholera..."[36]
Except for a few numerically unimportant groups,[37] all streams of Zionism rejected from the very beginning a universalistic aspect and spirit of liberalism, which would have expressed itself in an obligation to defend or at least not to trespass the rights of another people (i.e. the native Palestinian Arab people) and to establish equality and social justice among the Arab and Jewish people.
Contrary to much politicized scholarship and ideological information, Israel's concept of labor Zionism[38] was and actually still is no less committed to the basic principle of an homogeneous Jewish nation-state - in which the Palestinian Arab people, i.e. the second nation of the country, has no real place and does not share the "common good" - than the ideology of right wing Zionism.
Zeev Sternhell, professor of political sciences at the Hebrew University in Jerusalem, has shown in his recently published Book entitled "The Founding Myths of Israel", that the said principle of an homogeneous Jewish nation-state is inherent also in labour Zionism.
He expressed his findings in the following way:
"[E]ven in the celebrations of the First of May, national principles were dominant. The main objective for which the Jewish worker was struggling was said to be the national objective, not the realization of socialism...[in] the labor system the red flag was a symbol that strengthened the spirit of devotion to the nation rather than weakened it.
The settlements of the labor movement, its economic enterprises, and its cultural institutions were a bulwark against any contact with the Arab environment. Nobody fought against the Arab worker more vigorously than the Histradut; nobody preached national, economic and social segregation with more determination than the labor movement. Under such circumstances, how could concepts such as workers' solidarity and international brotherhood be taken seriously?"[39]
As already said above, the differences between the left- and right-wing Zionist parties lay in reality not within the ideological-conceptual framework of political Zionism itself but rather in the applied policies, i.e. the kind of methods and instruments which were used in order to fulfill this concept.
The idea of political Zionism - whose aims are to advance and protect first of all "Jewish national interests" - achieved its principal aim on 14 May 1948 with the establishment of the state of Israel in Palestine - or expressed in other words - with the transformation of Arab Palestine into the national home of the Jewish people and when al-Nakba (the Catastrophe) took place.[40]
3. Sources of the Concept of Political Zionism
The following fundamental documents define the ideological concept of Zionism and also establish the political programme of the Zionist movement.
3.1. The Basle Programme - Declared in 1897
The Basle Programme is the first document in this series and was declared by Theodor Herzl at the First Zionist Congress in Basle on 31 August 1897.[41]
Although the idea of Zionism has been established already a long time before with Leon Pinsker's treatise "Autoemanzipation", Theodor Herzl, a Viennese Jew, is recognized as the founder of political Zionism.[42]
The Basle Programme introduced for the first time the political programme of the Zionist movement and clearly determined that
"...the aim of Zionism is to create for the Jewish people a home in Palestine secure under public law."[43]
In order to realize the goal of "creation of a Jewish home in Palestine" the Basle Program also recommended that the following activities should be carried out:
1. Promotion of the settlement of Palestine by Jewish immigration.
2. Organization and binding together of the Jewish people living throughout the world by the means of local and general institutions.
3. Strengthening of Jewish sentiment and national consciousness.
4. Preparatory steps towards obtaining government consent, for the attainment of Zionism.[44]
The Basle Program itself has no legal implication.
Nevertheless its formula of a "home" for the Jewish people was later used in the Balfour Declaration and in the Mandate for Palestine, both of which promised the establishment of a "Jewish national home" without, however, defining the meaning of this term.
Although the Zionist movement has succeeded to gain more and more support during the first years of the new 20th century, the chances of getting a "home" or even a state in Palestine were initially little.
However, new possibilities for the establishment of such a "home" in Palestine started to open up after the destruction of the Ottoman Empire during World War I, especially after the formulation of the Sykes-Picot Agreement in April - May 1916[45] - concluded between Britain and France - wherein the said two powers newly shaped the Middle East and allocated portions of the Ottoman Empire into their spheres of influence and authority.
This development encouraged influential and leading figures of the Zionist movement, particularly Chaim Weizmann,[46] to press Britain for a commitment to provide "a home for the Jewish people in Palestine."
3.2. The Balfour Declaration of 2 November 1917
On 2 November 1917, the efforts by Zionist leaders "to obtain a commitment by Britain to facilitate the establishment of the Jewish national home in Palestine" were finally successful, after Arthur James Balfour, the then British Foreign Secretary acting on behalf of the British government, wrote the "Balfour Declaration" to Lord Rothshild, the British Zionist leader who represented Zionist interests for that occasion.
The Balfour Declaration was written in the form of a letter and is the second important document that explicitly mentions the political program of Zionism.
With regard to the nature of the Balfour Declaration it should be stressed at this point that it is a clear statement of policy by the British government[47] that radically altered the course of history if not for the whole world, then at least for the Middle East.
Additionally it has long served as the juridical basis of Zionist claims to Palestine.[48]
The Balfour Declaration, 1917 contains three provisions which are relevant for the present discussion about the foundations of human rights in Israel and the Occupied Territories.
Firstly, the Balfour Declaration stated that Great Britain would
"...view with favor the establishment in Palestine of a national home for the Jewish people, and will use its best endeavors to facilitate the achievement of this object..."[49]
Secondly, the Balfour Declaration made the promise to support the Zionist cause dependent upon the condition
"...that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine... "[50]
Thirdly, the Balfour Declaration stated
"...that nothing shall be done which may prejudice...the rights and political status enjoyed by Jews in any other country."[51]
The Balfour Declaration reflects a big amount of disregard and lack of morality with which the rights and interests of the native Palestinian Arabs were handled by the then British Foreign Secretary Arthur Balfour, due to the following facts:
With the first clause entailed in the Balfour Declaration - referring to the establishment of "a national home for the Jewish people" - a declaration was made by a European nation (i.e. Great Britain) about a non-European territory (i.e. Palestine) - without being in control of or having occupation of that country.[52]
The declaration was made in the form of a promise about this same territory (which constituted the homeland of another nation, i.e. the Palestinian Arab people) to the representatives of a people (i.e. the Jewish people) whose majority was not living there - since almost 2000 years.
Furthermore, the British government recognized an unqualified right by "all Jews" in the world to Palestine, without, however having any consent of the indigenous Palestinian Arab inhabitants (which then constituted 92% of the total population) and contrary to the principles of citizenship applicable in the rest of the world whereby a person can claim a right to a homeland only through birth or residence under certain specific conditions.[53]
Concerning the disregard of the presence and the wishes of the native Arab majority residents in Palestine, Lord Balfour explained later on the position of the British government in a Memorandum dated 11 August 1919 where he stated that
"...in Palestine we do not propose even to go through the form of consulting the wishes of the present inhabitants of the country...The four great powers are committed to Zionism and Zionism, be it right or wrong, good or bad, is rooted in age-long tradition, in present needs, in future hopes, of far profounder import than the desires and prejudices of the 700.000 Arabs who now inhabit that ancient land. In my opinion that is right."[54]
It should be stressed at this point that this Memorandum violates the fundamental principle - as it has been laid down by President Woodrow Wilson's "Fourteen Points" - that the settlement of every territorial question must be made upon the free acceptance by the people immediately concerned, i.e. in the interests and for the benefit of the populations concerned and not upon the basis of the material interest or advantage of any other nation or people which may desire a different settlement for the sake of its own exterior influence or mastery.
In his address on 11 January 1919 President Woodrow Wilson explicitly stated that
"...peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now forever discredited, of the balance of power: but that every territorial settlement involved in the war must be made in the interests and for the benefit of the populations concerned."[55]
The second clause of the Balfour Declaration - prescribing that "nothing shall be done to prejudice the civil and religious rights of the existing non-Jewish communities" - gives a false and erroneous picture regarding the position, the rights and interests of the native Muslim and Christian Arab inhabitants of Palestine, which constituted at this times 92% of the total population.
Despite the overwhelming majority of the native Arab Palestinians, this clause did not use the term "Arabs" but rather relates to them as the "existing non-Jewish communities", this giving the impression that they were an insignificant minority, occupying a position subordinate to the Jewish minority.
Reading through the Balfour Declaration one may easily discern that the duty towards the Jewish people had substantially more weight than the other obligation towards the so called "existing non-Jewish communities" in Palestine.
The Balfour Declaration does not treat the Jewish and Palestinian Arab people equally, since it only defined Britain's responsibility towards building a Jewish national home, without any hint what kind of national home was envisaged.
Additionally, it does not entail any specific safeguard for the political rights of the native Arab inhabitants of Palestine.[56]
With the third provision - stating that "...nothing shall be done which may prejudice ...the rights and political status enjoyed by Jews in any other country" - the Balfour Declaration promised to the Jewish people exactly the same territory which also constituted the homeland for another people - namely the Palestinian Arabs - and additionally safeguarded the rights of the Jews in their countries of origin.
Due to the fact that the term "national home" has not been defined, its exact meaning was open to more than one interpretation,[57] and lead to serious conflicts:
In 1921 a big controversy regarding the exact meaning of the terms used in the Balfour Declaration arose.
The native Arabs of Palestine feared that this term meant the eventual establishment of a Jewish state resulting in the disappearance or the subordination of the Arab population, language or culture in Palestine.
These fears by the native Palestinian Arab population were nourished by a large number of publications (Zionist books and articles in various newspapers) which - in the worst cases - even proposed the transfer of Arabs from Palestine.[58]
Additionally, public statements were made by official organs of the Zionist Organization revealing the attitude and objectives of political Zionism regarding the Palestinian land and their native inhabitants.
Such a statement, for instance, was made by Dr. Eder, the then acting chairman of the Zionist Commission in Palestine, who appeared before a British Commission of Inquiry, which was appointed to investigate the causes of the anti-Jewish riots that took place in May 1921.
At this occasion Dr. Eder clearly stated that
"... there can be only one National Home in Palestine, and that is a Jewish one, and no equality in the partnership between Jews and Arabs, but a Jewish preponderance as soon as the members of the race are sufficiently increased."[59]
The Haycraft Commission Reports - Published in October 1921
In its Reports of October 1921 the Haycraft Commission commented on Dr. Eder's statements, inter alia, as follows:
"...Dr. Eder was a most enlightening witness. He was quite unaggressive in manner and free from any desire to push forward opinions which might be offensive to the Arabs. But when questioned on certain vital matters he was perfectly frank in expressing his view of the Zionist ideal. He gave no quarter to the view of the National Home as put forward by the Secretary of State and the High Commissioner... As acting Chairman of the Zionist Commission Dr. Eder presumably expresses in all points the official Zionist creed, if such there be, and his statements are, therefore, most important. There is no sophistry about Dr. Eder; he was quite clear that the Jews should, and the Arabs should not, have the right to bear arms, and he stated his belief that this discrimination would tend to improve Arab-Jewish relations...
We do not comment upon his opinions because the discussion of the questions raised is not our concern, but it is relevant to our report to show that the acting Chairman of the Zionist Commission asserts on behalf of the Jews those claims which are the root of the present unrest, and differ materially from the declared policy of the Secretary of State and the High Commissioner of Palestine..."[60]
The Churchill White Paper - Issued in 1922
However, in an attempt to appease[61] the Palestinian Arabs and the opposition of right-wing Tories in Westminster, the British government issued on 3 June 1922 a statement of policy which is known as the Churchill White Paper.[62]
The Churchill White Paper explicitly stated as follows:
"Unauthorized statements have been made to the effect that the purpose in view is to create a wholly Jewish Palestine. Phrases have been used such as that Palestine is to become 'as Jewish as England is English.' His Majesty's Government...have no such aim in view. Nor have they at any time contemplated, as appears to be feared by the Arab Delegation, the disappearance or the subordination of the Arabic population, language or culture in Palestine. They would draw attention to the fact that the terms of the Balfour Declaration do not contemplate that Palestine as a whole should be converted into a Jewish national home, but only that such a home should be founded in Palestine."[63]
Although, the Churchill White Paper clearly restricted the interpretation of the Balfour Declaration regarding the term "Jewish national home", it did not explicitly oppose the idea of a Jewish state, since it also contained the following passage:
"So far as the Jewish population of Palestine are concerned, it appears that...His Majesty's Government may depart from the policy embodied in the Declaration of 1917. It is necessary, therefore, once more to affirm that these fears are unfounded, and that the [Balfour] Declaration,..., is not susceptible of change."[64]
Therefore - as I see it - the native Palestinian Arabs were not convinced that their rights and interests were not being prejudiced by the "national home" policy which, as they watched and made all effort to resist, gradually materialized into a Jewish national home.
3.3. The Mandate for Palestine - Granted to Great Britain in 1922
3.3.1. General Remarks
The diplomatic battle for a Jewish Palestine entered a new stage at the Paris Peace Conference, when on 28 June 1919, the Treaty of Versailles - comprising also the Covenant of the League of Nations[65] - was signed.
Article 22 of the Covenant of the League of Nations established the Mandate system
"...for those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be the principle that the well-being and development of such peoples form a sacred trust of civilization..."[66]
The task of drawing up the charter of the mandate was left, however, to the mandatory power.
The Balfour Declaration served not only as guideline, but was even explicitly incorporated in the text of the Mandate of Palestine which forms the second main international-legal source upon which the Zionist movement (later also the Declaration of the Establishment of the State of Israel, 1948) relied in order to found territorial claims regarding all parts of Palestine and to exercise the right to self-determination of the Jewish people on that territory.
The exact terms of the Mandate were approved by the Council of the League of Nations on 24 July 1922 and came into force on 29 September 1922.[67]
The Mandate for Palestine embodied two main objectives, namely: 1. to give effect to the provisions of Article 22 of the Covenant of the League of Nations; and 2. to establish the responsibility of the British Mandatory power for putting into effect the Balfour Declaration of 1917.
Article 2 of the Mandate for Palestine states:
"The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion." [Emphasis added][68]
Article 6 of the Mandate for Palestine states:
"The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish Agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes."[69]
The right to national self-determination was internationally recognized by President Woodrow Wilson's "Fourteen Points" and applied to the break-up of the Austrian-Hungarian and Ottoman Empires after the First World War.
The Mandate for Palestine clearly recognized the right to national self-determination of the Jewish people, but - in spite of Woodrow Wilson's "Fourteen Points" - it did not recognize the same right to the Palestinian Arab people.
In the context of President Woodrow Wilson's "Fourteen Points" and the Mandate for Palestine the general question arises:
"What is the 'self' of a nation and who can express its will?" Or to put it in other words:
"What is the exact content of a right to self-determination and under which circumstances may this right be translated into actions?"
3.3.2. What is the " Self " of a Nation and Who has the Right to Express its Will?
The philosophic idea of "self-determination" originates in the 18th century concern for freedom and the primacy of the individual will.
This idea has been applied to groups which can be said to have collective will, but in the 20th century it was applied primarily to cohesive national groups ("peoples").
The right to self-determination has been defined by Ian Brownlie as:
"The right of cohesive national groups ('peoples') to choose for themselves a form of political organization and their relation to other groups. The choice may be independence as a state, association with other groups in a federal state, or autonomy or assimilation in a unitary (non-federal) state."[70]
Until the end of the Second World War the majority of Western jurists was of the opinion that the idea of "self-determination" had no legal content, since it was "an ill-defined concept of policy and morality".[71]
However, with the establishment of the United Nations, Western jurists as well as governments started to generally admit that self-determination is a legal principle.
The principle of self-determination is embodied in a series of prominent resolutions, declarations and other documents adopted by the United Nations, namely:
- The Charter of the United Nations, 1945[72]
- The UN GA Resolution 637 A (VII), 16 December 1952 (entails a recommendation that "the States Members of the United Nations shall uphold the principle of self-determination of all peoples and nations".)
- The Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960[73]
- The Resolution on Permanent Sovereignty over Natural Resources, 1960[74]
- The Declaration on the Inadmissibility of Intervention, 1966[75]
- The International Covenant on Civil and Political Rights, 1966 [hereinafter ICCPR] and the International Covenant on Economic, Social and Cultural Rights, 1966 [hereinafter: ICESCR][76]
- The Declaration on Principles of International Law concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, 1970.[77]
It should be stressed that taken to its most vicious extremes the exercise and accomplishment of national self-determination leads or may lead to the phenomena of "ethnic cleansing".
3.3.3. US President Woodrow Wilson's "Fourteen Points", 1919 and The Mandate for Palestine, 1922:
Self-Determination For Whom?
It should be pointed to the fact that the Mandate for Palestine explicitly gave
"...recognition...to the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country..."
At the same time the Mandate for Palestine completely disregards the same historical connection of the native Palestinian Arabs and their right to national self-determination, which was internationally recognized by President Woodrow Wilson's "Fourteen Points" and applied to the break-up of the Austrian-Hungarian and Ottoman Empires after the First World War.
The Jewish national home policy and the sui generis Mandate for Palestine totally run counter the fundamental principle - as it has been laid down by President Woodrow Wilson's "Fourteen Points" - that the settlement of every territorial question must be made upon the free acceptance by the people immediately concerned, i.e. in the interests and for the benefit of the populations concerned and not upon the basis of the material interest or advantage of any other nation or people which may desire a different settlement for the sake of its own exterior influence or mastery.
With regard to the non-Turkish nationalities in the territories of the former Ottoman Empire, which were occupied by the Allied Forces, President Wilson said that they should be given "an absolute unmolested opportunity of development".[78]
The Mandate for Palestine recognized the right to self-determination of the Jewish people, but it did completely disregard the same right to national self-determination of the Palestinian Arab people living since generations on the same land.
However, one may say that with the establishment of the terms of the Mandate for Palestine one first aim of Herzl's Basle Programme has been achieved, namely that for the Jewish people "a home" in Palestine "be secured by public law".
3.4. The Biltmore Programme - Established in 1942
Another source of expression of the political programme of the Zionist movement is the Biltmore Programme which was approved by a Zionist Conference held in May 1942 in the Biltmore Hotel in New York.
At this conference some six hundred delegates, representing the main Zionist groups in New York, gathered in order to discuss and reformulate, inter alia, the aims of their movement.[79]
For the first time, the Zionist movement clearly declared that full, independent Jewish statehood was its goal:
"...Palestine be established as a Jewish commonwealth integrated in the structure of the new democratic world."[80]
The Biltmore Programme reflects a new "militant" thinking of American Zionism whose demands became identical with the sovereignty long demanded by the revisionists.
3.5. The Jerusalem Programme - Established in 1951
In 1951, at the 23rd Zionist Congress, the task of Zionism was reformulated in the Jerusalem Programme and incorporated into the new constitution of the World Zionist Organization, which entailed the following clause:
"The task of Zionism is the consolidation of the state of Israel, the ingathering of exiles in Eretz Israel and the fostering of the unity of the Jewish people."[81]
It should be noted here that the Jerusalem Programme explicitly uses the word "Eretz Israel" - and not the word "Palestine" as it was done in the time before the establishment of the state of Israel.
3.6. Revision of the Jerusalem Programme - 1968
In 1968 - shortly after Israel has occupied a large part of territories, namely the Sinai Peninsula, the Gaza Strip, the Golan Heights and the West Bank of the Jordan River including East Jerusalem, during the June 1967 war - the 27th Zionist Congress again pronounced the goals of the Zionist movement and even used the specific formulation of "historic homeland Eretz Israel" in order to include also the previously captured and occupied territories.
The Revised Jerusalem Programme established the aims of Zionism as follows:
"The unity of the Jewish people and the centrality of Israel to Jewish life; the ingathering of the Jewish people in its historic homeland Eretz Israel through aliyah from all countries; the strengthening of the state of Israel..."[82]
4. Establishment of "Jewish National Institutions" by the Zionist Movement
4.1. Introduction
As already elaborated in a previous sub-chapter, the fundamental political aim of the Zionist movement was to create a national home for the Jewish people in Palestine.
In order to reach this aim the Zionist movement needed to translate its political concept into realities and visible facts. That means, land had to be acquired, owned, inhabited and economically used (cultivated, leased) by Jewish immigrants - as it was expressed by Avraham Granovsky, a leading Zionist figure.[83]
The main political activities of the Zionist movement therefore concentrated on:
1. Jewish acquisition, ownership and control of Arab owned land in Palestine;
2. Extensive Jewish immigration into Palestine and their settlement on the land;
3. Employment of "Jewish labour".
These activities were carried out by a number of Jewish national institutions - such as:
1. The World Zionist Organization (WZO)
2. The Jewish Agency (JA)
3. The Jewish National Fund (JNF)
4. The Histadrut
All these institutions were created immediately after the adoption of the Basle Program at the First Zionist Congress in 1897 as well as during the Ottoman and British Mandate era up until the establishment of the state of Israel in 1948.
In the era before the establishment of the state of Israel in Palestine the above mentioned Zionist institutions operated as political institutions of the Jewish community in Palestine (i.e. the Yishuv) and their functions were to further exclusively Jewish aims and interests.[84]
Common to these Jewish national institutions is the fact that they are based on a system which is characterized by two basic principles, namely:
1. The principle of "inalienability of land" and
2. The principle of employment of "Jewish labour"
Both principles discriminate in systematical and institutionalized way against the non-Jewish population in general and the native Palestinian Arab people in particular.
It should be stressed here that both principles are still applied today due to the fact that the above mentioned Zionist institutions are carrying out important governmental activities for the state of Israel, not, however, in the interest of all its citizens or inhabitants irrespective of their religious or national affiliation, but rather for the sole interest of the Jewish population.
4.1.1. The Fundamental Principle of "Inalienability of Land"
This principle means that land which has been acquired by Jews as Jewish property and which has passed into Jewish ownership is to remain in perpetuity within the Jewish community.
According to this principle the land has to remain Jewish in that the paramount ownership inheres in a Jewish national institution, which is supposed "to represent the Jewish people."
Furthermore this principle established that not only the ownership but also the use of the land is to be kept within the Jewish sphere, since only Jews may lease and cultivate it.[85]
The principle of "inalienability of land" has its source in the old religious principle of the Torah according to which "...the land shall not be sold for ever for the land is Mine" (Leviticus 25:23).
As I will demonstrate especially in Chapter G (The Right to Property) of this work, the system of acquisition of land by Zionist institutions adhering to the said idea of "inalienability of land" leads to an "extra-territorialisation" of such lands for all non-Jews.[86]
This means that no native Palestinian Arab resident or Palestinian Arab refugee or any other non-Jew may benefit or gain any advantage from this land by way of purchase, lease, cultivation, or even labour either now or at any time in the future.
I want to stress that due to the fact that the said system is carried out only within one national group, namely the Jewish population, it leads to a massive and systematic discrimination against all non-Jewish inhabitants in general and the native Palestinian Arab people in particular.
4.1.2. The Fundamental Principle of "Jewish Labour"
This principle means that in all settlements which were founded on Jewish land (which according to the above mentioned principle became inalienable land) only Jewish persons may legally be employed.[87]
The application of this principle meant a de facto boycott of "Arab labour" and was performed in a persistent and deliberate way.
On the long run the application of this principle in combination with the application of the principle of "inalienability of land" lead - and still leads - to the creation of an impoverished landless Arab class and in the worst case to the complete "de-Arabization" of certain regions.[88]
There are no doubts that the discrimination against the native Palestinian Arabs - which occurred in connection with the mentioned basic tenets of the Zionist institutions - was one of the main reasons why they could never believe that the immigrating Zionist Jews came with friendship and goodwill.
4.1.3. The "Jewish National Institutions" and their Significance for the State of Israel
The below described Zionist institutions are of utmost importance, due to the fact that up until today the whole concept of the State of Israel rests upon them.
Almost from the very beginning, these institutions were created with an eye to conversion into institutions of a later state and not for nothing they were considered as institutions of the "state on the way."[89] And so it happened, that at the moment when the state of Israel was established in Palestine, all those institutions which are necessary for the functioning of a state were already in place and ready to take over.[90]
After the establishment of the state of Israel in Palestine in 1948, the Knesset passed laws[91] that granted official status and the sole authority to the below described Zionist institutions - the World Zionist Organization (WZO), the Jewish Agency (JA) and the Jewish National Fund (JNF) - to carry out important activities which are by their nature state/governmental activities par excellence - namely immigration, settlement and funding.[92]
It should be stressed at this point that the special legal status was granted to these Zionist institutions without changing their original historical mandate according to which only Jewish aims and interests should be advanced but not the interests of non-Jewish inhabitants of Palestine - a fact which mainly concerns the native Palestinian Arab residents.
As a result the Zionist institutions of the pre-state era - after having received the official authority - are carrying out important governmental activities[93] for the state of Israel, not, however, in the interest of all its citizens or inhabitants irrespective of their religious or national affiliation but rather for the sole interest of the Jewish population.
This state of affairs persists up until today, despite the fact that Israel formerly committed itself in the Declaration of the Establishment of the State of Israel of May 1948 to complete equality of political and social rights for all its citizens, regardless of race, religion or sex.
Due to their utmost importance until today and their discriminatory effects for all non-Jewish inhabitants, i.e. mainly the native Palestinian Arab people, the three main Zionist institutions - the World Zionist Organization (WZO), the Jewish Agency (JA) and the Jewish National Fund (JNF) - will be discussed in the following sub-chapters 4.2 - 4.4.
4.2. The World Zionist Organization (WZO) - Established in 1897
The World Zionist Organization (WZO) - originally called Zionist Organization - was founded by Theodor Herzl at the First Zionist Congress held in Basle in August 1897.
The WZO was the main political and official organ of Zionist movement and carried out all Zionist political activities in Palestine and abroad in the era of the Ottoman period and later during the British Mandate.[94]
The Basle Program of 1897 entails one of the best definitions of the concept of political Zionism. It establishes the aims of the Zionist movement and also the means by which the WZO - as main organizational framework - should achieve its objectives. These means are:
1. The defense of the Zionist cause before the different governments.
2. The encouragement of Jewish immigration into Palestine.
3. The promotion of Jewish settlement in Palestine.[95]
Additionally, the WZO devoted most of its financial resources (based on contributions) to the mentioned activities.
Until today, the WZO operates as the formal framework of the Zionist movement. The governing organs of the WZO are comprised of representatives of Zionist movements in Israel and the Diaspora.[96]
4.3. The Jewish Agency (JA) - Established formally in 1922
Constituted in 1929
The Jewish Agency (JA) was formally established by the Mandate granted to Great Britain by the League of Nations for Palestine in 1922 and operates until today. The JA should act as an official body for the purpose of representing the Jewish people, and advising and cooperating with the British Mandate government, provided that the mandatory power would facilitate Jewish immigration and settlement.[97]
Important to mention is the fact that no such body existed or was any time established for the Palestinian Arab people living in Palestine or elsewhere.
Article 4 of the Mandate for Palestine gave the WZO the status of a JA and provided that
"...an appropriate Jewish Agency shall be recognized as a public body for the purpose of advising and cooperation with the administration of Palestine in such matters as may affect the establishment of the Jewish National Home and the interests of the Jewish population in Palestine, and subject always to the control of the Administration, to assist and take part in the development of the country.
...The Zionist Organization, so long as its organization and constitution are in the opinion of the Mandatory appropriate, shall be recognized as such agency. It shall take steps in consultations with His Britannic Majesty's Government to secure the cooperation of all Jews who are willing to assist in the establishment of the Jewish national home."[98]
The JA was the main political body of the "Yishuv" - i.e. the organized Jewish community in Palestine pre-1948 - and it played a key role in the whole events which led up to the establishment of the State of Israel in Palestine in May 1948.[99]
From 1922 until 1929 the WZO functioned as the JA, that means the two bodies were merged.[100]
From 1929 until 1942 the JA became a separated body, and its membership was expanded in order to include also non-Zionist Jewish leaders of the Diaspora.[101]
The Constitution of the separated JA was signed on 14 August 1929 in Zurich. Regarding acquisition of land and employment of Jewish labour Article 3 provides as follows:
"(d) Land is to be acquired as Jewish property, and..., the title to the lands acquired is to be taken in the name of the Jewish National Fund, to the end that the same shall be held as the inalienable property of the Jewish people.
(e) The Agency shall promote agricultural colonization based on Jewish labour, and in all works or undertakings carried out or furthered by the Agency, it shall be deemed to be a matter of principle that Jewish labour shall be employed..." [Emphasis added][102]
Reading through these passages one may easily discern the discriminatory effect for all non-Jewish, i.e. the indigenous Palestinian Arabs left on such land that was transferred to the control of the mentioned JNF and JA. These two principles make the political and economic position of any native Palestinian Arabs left on such land most difficult and almost impossible, since these native Arabs are driven out by Jewish economic pressure in almost as distrastrous a way as if they would be removed by force.
From 1942 until 1971 the WZO and the JA were merged again.[103]
In 1971, the WZO and the JA became again separated bodies and the functions of each body were defined.[104]
Nevertheless, the WZO and the JA are still working in close cooperation.[105]
4.4. The Jewish National Fund (JNF) - Established in 1901
The Jewish National Fund (JNF) - a land fund based on monetary contributions from all over the world - was established at the 5th Zionist Congress in 1901.[106]
The JNF was the main official organ of the WZO in the era before the establishment of the state of Israel in Palestine whose aims were to purchase and acquire land in Palestine (but not to sell it) and to finance Jewish communal settlements.[107]
Important to mention is the fact that detailed proposals to set up such a fund for land purchases in Palestine were placed before the Zionist leadership as early as the First Zionist Congress in Basle on 31 August 1897.
Before the opening of the Congress the Zionist delegates received a memorandum which informed them that Zvi Herman Schapira of Heidelberg (1840-1898), a member of the Lovers of Zion movement, a rabbi and professor of mathematics, proposed the establishment of a fund for the purpose to acquire land in Palestine.[108]
Although there were also other proposals submitted to the First Zionist Congress, it was only Schapira's proposal that was finally presented, discussed and also published in the Congress Proceedings.[109]
According to Schapira the proposed land fund must have two qualities:
1. The fund itself must be perpetual.
2. The land must be forever the common and inalienable property of the Jewish people.
Schapira's proposal provides in this regard as follows:
"A Fund must be set up by the Jewish people of the world to redeem the soil of Eretz Israel. It is imperative that every Jew young or old, rich or poor, without distinction, should be able to participate in this general Jewish fund. The land thus purchased shall be forever the property of National Fund...and shall not be sold to individuals but rather be leased to those who work it for a period of no more than 49 years..."[110]
Schapira's proposal - which gained wide support among the delegates to the First Zionist Congress - reflects several old biblical and Jewish traditional principles.
However, Max Bodenheimer (1865-1940), a lawyer from Cologne and later the chairman of the JNF insisted that at first a Jewish bank should be established and only then a land fund.
The First Zionist Congress finally issued a resolution which stated as follows:
"The assembly declares that in principle it regards as essential the creation of a national Fund and the establishment of a Jewish bank and to these ends, the Actions committee to be elected present to the next congress a carefully prepared plan."[111]
However, due to legal and organizational difficulties the proposed land fund, i.e. the JNF, was only established in 1901 at the 5th Zionist Congress.
In 1907 the JNF was separately incorporated in England as a Limited Liability Company[112] and all the lands purchased by the JNF were registered in the name of this private company[113] which - according to Article 3 of its Memorandum of Association - was not permitted any more to divest itself from the paramount ownership of such land - leading to the complete "extra-territorialisation" of such lands for all non-Jews, i.e. mainly the indigenous Palestinian Arab people.
Article 3 of the Memorandum of Association of the JNF[114] reveals the objectives and the whole ideology upon which the JNF - which after the establishment of the state of Israel in Palestine became an important organ vested with governmental functions - is built:
"3. The objects for which the Association is established are (subject as hereinafter expressly provided) as follows:
(1) To purchase, take on lease or in exchange, or otherwise acquire any lands, forests, rights of possession and other rights, easements and other immovable property in the prescribed regions (which expression shall in this Memorandum mean Palestine, Syria and other parts of Turkey in Asia and the Peninsula of Sinai) or any part thereof[115] for the purpose of settling Jews on such lands.
(3) To let any land or other immovable property of the Association to any Jew or to any unincorporated body of Jews or to any company..., having regard to the identity of the person or persons controlling the majority of the voting-power and to the nature of the actual or intended operations of the Company, the Board is of the opinion that the following conditions are satisfied, that is to say: (1) the Company is a Company under Jewish control and (2) the Company is engaged or intends to engage in the settlement of Jews in the prescribed region,... provided that no lessee or lessees shall be invested with the right of selling, assigning, mortgaging, charging, or by way of sub-letting[116]...
(5) To make any donations, either in cash or other assets which may be deemed...to promote the interests of Jews in the prescribed region...
(6) To purchase or otherwise acquire, and to sell, dispose of, work develop, deal with and otherwise turn to account mines and mining rights and property...in any part of the prescribed region, but so that nothing in this sub-clause contained shall enable the Association to divest itself of the paramount ownership of any of the soil of, work, develop, deal with and otherwise turn to time acquire.[117]
(11) To sell, mortgage, grant licenses, easements and other rights..., but so that nothing in this sub-clause contained shall enable the Association to divest itself of the paramount ownership of any of the soil of the prescribed region which it may from time to time acquire save only that the Association may from time to time transfer the paramount ownership of such lands as it may deem necessary to a Corporation in Israel having the primary objects similar to the primary objects of the Association.
(12) To borrow or raise money on any terms and conditions, ..., both present and future, but so that nothing in this sub-clause contained shall enable the Association to divest itself of the paramount ownership of any of the soil of the prescribed region which it may from time to time acquire.
(18) To make advances to any Jews in the prescribed region upon any security which be thought fit...".[Emphasis added]
The complete and permanent control of the JNF was vested in the members of the Action Committee of the Zionist Organization,[118] which is known today as the Zionist General Council. It is elected by the Zionist Congresses and reflects the composition of the Congresses.[119]
It should be mentioned at this point that the Hebrew name for "Jewish National Fund" is Keren Kayemet Le'Israel, which literally means "Perpetual Fund for Israel", and thus emphasizes the nature and the intentions of the fund.
The Hebrew name of the fund derives from the talmudic dictum about good deeds "...the fruits of which man enjoys in this world, while the capital remains [ Keren Kayemet ] for him in the world to come." (Mishnah Pe'ah 1,1).
Considering the already in sub-chapter 4.3. elaborated fact that the 1929 Constitution of the Jewish Agency (JA) provides in its Article 3 (d) and (e) that
"(d) Land is to be acquired as Jewish property, and... to be taken in the name of the Jewish National Fund, to the end that the same [land] shall be held as the inalienable property of the Jewish people"
and that
"(e) ...in all works or undertakings carried out by the Agency, it shall be deemed to be a matter of principle that Jewish labour shall be employed..."
one may easily understand that these two principles make the political and economic position of any native Palestinian Arabs left on such land (that was transferred to the control of the mentioned Jewish national institutions, i.e. the JNF and the JA) most difficult and almost impossible, since these native Arabs are driven out by Jewish economic pressure in almost as distrastrous a way as if they were removed by force.
5. Palestinian Arab Opposition to Political Zionism in the 1920's and 1930's: Major Events Leading to the Rejection by the Palestinian Arab People of the UN GA Resolution 181 (II) of 29 November 1947
5.1. The Period from 1880 until 1919
Jewish immigration into Palestine started from about 1880 on and was initially met with little opposition by the indigenous Palestinian Arab population, since the Jewish immigrants were small in number and the then Jewish community of Palestine was not regarded as having nationalistic or political ambitions.[120]
However, with the rise of political Zionism in the end of the 19th century - whose central aim was "the establishment in Palestine of a national home for the Jewish people" - it became clear for all sides involved that the Zionist movement understood this aim in the sense as to change the demographical composition and land ownership in favor of the immigrating Jewish population.
These developments lead to a growth of Palestinian Arab opposition against the policy of the Zionist movement, since the indigenous Palestinian Arab population had become more and more anxious about its economic and political future and very existence in Palestine.
Although Palestinian opposition was already voiced in 1891,[121] 1897[122] and 1905[123] anti-Zionist resentment had found no organized political expression until 1908.
The year 1908 marked, however, a turning point insofar as an organized Palestinian Arab anti-Zionist movement started to emerge and to engage in specific activities in order to combat Zionism: People who cooperated with Zionists were denounced; anti-Zionism played a prominent role in the campaign of most candidates in the elections to the Turkish Parliament;[124] newspapers were extremely vocal against Zionism.
In the subsequent years several newspapers were established - such as "El-Carmel"[125] in Haifa (founded in 1908), "Falestin" in Jaffa (founded in 1911) and "Al-Muntada" in Jerusalem (began to appear in 1912) - all with the express purpose of combating Zionism.[126]
At this point it is important to stress that not only the Zionist movement had a claim to Palestine and wished to establish an independent political entity, but also the native Arab inhabitants wanted to reach independence.
Therefore the Palestinian Arab leadership also engaged in political activities with Great Britain culminating in a British promise to support also their goals.
5.1.1. The Henry McMahon - Sharif Hussein Correspondence (1915 - 1916)
In the period from July 1915 to March 1916 a correspondence of ten letters passed between Sharif Hussein of Mecca, the representative of the Arab peoples, and Sir Henry McMahon, the British High Commissioner in Cairo at that time.
Sharif Hussein offered Arab help in the war against the Turks if Britain would support the principle of an independent Arab state.
The most important letter is that of 24 October 1915 from Sir Henry McMahon to Sharif Hussein. In this letter Sir Henry McMahon wrote in the name of the government of Great Britain as follows:
"The two districts of Mersina and Alexandretta and portions of Syria lying to the west of the districts of Damascus, Homs, Hama, Aleppo cannot be said to be purely Arab, and should be excluded from the limits demanded.
With the above modification, and without prejudice to our existing treaties with Arab chiefs, we accept those limits.
As for those regions lying within those frontiers wherein Great Britain is free to act without detriment to the interests of her ally, France, I am empowered in the name of the Government of Great Britain to give the following assurances and make the following reply to your letter:
(1) Subject to the above modifications, Great Britain is prepared to recognize and support the independence of the Arabs in all the regions within the limits demanded by the Sherif of Mecca.
I am convinced that this declaration will assure the sympathy of Great Britain towards the aspirations of her friends the Arabs and will result in a firm and lasting alliance, the immediate results of which will be the expulsion of the Turks from the Arab countries and the freeing of the Arab peoples from the Turkish yoke, which for so many years has pressed heavily upon them..."[127]
However, while Great Britain was promising to Sharif Hussein Arab independence, it was at the same time secretly working with the French government on a plan as how to divide the liberated Arab territory between them.
The outcome of these negotiations was the already mentioned Sykes-Picot Agreement in April - May 1916,[128] wherein the said two powers newly shaped the Middle East and allocated portions of the Ottoman Empire into their spheres of influence and authority.
Furthermore, in November 1917, the then British Foreign Secretary Arthur Balfour made the already mentioned declaration to facilitate the establishment in Palestine of a national home for the Jewish people.
The defeat and surrender of the Ottoman Empire in the First World War brought at first jubilation to the Arabs who looked forward to a bright future of freedom and independence.
But very soon this enthusiasm diminished, as rumors began to spread that the Allied Powers had no intention of fulfilling the promises given to Sharif Hussein, but rather a "Mandate system" - which was considered by Arabs as new form of colonialism - supervised by the League of Nations was going to be prepared for them.[129]
This caused Sharif Hussein to demand an explanation by the British government, which responded in the form of several assurances and affirmations to support the fulfillment of the promises regarding Arab political freedom and independence.[130]
On 4 January 1918, two months after the Balfour Declaration was issued, a message which became known as the Hogarth Message was delivered from Commander D. G. Hogarth of the Arab Bureau in Cairo to King Hussein of the Hejaz at Jeddah. This message explicitly stated that:
" 1.)...the Arab race shall be given full opportunity of once again forming a nation in the world. This can only be achieved by the Arabs themselves uniting...
2.) So far as Palestine is concerned, we are determined that no people shall be subject to another...
3.) Since the Jewish opinion of the world is in favor of a return of Jews to Palestine, and inasmuch as this opinion must remain a constant factor, and further, as His Majesty's Government view with favor the realization of this aspiration, His Majesty's Government are determined that in so far as is compatible with the freedom of the existing population, both economic and political, no obstacle should be put in the way of the realization of this ideal."[131]
The Anglo-French Declaration of 7 November 1918 stressed again that:
"[T]he object aimed by France and Great Britain...is the complete and definite emancipation of the peoples so long oppressed by the Turks and the establishment of national Governments an Administrations deriving their authority from the initiative and free choice of the indigenous populations..."[132]
However, at the end of the First World War, it turned out that all above mentioned high-minded promises made by Great Britain and the Allied Powers to the Arabs became subject to the post-war realities of power satisfying only British and French aims in the region.[133]
5.1.2. The King-Crane Commission - Established in August 1919
At this point it seems important to point to the fact that the Balfour Declaration was not only a matter of concern for the local Palestinian Arab population, but - in those days - also for the United States (!) which regarded the strategies and goals of the Zionist movement with grave concern and doubts - as it was expressed in the Report of the King-Crane Commission of 1919.[134]
The King-Crane Commission was set up by the then U.S. President Wilson in 1919 with the purposes to visit the area of Syria - which then included Palestine and Lebanon - to investigate the situation and to make recommendations
The King-Crane Commission clearly stated that - despite the fact that the Balfour Declaration was in principle supported by all the wartime allied states - the extreme Zionist program must be greatly modified, and the project for making Palestine distinctly a Jewish State should be given up.
In order to explain and to justify its recommendations the following arguments were put forward by the King-Crane Commission:
"(3) The Commission recognized that definite encouragement had been given to the Zionists by the Allies in Mr. Balfour's often-quoted statement, in its approval by other representatives of the Allies.
If, however, the strict terms of the Balfour Statement are adhered to - favoring 'the establishment in Palestine of a national home for the Jewish people', 'it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine' - it can hardly be doubted that the extreme Zionist program must be greatly modified.
For, 'a national home for the Jewish people' is not equivalent to making Palestine into a Jewish State; nor can the erection of such a Jewish State be accomplished without the gravest trespass upon the 'civil and religious rights of existing non-Jewish communities in Palestine'.
The fact came out repeatedly in the Commission's conference with Jewish representatives, that the Zionists looked forward to a practically complete dispossession of the present non-Jewish inhabitants of Palestine, by various forms of purchase.
...in July 1918 President Wilson laid down the following principle as one of the four great 'ends for which the associated peoples of the world were fighting': 'The settlement of every question, whether of territory, of sovereignty, of economic arrangement, or of political relationship upon the basis of the free acceptance of that settlement by the people immediately concerned, and not upon the basis of the material interest or advantage of any other nation or people which may desire a different settlement for the sake of its own exterior influence or mastery.'
If that principle is to rule, and so the wishes of Palestine's population are to be decisive as to what is to be done with Palestine, then it is to be remembered that the non-Jewish population of Palestine - nearly nine-tenths of the whole - are emphatically against the entire Zionist program. The tables show that there was no one thing upon which the population of Palestine were more agreed than upon this.
To subject a people so minded to unlimited Jewish immigration, and to steady financial and social pressure to surrender the land, would be a gross violation of the principle just quoted, and of the people's right, though it kept within the forms of law.[135]
...the feeling against the Zionist program is not confined to Palestine, but shared very generally by the people throughout Syria, as our conferences clearly showed...[136]
The Peace Conference should not shut its eyes to the fact that the anti-Zionist feeling in Palestine and Syria is intense and not lightly to be flouted.
No British officer...believed that the Zionist program could be carried out except by force of arms...That of itself is evidence of a strong sense of the injustice of the Zionist program, on the part of the non-Jewish populations of Palestine and Syria. Decisions requiring armies ...are surely not gratuitously to be taken in the interests of serious injustice.
For the initial claim, often submitted by Zionist representatives, that they have a 'right' to Palestine, based on an occupation of 2.000 years ago, can hardly be seriously considered.[137]
...It must be believed that the precise meaning in this respect of the complete Jewish occupation of Palestine has not been fully sensed by those who urge the extreme Zionist program."[138]
After having considered the very facts on the ground and the aims of the Zionist program, the King-Crane Commission recommended:
"[5.]...serious modifications of the extreme Zionist programme for Palestine of unlimited immigration of Jews, looking finally to making Palestine distinctly a Jewish State.[139]
...[that] only a greatly reduced Zionist program be attempted by the Peace Conference, and even that, only very gradually initiated. This should have to mean that Jewish immigration should be definitely limited, and that the project for making Palestine distinctly a Jewish commonwealth should be given up."[140]
From the above quoted words one may easily discern the early warnings and the complete awareness by the United States that the Zionist program was to be carried out by use of arms and force.
However, the recommendations of the King-Crane Commission went unheeded by the 1919 Paris Peace Conference and the League of Nations which proceeded to implement the provisions of Article 22 of the Covenant as if all was well. As the reality later on - during the 1930's but also after the establishment of the state of Israel in May 1948 up until today - showed, all the predictions expressed in the Report of the King-Crane Commission have been proved to be true.
The above quoted passages of the King-Crane Commission Report lead me to the definite conclusion that - already in 1919 - there existed strong doubts and concerns regarding:
1. The historical right to Palestine claimed by Zionist representatives.
2. The morality of the ideological and political program of Zionism.
3. The loyalty and willingness of the Zionist movement to respect the civil and religious rights of existing non-Jewish communities - i.e. mainly the Arab inhabitants - in Palestine as it was demanded in the Balfour Declaration.
5.2. The Disturbances in Palestine in the Years 1920, 1921, 1925 and 1929
The opposition by the indigenous Palestinian Arab population to Zionism grew after the Balfour Declaration of November 1917 - when Palestinian Arabs demanded a stop to Jewish immigration and also called for the prohibition of land sales to Jews - but even more after the League of Nations granted the Mandate over Palestine to Great Britain in 1922.[141]
The first outbreaks of disorder and anti-Jewish riots by local Arab Palestinians occurred in 1920,[142] 1921[143] and 1925.[144] Waves of violence broke out again in August 1929, when Palestinian Arab guerrillas stormed a number of Jewish communities in Palestine. In the course of the 1929 riots 133 Jewish residents were killed - sixty-seven alone in the towns Hebron and Jerusalem[145] - and another 339 were wounded. On the Palestinian Arab side 116 persons were killed and 232 wounded, mostly by British troops which were brought in to re-establish law and order.[146]
5.2.1. The Shaw Commission - Established in 1929
In order to "enquire into the immediate causes which led to the recent outbreak in Palestine and to make recommendations as to the steps necessary to avoid a recurrence" a Commission of Inquiry under the chairmanship of Sir Walter Shaw was established. In its final Report, the Shaw Commission gave a detailed survey of the history of the events in 1929 and arrived at the conclusion that in conjunction with immediate causes[147] - such as Jewish and Moslem demonstrations, incitement by the Arab and Hebrew Press, propaganda among the less-educated Arab people, enlargement of the JA, inadequacy of the military forces and the belief that the decision of the Palestine Government could be influenced by political considerations - Jewish immigration[148] as well as Zionist land acquisition[149] were the foremost causes for the outbreak of disturbances:
"The fundamental cause... is the Arab feeling of animosity and hostility towards the Jews consequent upon the disappointment of their political and national aspirations and fear for their economic future... based on the twofold fear of the Arabs that by Jewish immigration and land purchase they may be deprived of their livelihood and in time pass under the political domination of the Jews."[150]
The Shaw Commission noticed that the Arab position was acute, due to the following facts:
"...Between 1921 and 1929 there were large sales of land in consequence of which numbers of Arabs were evicted without the provision of other land for their occupation... The Protection of Cultivators Ordinance of 1929 ...does nothing to check the tendency towards the dispossession of cultivators from their holdings... There is no alternative land to which persons evicted can remove. In consequence a landless and discontented class is being created. Such a class is a potential danger to the country. Unless some solution can be found to deal with this situation, the question will remain a constant source of present discontent and a potential cause of future disturbance..."[151]
The Shaw Commission also issued several recommendations and attached the most importance to the first one, namely
"...that the Government of Palestine should issue a clear statement of policy containing (a) a definition of the meaning of the passages in the Mandate providing for the safeguarding of the rights of the non-Jewish communities in that country and (b) directions more explicit as to the conduct of policy on such vital issues as land and immigration."[152]
The native Palestinian Arabs considered the findings of the Shaw Commission Report as a triumph, whereas the Zionists were outraged.[153] The result of the Shaw Commission Report was the appointment of Sir John Hope Simpson, who was charged to report on the economic conditions of Palestine and to investigate issues of immigration, land settlement, and development.
5.2.2. The Hope Simpson Report - Published in October 1930
The Hope Simpson Report was published in October 1930, and pointed to the small size of Palestine, of which more than three quarters were "uncultivable" by current methods of cultivation and therefore unavailable for agricultural settlement by new immigrants. The Hope Simpson Report also stated that large land sales by Jews resulted in the displacement of the indigenous Arabs, an issue which has not been resolved.
Regarding future immigration, the Report stated that with comprehensive development there would be room for not less than 20.000 families of settlers from outside. Among the recommendations issued by the Hope Simpson Report there was the need for a more methodical agricultural development system.[154]
5.2.3. The Passfield White Paper - Published in October 1930
Concurrently with the Hope Simpson Report, the British government issued in October 1930 a further Statement of Policy - which became known as the Passfield White Paper.[155]
The Passfield White Paper reaffirmed the findings of the Shaw Commission Report, postponed any statement of future policy on immigration, land settlement and development, and did not accept the recommendations for economic development contained in the Hope Simpson Report.
In more detail the Passfield White Paper was, inter alia, especially critical concerning the discriminatory orientation, organization and operation of the Jewish Agency[156] which has been established in 1922 and constituted in 1929.
The Passfield White Paper states on this issue as follows:
" 18. ...the effect of Jewish colonisation on the Arabs in the neighborhood has been advantageous,...relating to Colonies established by the P.I.C.A. [Palestine Jewish Colonisation Association] before colonisation financed from the Palestine Foundation Fund, which is the main financial instrument of the Jewish Agency, came into existence.
Some of the attempts which have been made to prove that Zionist colonisation has not had the effect of causing the previous tenants of land acquired to join the landless class have on examination proved to be unconvincing, if not fallacious.
19. Moreover, the effect of Jewish colonisation on the existing population is very intimately affected by the conditions on which the various Jewish bodies hold, utilise and lease their land. It is provided by the Constitution of the Enlarged Jewish Agency, signed at Zürich on the 14th August, 1929 (Article 3 (d) and (e)), that the land acquired shall be held as the "inalienable property of the Jewish people, " and that in "all the works or undertakings carried out or furthered by the Agency, it shall be deemed to be a matter of principle that Jewish labour shall be employed." Moreover, by Article 23 of the draft lease, which ist is proposed to execute in respect of all holdings granted by the Jewish National Fund, the lessee undertakes to execute all works connected with the cultivation of the holdings only with Jewish labour. Stringent conditions are imposed to ensure the observance of this undertaking.
... These stringent provisions are difficult to reconcile with the declaration at the Zionist Congress of 1921 of "the desire of the Jewish people to live with the Arab people in relations of friendship and mutual respect, and, together, with the Arab people, to develop the homeland common to both into a prosperous community which would ensure the growth of the peoples. "
20. The Jewish leaders have been perfectly frank in their justification of this policy. The Executive of the General Federation of Jewish Labour, which exercises a very important influence on the direction of Zionist policy, has contended that such restrictions are necessary to secure the largest possible amount of Jewish immigration and to safeguard the standard of life of the Jewish labourer from the danger of falling to the lower standard of the Arab.
However logical such arguments may be from the point of view of a purely national movement, it must, nevertheless, be pointed out that they take no account of the provisions of Article 6 of the Mandate [for Palestine of 1922], which expressly requires that, in facilitating Jewish immigration and close settlement by Jews on the land, the Administration of Palestine must ensure that "the rights and position of other sections of the population are not prejudiced"." [Emphasis added][157]
The issuance of the Passfield White Paper constituted a major defeat for the Zionist movement, due to the fact that - for the first time - the Jewish leaders had not been kept informed of London's plans.[158]
The Passfield White Paper can be considered as a clear attempt by the British government to reverse the policy initiated by Arthur Balfour and Lloyd George in 1917, and therefore it was also heavily attacked by the Zionist movement.
5.2.4. The Ramsay MacDonald Letter - Issued in 1931
However, under pressure from all sides, the British government decided in 1931 to issue a new Statement of Policy - known as the Ramsay MacDonald Letter - which annulled the provisions of the Passfield White Paper.[159]
5.3. The General Strike in 1936 and the Open Rebellion from 1936 to 1939
The situation in Palestine continued to deteriorate after Hitler's rise to power in Germany in 1933 and after the Jews had began to emigrate from Europe and to come to Palestine.
In these new immigration waves the native Palestinian Arabs saw a new danger resulting in the presentation of a joint memorandum by five Arab parties in November 1935 calling, inter alia, for the establishment of a democratic government, the prohibition of the transfer of Arab lands to Jews, the immediate cessation and the investigation of Jewish immigration into Palestine.[160]
But none of these demands were fulfilled with the result that the native Palestinian Arabs declared a general strike for six full months.
It should be stressed at this point that the then Zionist leadership of Palestine had totally recognized that Jewish immigration and the purchase of land by Jews constituted the very reasons for the negative attitude of the Palestinian Arab community and the conflict with them.
Thus, for instance, Avraham Granovsky, a leading figure of the JNF, noted in 1936:
"It has long been recognized that Jewish immigration and the acquisition of land by Jews is the apple of discord between the two peoples of Palestine. It is no accident that the Arab nationalists have set the stoppage of Jewish immigration in the forefront of their claims, and coupled it with a demand for a ban on the purchase of land by Jews."[161]
Nevertheless, immigration of Jews into Palestine and purchase of land by Jews continued, leading - among other factors - to the open rebellion by Palestinian Arabs in 1936, which lasted three years until the outbreak of World War II in 1939.[162]
5.3.1. The Royal (Peel) Commission - Established in 1936
With the rebellion in progress, the British mandatory government established another Commission of Inquiry - i.e. the Peel Commission - which reached in its final Report in 1937 the conclusion that under the existing Mandate (or even a scheme of canonization) there was no possibility of solving the Palestine problem.
The Commission therefore recommended the termination of the present Mandate and put forward a plan for the partition of Palestine into two independent states - an Arab State and a Jewish State.[163]
The 1937 Peel Commission Report also included a criticism of the Palestine administration and recommended that, if the Mandate were to continue without partition, sales of land to Jews should be prohibited in certain areas and immigration be limited to 12.000 persons for five years.[164]
The 1937 Peel Partition Plan was accepted as a basis for negotiations by the Zionist leadership of Palestine, but was rejected by the Arab High Committee under Haj Amin al-Husseini, the Mufti of Jerusalem, acting on behalf of the Palestinian Arab majority.[165]
5.3.2. The MacDonald White Paper - Issued in 1939
The Palestinian Arab revolt continued with widespread terror, arson and general strikes - directed against the Jewish population and the British mandatory government - and could only be put down with the use of British tanks and aircraft.[166]
Under the said circumstances the British mandatory government decided a dramatical shift in its policy and issued in May 1939 a Statement of Policy - which became known as the MacDonald White Paper[167] - wherein the idea that Palestine should become a Jewish State was abolished.
The 1939 MacDonald White Paper decided, inter alia:
1. That an independent state should be established in which Arabs and Jews share in government as to ensure that the essential interests of each community are safeguarded;[168]
2. That Jewish immigration to Palestine would be limited up to 75.000 for five years and afterward it should be contingent on Arab acquiescence;[169]
3. That after the period of five years the British government was under no obligation to facilitate the further development of the Jewish national home by immigration regardless of the wishes of the Arab population;[170]
4. That - due to the natural growth of the Arab population and the steady sale in recent years of Arab land to Jews - there is now in certain areas no room for further transfers of Arab land, whilst in some other areas such transfers of land must be restricted if Arab cultivators are to maintain their existing standard of life and a considerable landless Arab population is not soon to be created.[171]
In spite of these restrictions Jewish immigrants began to arrive by boatloads, since this was the only way for them to escape from Nazi persecution and Nazi extermination in Hitler Germany and Europe, and to survive the Holocaust where 6 millions of Jews were murdered in the concentration camps and their gas chambers.
The 1939 MacDonald White Paper was totally rejected by the Jewish community and its leadership living in Palestine at this time, and one day after its publication the JA issued the following statement:
"The Jewish people views this policy as a breach of faith, a surrender to Arab terror, the delivery of British friends to her enemies, the creation of a schism between the Jews and the Arabs, and the destruction of any chance to peace in Palestine. The Jewish people will not accept this policy. The new regime as announced in the white paper is solely and simply a government founded on force, bereft of any moral basis and opposed to international law, and it will not arise except by force."[172]
As it has been expressed by Pnina Lahav, an Israeli jurist and professor of constitutional law at the Boston Harvard University, the 1939 MacDonald White Paper virtually constituted the "casus belli" for the Jewish community living then in Palestine.
In an article dealing with Israel's Press Regulations, she describes the events of those days in the following way:
"Harassed by the Arab terror and total lack of internal security, exasperated over Nazi persecution of Jews in Europe, and anxious over mounting indications that Britain was about to forsake their cause, the Jews declared war against the Mandatory regime. And so, with the exception of several months when the parties focus on the drama of the Second World War, Palestine turned into a battleground where Jews and Arabs fought each other and against the British, while the regime desperately tried to ward off the attack on all fronts."[173]
5.4. The Period from 1940 until the Adoption of the United Nations General Assembly Resolution 181 (II) of 29 November 1947
Since the issuance of the 1939 MacDonald White Paper the Arab political activities and rebellion came to a complete halt during the war years, while Zionist terrorist activities against the British mandatory government increased.
The anti-British Jewish terrorist groups Irgun Zvai Leumi (also called "IZL" or "Etzel") and the Lohamei Herut Yisrael (also called "Lehi" or "Stern group") started to engage in violent terrorist attacks against British officials and security forces.
The British authorities responded with harsh methods, arresting dozens of Jews and transferring them without trial to prison camps in Palestine and Eritrea.
This development reached its peak in July 1946 with the explosion of the King David Hotel in Jerusalem which was serving as the central offices of the civilian administration. It caused the death of 91 people and was one of the most violent and bloody terrorist act against the British mandatory government performed by the Jewish underground.[174]
The above mentioned Arab and Jewish revolts and acts of terrorism, the constant efforts by Great Britain to stop or limit Jewish immigration, as well as the moral and political pressure exercised by the Holocaust and by the growing pro-Zionist American involvement convinced the British government that the termination of the Mandate and withdrawal from Palestine would be inevitable.
Subsequently, Great Britain brought the matter before the United Nations and called for a special session of the General Assembly should prepare a study on the question of Palestine.[175]
This special session took place on 28 April 1947 where the General Assembly established the United Nations Special Committee on Palestine (UNSCOP) which was composed of eleven member states.[176]
The mandate of UNSCOP was to ascertain and record facts, and to investigate all questions and issues relevant to the problem of Palestine; to prepare a report to the General Assembly and to submit proposals for the solution of the problem of Palestine to be considered by the regular session of the General Assembly which should take place in September 1947.[177]
At this special session the Jewish case was presented by the Jewish Agency (JA) for Palestine,[178] while the Arab Higher Committee (AHC) spoke for the Palestinian Arabs.[179]
It is important to mention at this point that five Arab member states[180] tried to include in the agenda of this special session an item:
1. Which would address the question of Palestine's independence.
2. Which would separate the issue of European Jewish refugees from the question of Palestine.
But the United Nations had refused to address these questions, leading to the situation that the Palestinian leadership in the Arab Higher Committee did neither cooperate with UNSCOP nor participate in its final deliberations.
The Palestinian Arabs were of the opinion that their natural rights were self-evident and cannot be subjected to investigation.
After a three month investigation, during which the members of UNSCOP visited Palestine, Lebanon, Syria, Transjordan, as well as the displaced persons camps in Europe which were packed with Holocaust survivors, it finally completed its work on 31 August 1947.[181]
In their Report the UNSCOP members agreed on the issues of termination of the British Mandate, on the principle of independence and the role of the United Nations, but they did not reach any consensus on a settlement of the question of Palestine itself.[182]
The majority of the members of UNSCOP (Canada, Czechoslovakia, Guatemala, the Netherlands, Peru, Sweden and Uruguay) recommended that Palestine be partitioned into an Arab and a Jewish state, with Jerusalem as a corpus seperatum.[183]
The minority of the members of UNSCOP (India, Iran and Yugoslavia) proposed an independent federal state comprising an Arab and Jewish state, with Jerusalem as the capital of the federation.[184]
Only one member (Australia) abstained from voting on either plan because it believed that the recommendations exceeded the Committee's terms of reference.[185]
After a two-month-long debate, the General Assembly of the United Nations adopted finally Resolution 181 (II) which recommended - with some minor changes - the adoption and implementation of the majority UNSCOP - Plan of Partition with Economic Union.
The Arab community of Palestine as well as the surrounding Arab states rejected the Partition Plan on the grounds that it violated the provisions of the United Nations Charter, which granted to all peoples the right to self-determination, i.e. the right to decide their own destiny.[186]
5.5. The Period after the Adoption of the United Nations General Assembly Resolution 181 (II) of 29 November 1947 until the Signment of Armistice Agreements in 1949
Following the adoption of the United Nations Partition Resolution 181 (II) by the General Assembly on 29 November 1947, a mixture between a civil and guerrilla warfare between the Palestinian Arab and the Jewish communities broke out.[187]
This civil war became an international conflict on 15 May 1948 one day after the leadership of the Jewish community of Palestine had declared the establishment of the State of Israel, causing the invasion of the neighboring Arab countries - Transjordan, Syria, Lebanon, Egypt and Iraq - which had sent troops in order to defend the Palestinian civilian population.[188]
It must be stressed at this point that the Jewish community of Palestine was militarily and administratively enormously superior to the native Palestinian Arab community which, at that time, was mainly a rural society based first of all on the village rather than the district or the country.[189]
The Palestinian villages tended to be economically self-sufficient as well as socially and politically self-centered and self-contained. Consequently the Palestinian Arab rural society was - beyond the village structure - largely apolitical and uninvolved in national-political affairs.[190]
The mentality of the native Arab inhabitants of the villages was basically not offensive, but rather defensive. In contrast to them, however, the Jewish settlements were marked by a pioneering and frontier spirit, built not only with defence in mind, but also with trenches, bunkers and shelters.[191]
During April and May 1948 the main Jewish militia - the Haganah (the Defence) - could therefore easily switch to the offensive, causing the Palestinian masses in each area conquered to flee from their towns and villages.[192]
In the course of the war in 1948 following the establishment of the state of Israel and in early 1949, the Israeli army conquested parts of Palestine which - according to the Partition Plan - were never allotted to the Jewish state.[193]
In 1949 after the signing of General Armistice Agreements[194] between Israel and the neighboring countries, the state of Israel was established on 72 % of the whole formerly British Mandatory Palestine, and included parts of Palestine which were previously inhabited by a majority of native Palestinian Arabs.
The majority of these former native Palestinian Arab residents of the conquered villages and towns - approximately two third of the then Arab population living in the area - were expelled or took flight.
In several cases - as it happened for example with the villages of Khisas,[195] Qazaza,[196] Deir Yassin,[197] Khirbet Nasir ad Din,[198] Beit Daras,[199] Ad Dawayima[200] - the Palestinian Arab inhabitants were even massacred by Jewish Zionist forces.[201]
In the massacre at the village of Deir Yassin - it lays on the western outskirts of Jerusalem - 250 unarmed civilian Arab men, women and children were killed by the two Jewish terrorist organizations Irgun Zvai Leumi (IZL) and Lehi, in cooperation with the Hagana commander in Jerusalem. This massacre took place on 9 April 1948 and had become a symbol of Zionist aggression against the Palestinian Arab population.
The massacre was broadcasted by the Arab media of Palestine for days and weeks in all its atrocity and terrible details, and had a tremendous psychological impact on many other Arab communities of Palestine. Without doubt this massacre was an accelerating factor in the general evacuation and expulsion of Palestinian Arabs.
Menachem Begin - who in 1977 became Prime Minister of the state of Israel - was the commander of the Irgun Zvai Leumi (IZL) at the time when the massacre took place. In his book "The Revolt" he wrote in this context that
"...the Deir Yassin massacre helped in particular in the expulsion policy in Tiberias and Haifa."[202]
As the reality later on showed, most of the indigenous Palestinian Arab refugees have never been permitted to return to their towns and villages, despite the fact that since the spring of 1948 (and later on during the years of 1949-1950) they strongly tried to do so.[203]
Since summer 1948 the Israeli government was even subjected to strong international pressure - first by the later murdered United Nations Mediator Count Folke Bernadotte, and, then, by the United States - in favor of mass repatriation of the refugees.[204]
Count Folke Bernadotte, the President of the Swedish Red Cross, was appointed to the post of the United Nations Mediator for Palestine on 20 May 1948, and was primarily involved in efforts to mediate between the parties and to promote a truce.
Nevertheless, he also dealt with the refugee problem and made suggestions to the Israeli government for the return of at least a limited number of refugees to their homes. But all these proposals were refused.[205]
In June 1948, the Israeli government dealt with this issue and definitely decided to block any return of the Palestinian Arab refugees.[206]
Additionally, on 1 August 1948, two and a half months after the declaration of the state of Israel, the then Minister for Foreign Affairs of the Provisional Government of Israel, Moshe Shertok, sent a letter to the United Nations Mediator, Count Folke Bernadotte, and announced Israel's policy towards the Palestinian Arab refugees as follows:
"When the Arab states are ready to conclude a peace treaty with Israel this question [of refugees] will come up for constructive solution as part of the general settlement, and with due regard to our counterclaims in respect of the destructions of Jewish life and property, the long-term interest of the Jewish and Arab populations, the stability of the State of Israel and the durability of the basis of peace between it and its neighbours, the actual position and fate of the Jewish communities in the Arab countries, the responsibilities of the Arab governments for their war of aggression and their liability for reparation, will all be relevant in the question whether, to what extent, and under what conditions, the former Arab residents of the territory of Israel should be allowed to return."[207]
Nevertheless, in his Report to the Security Council on 1 August 1948, and again in his Progress Report on this issue of 16 September 1948, Count Folke Bernadotte explicitly stated that "notwithstanding the view expressed by the Provisional Government of Israel", the right of the refugees to return to their homes should be affirmed. The use of the expression "affirmed" - rather than be established - suggests that Count Bernadotte was of the opinion that the right of refugees to return already formed part of existing international law.[208]
In more detail and especially with regard to the political[209] and legal aspects of the Palestinian Arab refugee issue, Count Folke Bernadotte stated as follows:
"It is, however, undeniable that no settlement can be just and complete if recognition is not accorded to the right of the Arab refugee to return to the home from which he has been dislodged by the hazards and strategy of the armed conflict between Arabs and Jews in Palestine. The majority of these refugees have come from territory which, under the Assembly resolution of 29 November, was to be included in the Jewish State. The exodus of Palestinian Arabs resulted from panic created by fighting in their communities, by rumors concerning real or alleged acts of terrorism, or expulsion. It would be an offence against the principles of elemental justice if these innocent victims of the conflict were denied the right to return to their homes while Jewish immigrants flow into Palestine, and, indeed, at least offer the threat of permanent replacement of the Arab refugees who have been rooted in the land for centuries." [Emphasis added][210]
"... The right of the Arab refugees to return to their homes in Jewish-controlled territory at the earliest possible date should be affirmed by the United Nations, and their repatriation, resettlement and economic and social rehabilitation, and payment of adequate compensation for the property of those choosing not to return, should be supervised and assisted by the United Nations conciliation commission..." [Emphasis added][211]
But the efforts of the United Nations Mediator Count Folke Bernadotte ended when he was assassinated on 17 September 1948 by Jewish terrorists - only one day after he had submitted the last Progress Report to the Security Council.[212]
Two months later, on 11 December 1948, Count Folke Bernadotte's recommendations concerning the refugee issue were approved and accepted by the United Nations in the General Assembly Resolution 194 (III).[213]
Paragraph 11 of this Resolution 194 (III) deals specifically with the right to return of the Palestinian refugees by stating that the General Assembly
"Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity should be made good by the Governments or authorities responsible.
Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief and Works Agency for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations."
Originally the Arab states voted against Resolution 194 (III), but by spring 1949 they began to reverse their position and became its strongest advocates, and Paragraph 11 became the standard reference point of the Palestinian refugees' cries for justice.[214]
Shortly after the establishment of the state of Israel a series of legal measures - mostly in the initial form of emergency regulations - were adopted in order to institutionalize the blockage of Palestinian return by declaring many of the Palestinian Arab refugees as "absentees"[215] and by legalizing the expropriation of so called "abandoned Arab property".[216]
Moreover, most of the conquered and emptied villages were systematically destroyed by the Israeli government, Arab fields were cultivated and/or destructed, Arab owned lands were shared-out to Jewish settlements, Jewish settlements were established on Arab owned abandoned lands and Jewish immigrants were settled in empty Arab houses.[217]
All these actions on the ground totally changed the physical and demographical face of Palestine, and taken collectively, they made the possibility of a return of the refugees more and more difficult, until, by mid-1949, it became almost inconceivable.[218]
Benny Morris, a British historian who provided the most detailed account of the exodus of Palestinian refugees in his study "The Birth of the Palestinian Refugee Problem, 1947-1949" wrote in this context as follows:
"About 350 Arab villages and towns were depopulated in the course of the 1948-9 war and during its immediate aftermath. By mid-1949, the majority of these sites were either completely or partly in ruins and uninhabitable."[219]
Israel Shahak, professor of chemistry at the Hebrew University, has calculated that almost 400 Palestinian Arab villages were eliminated - during the war in 1948 and in early 1949 - and that they were
"...destroyed completely, with their houses, garden-walls, and even cemeteries and tombstones, so that literally a stone does not remain standing, and visitors are passing and being told that 'it was desert."[220]
None of the destroyed Palestinian Arab villages have ever been built up again,[221] but rather in their place on the same land and on their ruins, the new state of Israel - with new settlements conceived this time, however, solely for Jewish immigrants - has been built.[222]
In addition to the laws which were enacted and applied regarding the right to property, two other laws concerning the right to citizenship - namely the Law of Return, 1950[223] and the Nationality Law, 1952[224] - were enacted.
These laws established a legal regime that guarantees all Jews virtually automatic right to emigrate to Israel and to become Israeli citizens, while denying the same right to the hundreds of thousands of Palestinian Arabs who fled in the course of the events of the establishment of the state of Israel in 1948.
The Israeli decision not to allow the refugees to return lead to the creation of the huge number of Palestinian Arab refugees who until today live in temporary camps built up by the United Nations in the surrounding countries of Lebanon, Syria, Jordan, as well as the West Bank and the Gaza Strip.
These Palestinian Arab refugees find themselves until today disconnected from the land which is equally important for their national identity as for many Jews.
There exist different numbers of Palestinian Arab refugees emerging out of the war that took place in the years from 1947 to 1949.[225]
- 520.000 this is the lowest number; it is given as official number by the Israeli government;
- 600.000 up to this is the contemporary formula given by the British
760.000 Foreign office;
- 800.000 this is the number given by the United Nations Relief and Works Agency for Palestine Refugees in the Middle East (UNRWA).[226]
However, it is important to mention that within the borders of Israel under the 1949 Armistice Agreements,[227] there only remained 158.000 (!) native Palestinian Arabs[228] (compared with more than 780.000 Palestinian Arabs that lived in the same area prior to the war).
In the course of this work I will show that - after the establishment of the state of Israel in Palestine - the policies of the Zionist movement in Palestine had turned into the policies of an independent and sovereign state, which could now use all its law-making monopoly in order to restrict basic rights and freedoms.
Although, the relatively small number of Palestinian Arabs that remained within the borders of Israel under the 1949 Armistice Agreements became Israeli citizens, they were regarded as the "real or potential enemies" of the newly created state of Israel, since they represented the members of "the other collective" in the decades old struggle between the two collectives (i.e. the Jewish and the Arab) in Palestine.
In accordance with this basic approach towards these Palestinian Arab citizens, the Israeli government subjected the regions, where they resided to the regime of Military Government in order to control them and to limit their fundamental rights and freedoms.[229]
The discriminatory approach towards the native Palestinian Arab people is especially reflected in the use of laws, regulations and Supreme Court decisions dealing with the right to ownership of land,[230] the right to citizenship and nationality,[231] the right to equality,[232] the right to freedom of movement[233] and in so called "security matters."[234]
6. Summary and Conclusions
1. The state of Israel is based on the political ideology of the Zionist movement, which emerged at the end of the 19th century in response to the growing anti-Jewish racism in Europe and Russia. The concept of political Zionism intended "to establish a Jewish national home in Palestine" in order to solve the problem of anti-Semitism in the West.
The traditional aims of the concept of political Zionism were to promote Jewish immigration and to ensure exclusive Jewish ownership of and sovereignty over the land in Palestine.
The concept of political Zionism is a special form of the idea of nationalism and manifests itself in several forms.
Ian Lustick, professor of sociology at the Hebrew University, expressed the ideology, the aims and the activities of the Zionist movement during the Ottoman and British Mandate period in the following way:
"...the central objective of the Zionist movement in the pre-state era was the creation of the economic, social and political infrastructure of the Jewish state. ...the creation of an autonomous Jewish economy with the capacity for sustained growth and large-scale immigrant absorption. ...an economy, with a solid agricultural and industrial foundation, ... built with Jewish capital, by Jewish labor, using Jewish expertise, and for a Jewish market [because only] in this way it would be secure from Arab boycotts, strikes, or other sanctions."[235]
2. The Balfour Declaration, 1917 - which was later also incorporated into the text of the Mandate for Palestine in 1922 - conferred upon Great Britain the responsibility to exercise a dual policy towards two different peoples which both claimed the same territory as their "own" land - their "homeland".
Although the Balfour Declaration, the British Mandate for Palestine, as well as several other documents provided for a concept of political equality by asserting that
"...nothing shall be done to prejudice the civil and religious rights of the existing non-Jewish communities..."
this statement was actually not equivalent to the promise of
"...the establishment of a national home for the Jewish people..."
which was made to the leaders of the Zionist movement and which - in reality - meant the promise to realizing the right to self-determination of the Jewish people alone and at the expense of the Palestinian Arab people and their right to self-determination.
Considering the real nature and content of these above mentioned promises,[236] I come to the conclusion that the responsibilities conferred upon Great Britain could never be truly reconciled.
The reason for this state of affairs lays in the fact that the "national home" policy's underlying concept was Zionism, an ideological and political concept that always was - and still is - characterized by an almost total disregard for the native Arab and/or non-Jewish population in most of the conceptual terms - or expressed in less drastic words - by an extraordinary unevenness in the care for the Jewish population compared with the native Arab inhabitants and/or non-Jewish population of the state.
To sum up the concept of Zionism, one may say that whatever was - and still is - looking positively from the Zionist point of view was - and still is - looking absolutely negatively from the native Arab Palestinian point of view.
For, the latter group - i.e. the native Arab Palestinians - never could (and actually never can) really fit equally into the concept of the Zionist movement and its "vision" of a Jewish nation-state.
3. The results of my comprehensive researches lead me to the conclusion that the Palestinian Arab people understood from the very beginning the essential points of the Balfour Declaration and the Mandate for Palestine.
These two documents are the most important ones which acknowledged the idea of political Zionism - leading to the realization of the right to self-determination of the Jewish people - while at the same time reducing the political status and the chances to self-determination of the native Palestinian Arab inhabitants in relating to them merely as "the existing non-Jewish communities".
A vast number of historical documents prove that the Palestinian Arab people clearly understood that the Jewish Zionist community in Palestine was not looking just for a "cultural centre", but that it rather wanted to establish a position of power and an own state.
These documents also prove that the indigenous Palestinian Arabs understood that the Jewish immigrants intended to become eventually a majority and one day - through their superior organizations, such as the WZO, the JA and the JNF with their enormous economic strength nourished by many rich Jews/Zionists all over the world - the masters of the country.
The vast number of historical documents also show that the indigenous Palestinian Arab inhabitants feared that - as a result of the mentioned developments - they would be reduced to the status of a minority[237] or even be transferred to the neighboring Arab countries.[238]
As I clearly see it, this understanding was not simply drawn from the increased Jewish immigration and acquisition of land by the Zionist movement, but could specifically be learned from various writings and speeches of Zionist leaders and opinion makers, which - from the very beginnings of the existence of political Zionism - suggested the idea of an Arab population transfer.[239]
The specific demand for a "national home for the Jewish people" seemed to - and later actually really did - totally exclude the indigenous Palestinian Arab population from its political, territorial and economic concept.
The vast number of historical documents show that the indigenous Palestinian Arabs rejected the activities of the Zionist movement and the Balfour Declaration not because they feared "proletarization", but because they anticipated that there was no place for them in the concept of political Zionism.
The extensive researches that I conducted with regard to the attitude of the native Arab people towards immigrating Jews to Palestine, lead me to the conclusion that the Palestinian Arab opposition was not directed against the individual Jew,[240] but rather was this opposition directed against the concept of political Zionism which
"...aimed to create a society that could never be anything but 'native' (with the minimal ties to a metropolitan center) at the same time that it determined not to come to terms with the very natives it was replacing with new (but essentially European) 'natives'."
- as it was well expressed by Edward W. Said, professor of English and Comparative Literature at Columbia University.[241]
4. The results of my researches lead me to the further conclusion that the Zionist movement was - from the very beginnings and throughout all times of its activities in Palestine - fully aware of the existence[242] of the native Palestinian Arab population as well as of their growing opposition towards the project of political Zionism with its aim "to establish a Jewish national home in Palestine".
The Zionist movement also clearly understood - throughout all times - that these native Palestinians would never accept any transformation of Arab Palestine into a Jewish national home.[243]
Numerous speeches,[244] articles[245] and books[246] written and published by leading Zionist figures throughout all times, the recommendations of the King-Crane Commission in 1919,[247] as well as the reports of numerous commissions of inquiry established by the British mandatory government of Palestine[248] give evidence to the above mentioned facts namely: The Zionists' awareness of the existence of the native Palestinian Arab people and their growing opposition towards political Zionism and their absolutely negative approach towards any transformation of Arab Palestine into a Jewish nation state.
Zeev Sternhell, professor of political sciences at the Hebrew University, also points to these facts. In his already mentioned book "The Founding Myths of Israel" he writes as follows:
"The building of the Yishuv was accompanied by a constant struggle with a stubborn Arab opposition to Zionist goals. Contrary to the claim that is often made, Zionism was not blind to the presence of Arabs in Palestine. Even Zionist figures who had never visited the country knew that it was not devoid of inhabitants. At the same time, neither the Zionist movement abroad nor the pioneers who were beginning to settle the country could frame a policy toward the Palestinian national movement. The real reason for this was not a lack of understanding of the problem but a clear recognition that there was an insurmountable contradiction between the basic objectives of the two sides. If Zionist intellectuals and leaders ignored the Arab dilemma, it was chiefly because they knew that this problem had no solution within the Zionist way of thinking...
...in general both sides understood each other well and knew that the implementation of Zionism could be only at the expense of the Palestinian Arabs. The leadership of the Yishuv did not conceal its intentions, nor was it able to do so. Similarly, the Arabs, who knew from the beginning that Zionism's aim was the conquest of land, made perfectly clear the refusal to pay for the Jewish catastrophe."[Emphases added][249]
Nevertheless, it is evident that the most Zionists chose to ignore these facts and preferred to rely on historical rights, religious determination, and economic means to acquire the land of Palestine whether the Palestinian Arabs agreed or not.
5. Since the early days of the Zionist movement and their settlement activities in Palestine - up until today - everything between the two communities involved in the conflict - i.e. the Israeli/Jewish/Zionist and the Palestinian/Arab - centers around two basic and interrelated issues:
The one issue concerns the demographic realities on the ground, i.e. the question which community constitutes the majority within the whole population.
The other issue concerns the territorial realities on the ground, i.e. the question which community has sovereignty and ownership over the land.
Physical control and sovereignty over the historic land of Palestine ["Eretz-Israel"] constitutes one of the basic elements for the national identity of the Palestinian Arab and the Jewish people.
Hence, the sovereignty and ownership over this land was and still is the ultimate goal in the political concept of both peoples.
a. For the Jewish people the land in question is called "Eretz-Israel" and means their ancient homeland from which this people has been exiled 2000 years ago.
From the point of view of political Zionism, the return of the Jewish people to their ancient homeland, and the establishment of a "national home" was seen as revolutionary steps liberating the Jewish people from their status as persecuted minority in the Diaspora.[250]
b. For the Palestinian Arab people on the other hand, exactly the same land is called "Palestine", and means their ancient homeland on which this people was living from times immemorial until the days when al-Nakba (the Catastrophe) took place - i.e. when the majority of the Palestinian Arabs took flight or were expelled in the course of the war that broke out after the UN-GA Resolution 181 (II) of 29 November 1947 was adopted and implemented, and after the state of Israel was established in Palestine.
From the point of view of the Palestinian Arab people the whole Zionist enterprise, the settlement activities, the ideological basis and the political program of a Jewish national state was (and still is) - from the very beginnings - seen as a threatening and aggressive movement or simply as an invasion.[251]
6. In its Report of 31 August 1947, the United Nations Special Committee on Palestine (UNSCOP), i.e. the body which drew up the Partition Plan of Palestine, considered both above mentioned issues, namely the demographic as well as the land issue.
Regarding the demographic composition of the whole population of mandatory Palestine this Report states that there were:
- 498.000 Jews and 497.000 Arabs (90.000 Bedouins) in the area allotted to the Jewish state;
- 10.000 Jews and 725.000 Arabs in the area allotted to the Arab state;
- 100.000 Jews and 105.000 Arabs in the city of Jerusalem.[252]
Reading these numbers one may easily discern that according to the UNSCOP Plan there was only a majority of 1000(!) Jews (=498.000) in the proposed Jewish state, while a large part of the native Palestinian Arab inhabitants (=497.000) should have come under Jewish rule.
7. Important to mention is the fact that the right to self-determination of one part of the Arab people of Palestine was recognized - for the first time - only by the UN-GA Resolution 181 (II) of 29 November 1947, while the right to self-determination of the Jewish people was already recognized by Great Britain in the Balfour Declaration, 1917 - which was later also incorporated into the text of the Mandate for Palestine in 1922.
However, reading the UN-GA Resolution 181 (II) one may easily discern that - seen from the Palestinian Arab perspective and considering the facts on the ground - the therein established "Partition Plan" could not be considered as really fair for the Palestinian Arabs people. This is revealed by the following facts:
In the year 1947 there lived in British mandatory Palestine:
- » 1.2 to 1.3 million Palestinian Arabs,[253] and
- » 608.000 Jews
The UN-GA Partition Resolution 181 (II) - which was based upon the majority UNSCOP Plan of Partition with Economic Union - provided that:
- The proposed Jewish state should comprise 56,47%, = 15,261,648 dunams land of the total land area of mandatory Palestine.[254]
- The proposed Arab state should comprise 42,88% = 11,589,868 dunams land of the total
land area of mandatory Palestine.[255]
- Almost 497,000 Palestinian Arabs would have come under Jewish rule.[256]
For the Palestinian Arab people - living for generations in the same land which according to the UN Partition Resolution 181 (II) should become a Jewish state - the partition of Palestine meant the very realization of the concept of political Zionism - which as we have seen in the earlier sub-chapters - was aimed towards the deprivation of a large part of the native Arab inhabitants of Palestine of their lands and their right to self-determination.
Therefore - from the Palestinian point of view - it was only a logical reaction to reject any proposals for a partition of Palestine, and to consider such an act as illegal, despite the fact that the UN Partition Resolution 181 (II) of 29 November 1947 contained a formal statement to establish two bi-national states, where all citizens should be treated equally.
In that context it should be mentioned that the Israeli government commonly claims that the events of 1948 occurred because the Palestinian Arab people rejected the UN Partition Resolution 181 (II), thus causing their dispersion and hardship.
But - considering the ideological and political concept of Zionism - it becomes evident that these claims are a falsification of facts, since the UN Partition Resolution 181 (II) was a blatant violation of the right to self-determination of the Palestinian Arab people which only exercised its right to protest.
Although Jewish immigration and Jewish enterprise have conferred benefits on Palestine in which the Arab people always shared, these advantages to the Arabs have been accidental to the main purpose of the enterprise and did never form part of the basic aims of Zionism.
8. The historical sources as well as the legal and judicial material of the later state of Israel give evidence to the fact that the native Arabs of Palestine anticipated all the negative developments and events which - after the state of Israel had come into being - indeed materialized themselves in the worst form.
9. The aim of all positions of Zionism was to achieve possession and ownership of all the lands of Palestine - which were considered by the Zionist movement as the "historical lands of Eretz Israel" - at the expense of the native Arab inhabitants and their fundamental rights and freedoms.
Many writings and speeches of Zionist leaders as well as the establishment of specific Zionist Institutions - such as the World Zionist Organization (WZO), the Jewish Agency (JA) and the Jewish National Fund (JNF) based upon the principles of "inalienability of land" and the employment of solely "Jewish labour" - prove, that the concept of political Zionism aimed to create a national home in Palestine for the Jewish people alone from which the indigenous Palestinian Arabs - as belonging to a not eligible group - should be excluded, at best be discriminated, but certainly not be treated equally.
10. The concept of political Zionism is in fact - until today - an unchanged and uniform concept, since the basic aim to occupy as much land as possible and whenever there is an opportunity to it - without, however, taking into consideration the basic human rights and freedoms of the Palestinian Arab inhabitants regarding this land - still prevails.
This is revealed by the following facts:
a. On 14 May 1948 - the day that Israel declared itself a state - it legally owned approximately 1,734,000 dunams land, that is 6,59% of the total area of the land of mandatory Palestine.[257]
In the course of the war in 1948 - following the establishment of the state of Israel - and in early 1949, the Israeli army conquested parts of Palestine which - according to the Partition Plan - were never allotted to the Jewish state.
In 1949 after the signing of Armistice Agreements[258] between Israel and the neighboring countries, the state of Israel was established on 72 % of the whole formerly British Mandatory Palestine, and included parts of Palestine which were previously inhabited by a majority of native Palestinian Arabs which was expelled or took flight and was never allowed to return.
Within these borders of Israel according to the 1949 Armistice Agreements there only remained 158.000 (!) native Palestinian Arabs.
b. In the course of the war in June 1967, Israel enlarged its territory again and occupied the Sinai Peninsula, the Gaza Strip, the Golan Heights and the West Bank of the Jordan River, including East Jerusalem.
In these territories, during the last 33 years of occupation, the Israeli government has expropriated hundreds of thousands of dunams of land from Palestinian Arabs on which a large number of civilian settlements were built.[259]
Additionally a huge number of Jewish immigrants were brought and settled in these Occupied Territories.[260]
At the same time the Palestinian Arab inhabitants of their land were - and still are expelled or dispossessed - especially in East Jerusalem[261] - by conditions which no longer make it possible for many of them to stay "lawfully" and in dignity on their lands and places of birth.[262]
The goal of this settlement policy was - and still is - to create political facts on the ground and to change the demographic realities of the regions.
The various Israeli governments did - and until today do - all this in patent and systematic violation of the language and the spirit of international human rights and international humanitarian law - especially in contradiction to the Hague Regulations, 1907[263] and the Fourth Geneva Convention, 1949[264] - according to which an occupying power is explicitly prohibited from confiscation of private land[265] unless for military use,[266] from creating permanent changes not intended for the benefit of the local population,[267] and from transferring population from its territory into the territory it occupies.[268]
But violated by this settlement policy is not only international law but also international agreements to which Israel is party.
As I will demonstrate in more detail in Chapter E and Chapter G of this work, the said settlement policy (i.e. the establishment of permanent settlements and the change of the demographic composition of the Occupied Territories) was approved by the Israeli Supreme Court, who in most of the cases refused to view these violations for what they are, and order their cessation.
Instead of, the Supreme Court preferred to grant a pretext of "legitimacy" to:
- Civilian settlements under the guise of "military-security action".
- Requisitions of land under the guise of "safeguarding the safety of public property".
- Transfers of requisitioned land to the permanent possession of settlers under the guise of "administration of government property" or temporary "enjoyment of the fruits".[269]
c. Another recent example that points to the above mentioned basic aim and unchanging approach of the Zionist movement to occupy as much land as possible without, however, taking into consideration the basic human rights and freedoms of the Palestinian Arab inhabitants regarding this land, is given in the recent Combined Initial and Second Report Concerning the Implementation of the International Covenant on Economic, Social and Cultural Rights, submitted on 28 November 1997 to the United Nations.[270]
This 1997 Combined Initial and Second Report by Israel to the United Nations defines on the one hand the area of the state of Israel as comprising 10,840 square miles - a calculation which includes all the Occupied Territories.[271]
But on the other hand the 1997 Combined Initial and Second Report by Israel to the United Nations totally excludes about 2,5 millions Palestinian Arabs living on these Occupied Territories from the population statistics that were provided in the same report.[272]
After the discussion in Chapter A - which intended to provide some bagckground information regarding the history, the philosophy and the ideological concept of political Zionism - I will now go over to Chapter B, where I shall deal with the issue of Israel's obligations to enact a constitution including a bill of human rights.
B. ISRAEL'S INITIAL OBLIGATIONS TO ENACT A CONSTITUTION INCLUDING A BILL OF HUMAN RIGHTS AND THE ISSUE OF JUDICIAL REVIEW
1. Introduction
Israel's legal system - like that of Great Britain - does not have one single written instrument that can be considered as a formal "constitution" or as the "higher law of Israel" with normative supremacy in relation to ordinary legislation.
Until the enactment of two - partly entrenched - basic laws in 1992[273] dealing the first time with certain fundamental rights and civil liberties there existed also no formal "bill of rights".
However, the obligation to enact a democratic constitution, guaranteeing to all persons equal and non-discriminatory rights in civil, political, economic and religious matters, was the first time already expressed in the United Nations General Assembly Resolution 181 (II) of 29 November 1947[274] which states as follows:
1. No later than two months after the end of the Mandate, each state should elect its own Constituent Assembly, which by itself should enact a democratic constitution, guaranteeing to all persons equal and non-discriminatory rights in civil, political, economic and religious matters, the enforcement of human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly and association.[275]
2. Each state should be established on the conceptual basis of a bi-national state, where Palestinian citizens as well as Arabs and Jews who are not Palestinian citizens, but residing in Palestine outside the city of Jerusalem, shall become citizens of the state in which they are resident and enjoy full civil and political rights.[276]
3. A declaration - the text of which was set forth in Resolution 181 (II) in Part I Section C - shall be made to the United Nations by the provisional government of each proposed state before independence. This declaration shall contain clauses regarding the protection of Holy Places, the protection of religious and minority rights and for the "equal protection of the laws" of all persons.[277]
4. The constitutions of the states shall embody chapters 1 and 2 of the above mentioned declaration.
5. The admission of each state to membership in the United Nations is conditional upon the signment of the declaration and its undertaking, as envisaged in this plan.[278]
The Declaration of the Establishment of the State of Israel of 14 May 1948[279] [hereinafter also: The Declaration] is the second important document which not only clearly mentions fundamental rights and freedoms to be observed by the state of Israel but which also declared that a Constitution shall be adopted by an elected Constituent Assembly not later than 1 October 1948.
The Declaration states in its second part[280] (ending with the words "...the Jewish state to be called Israel"[281]) that
"...elected, regular authorities of the state [shall be established] in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948[282]..."
The third part of the Declaration (ending with the words "...it [the state of Israel] will be faithful to the principles of the Charter of the United Nations"[283]) describes all those fundamental values and principles which should guide the state and upon which the constitutional regime of the state of Israel - especially in regard to fundamental rights and freedoms - should be built.
These fundamental values and principles establish Israel as "Jewish state" and at the same time on the basis of a "democratic state"[284] that will act in accordance with the principles of the Charter of the United Nations.
With regard to these fundamental values and principles the Declaration provides in its third part that the state of Israel
"...will be open for Jewish immigration and the Ingathering of the Exiles";
"...will foster the development of the country for the benefit of all its inhabitants";
"...will be based on freedom, justice and peace as envisaged by the prophets of Israel";
"...will ensure complete equality of social and political rights to all its inhabitants, irrespective of religion, race or sex and will guarantee freedom of religion, conscience, language, education and culture";
"...will be faithful to the principles of the Charter of the United Nations."[285]
This third part of the Declaration is - as far as it concerns the question of the foundations of civil and political rights in Israel and the Occupied Territories - undoubtful the most important one and therefore I will refer to it many times.
As I will demonstrate in more detail in the course of this work, the above mentioned fundamental values and principles have been laid down in explicit statutory expressions and have been developed over decades by the jurisprudence of the Supreme Court.
In 1992, two basic laws on human rights - namely the Basic Law: Human Dignity and Freedom[286] and the Basic Law: Freedom of Occupation[287] - were enacted, which explicitly state that their purpose is "to protect human dignity and freedom in order to entrench the values of the state of Israel as a Jewish and democratic state."
However, despite the fact that the above mentioned two fundamental documents - i.e. the United Nations General Assembly Resolution 181 (II) and the Declaration of the Establishment of the State of Israel, 1948 - entail clear obligations to enact an entrenched constitution including a bill of rights, this duty - to produce such a written formal instrument with superior status - has not been fulfilled since the day of the establishment of the state of Israel in Palestine in 1948 up until today.
As a certain compromise solution Israel has chosen to go the way of a "chapter by chapter" - process. The First Knesset adopted in June 1950 the so called "Harari Resolution"[288] proposing that the written constitutional norms should be formulated in a series of "Basic Laws" which shall be assembled at the end of the process and become the future constitution.
But, in spite of their designation as "Basic Laws", these laws are adopted by the Knesset in the same manner as other legislation, and their constitutional meaning is only derived from their nature, and - in some cases - from the inclusion of "entrenched clauses" whereby a special majority is required to amend them.[289]
Most of the provisions of these basic laws are - despite their intended prime significance - not entrenched and may be amended by a regular majority vote of 61 members of the Knesset.[290]
Until today - in accordance with the above mentioned Harari Resolution - eleven basic laws have been enacted:
Nine of these basic laws were enacted in the period of 1957 to 1992 and they solely deal with the institutional and territorial aspects of the state of Israel, namely the Knesset (i.e. the Israeli parliament),[291] the Government,[292] the President,[293] the Army,[294] Judicature,[295] the State Comptroller,[296] the State Economy,[297] Jerusalem as Capital of Israel[298] and Israel’s Land.[299]
Two further basic laws were - as already mentioned above - enacted in 1992 and deal the first time expressly with certain fundamental rights and freedoms.[300]
It should be mentioned at this point that the question of whether Israel should have an entrenched constitution including a bill of rights has been discussed within the Israeli society as well as in the Knesset since the establishment of the state of Israel in Palestine in 1948 up until today.
However, due to the fact that the Israeli society is strongly divided in its mentality and priorities it was never possible to overcome the gaps between the various parties in the Knesset in order to enact a fully entrenched constitution which comprehends all fundamental rights and freedoms protected in international documents and other modern constitutions and which would constitute the source of "higher law" in Israel.
One main concern in regard to such a document was expressed by the religious parties, which feared that religious norms would not meet the standards of a modern bill of rights.
But strong opposition to such a legislation also came from an other powerful circle within the government, namely the defence (military) establishment, which realized that much of the Israeli and British mandatory emergency legislation would never stand the test of judicial review. In order to prevent the enactment of a constitution and bill of rights this group therefore employed the argument of security reasons.[301]
Nevertheless there have been several major debates in the Knesset[302] upon this issue as well as several attempts in the Knesset to enact to enact a constitution or at least a bill of rights.
In 1973[303] and 1983[304] an introduced draft bill even passed the first reading in the Knesset.
Another attempt to enact a comprehensive constitution was made in 1987, when a group of Tel Aviv University law professors drafted a proposal for a constitution.[305]
However, none of these proposed bills and constitutions has ever been introduced into legislation.
Between the years 1989 and 1990 the Ministry of Justice prepared a comprehensive basic law on human rights,[306] which - although having passed the first reading in the Knesset - became stuck again in 1990.[307]
In 1991, in the outgoing 12th Knesset, however, the civil rights lobby in the Knesset realized that it was impossible for political reasons to legislate this general constitutional bill of rights,[308] and therefore reached the conclusion that it might be better to enact a bill of rights that deals at least with those rights which were considered to be less controversial from a political point of view, than not to have any bill of rights at all. Hence, the above mentioned comprehensive basic law on human rights was divided into four legislative pieces.[309]
Since then only two of these laws have been enacted in the form of basic laws dealing the first time expressly with certain assumed less politically controversial fundamental rights and freedoms. These basic laws came into being in March 1992[310] and were both fundamentally amended in 1994.
One of them is the Basic Law: Human Dignity and Freedom[311] and explicitly protects a person's life, body and dignity. The other is the Basic Law: Freedom of Occupation[312] and explicitly protects the right of every citizen and resident in Israel to hold any occupation or profession.
At the time of writing this work there exist three additional draft basic laws dealing with human rights and freedoms which wait for a passage through the Knesset.40A
These three basic laws are as follows:
The Draft Basic Law: Due Process Rights[313]
The Draft Basic Law: Social Rights[314]
The Draft Basic Law: Freedom of Expression and Association[315]
The ultra-orthodox parties, particularly Shas and United Torah Judaism, are principally opposed to the mentioned draft basic laws since these parties fear that the Supreme Court will interpret them in a way unacceptable from the point of view of orthodox Jewish religion.[316]
The arguments and reasons for the objection of a constitution including a bill of rights will be discussed in more detail in sub-chapter 4.3. of this work.
But despite the fact that until 1992 there was no bill of rights or any unitary piece of legislation of preferential status, setting the constitutional legal principles and defining the basic rights of man and citizen, the Israeli legal system tried to secure certain basic rights and freedoms for at least a certain segment of the whole population (i.e. the Jewish population).
The task of protecting fundamental rights has been entrusted - like in England - to the Supreme Court of Israel, who - sitting as a High Court of Justice - developed in a large number of decisions a jurisprudence on certain basic civil and political rights, such as freedom of speech, freedom of association, freedom of demonstration, freedom of movement and freedom of religious worship.
Nevertheless, I have to stress at this point that - up until today - most of these civil and political rights have only been applied on specific segments of the population, namely the Jewish population.
These civil and political rights were never equally applied in regard to the Palestinian Arab citizens of Israel and certainly not towards the Palestinian Arab people living in the Occupied Territories.
As I will show in the course of this work, the Palestinian Arab citizens of Israel - compared with the Jewish population - experience to this day many restrictions, discriminations and violations of their basic rights and freedoms in various fields.
Even worse, however, was - and still is - the situation for the Palestinian Arab people living in the Occupied Territories, since it suffers from severe violations of fundamental rights and freedoms, caused by the application of an own created legal, judicial and administrative system. The status and legal order of the Occupied Territories will be discussed in Chapter E of this work.
Turning now back to the two, above mentioned, new basic laws on human rights passed by the Knesset in March 1992 one may say that - at least theoretically, i.e. from a constitutional and conceptional point of view - they brought certain changes into Israel's legal system regarding the status of human rights and freedoms.
The said basic laws on human rights are partly entrenched, enjoy the status of constitutional laws, and require special majorities in order to change them.
Until the enactment of those new basic laws on human rights in 1992, fundamental human rights did not enjoy any normative superiority over other Knesset-enacted legislation and, as a consequence of that situation, the Knesset could restrict the fundamental freedoms without being bound to any superior law.
Moreover, since in the past there was no law which regulated the normative relationship between normal laws and the status of human rights, the different courts as well as all other authorities had to enforce any law (after it has been enacted by the Knesset and published in the Official Gazette) and judicial review only existed in rare cases and out of formal reasons.[317]
However, as already mentioned above, with the enactment of the above mentioned basic laws on human rights certain structural changes within the Israeli legal system occurred, which - at least at first sight - give or better gave some hope for fundamental changes.
Based upon the new Basic Law: Human Dignity and Freedom an appeal was made to the Supreme Court in the matter United Mizrahi Bank v. Migdal Cooperative Village.[318] In this case the Supreme Court confronted itself with the direct question whether an Israeli Court is competent to annul a regular Law on grounds of violating a substantive provision of a Basic Law on Human Rights, namely the Basic Law: Human Dignity and Freedom.
The Supreme Court also considered the normative relationship between basic laws and regular laws.[319]
The majority of the Supreme Court judges in the Mizrahi Bank case held that:
1. Both new basic laws - i.e. the Basic Law: Human Dignity and Freedom as well as the Basic Law: Freedom of Occupation - are superior to that of ordinary legislation and have formal constitutional status.
2. The courts have the power to review legislation and to invalidate legislation that does not meet the demands of these Basic Laws.[320]
3. In this specific case the normal law in principle violates one of the protected right, namely the right to property entailed in the Basic Law: Human Dignity and Freedom.
Despite these seemingly positive results, the decision in the Mizrahi Bank case is nevertheless - as I see it - disappointing due to the fact that the Supreme Court finally came to the conclusion that the said normal law, i.e. the "Gal Law" meets the requirements of Section 8[321] of the Basic Law: Human Dignity and Freedom, with the consequence that the said normal law was in fact not invalidated.
As I will demonstrate in the course of this work, the decision in the Mizrahi Bank case is only one of a big series of judgments wherein the Supreme Court pronounces the existence of rights and also admits the violation of rights, but finally came to the conclusion that - in light of other more important interests - the violation of the said right is justified.[322]
However, before treating in more detail the Mizrahi Bank case and other important and relevant decisions, it seems necessary to me to provide some background information regarding the following issues:
The role of the Israeli Supreme Court in the sphere of civil and political rights (sub-chapter 2).
The nature and legal status of the Declaration of the Establishment of the State of Israel, 1948 (sub-chapter 3).
Israel's obligation to enact a constitution and a bill of rights as requested by the Declaration of the Establishment of the State of Israel, 1948 (sub-chapter 4).
The attitude of the Israeli Supreme Court towards judicial review of primary legislation of the Knesset in human rights cases (sub-chapter 5).
The normative relationship between basic and ordinary laws (sub-chapter 6).
2. The Role of the Israeli Supreme Court in the Sphere of Civil and Political Rights
2.1. General Remarks
As already mentioned in the introduction to this Chapter B, Israel's legal system does not have one single written instrument that can be considered as a formal "constitution" or as the "higher law of Israel" with normative supremacy in relation to ordinary legislation.
Until the enactment of the two partly entrenched basic laws on human rights[323] in 1992 there was also no bill of rights and the Supreme Court of Israel did not have the power to review the constitutionality of primary Knesset legislation.
Nevertheless, the Israeli legal system tried to secure certain basic rights and freedoms for at least a certain group - i.e. the Jewish population group - within the whole population.
In a large number of decisions, starting with the often cited decision in the matter of Kol Ha’am v. Minister of Interior[324] the Supreme Court of Israel produced what is commonly also termed as a "judicial bill of rights".[325]
This chapter intends to discuss in short and general way the role and the main judicial stances of the Israeli Supreme Court in the field of human rights.
Before stepping, however, into the said issues I will first of all provide a short overview about the institutional organization of Israel's judicial system operating within the Green Line.
2.2. The Institutional Organization of Israel's Judicial System
The judicial system that is operating in Israel within the Green Line consists of several court systems which for the most part have independent areas of original jurisdiction.[326] However, according to the scope of their particular jurisdiction, the Israeli judicial system has been divided into two main categories.[327]
The first main category within the Israeli judicial system consists of general courts of law, which are also known as civil or regular courts.
The second main category within the Israeli judicial system consists of tribunals and other authorities that are vested with judicial powers.
2.2.1. General/Civil/Regular Courts of Law
The general courts of law enjoy general jurisdiction,[328] and there exist three instances, namely Magistrates Courts, District Courts and the Supreme Court.[329]
The Magistrates[330] and the District[331] Courts have original jurisdiction over civil matters and criminal offenses.[332]
The Supreme Court is the highest court of appeal on rulings of lower tribunals, and has original jurisdiction also over other matters. Due to its constitutional and political importance in the area of human rights and freedoms the Supreme Court will be discussed in more detail below in sub-chapter 2.3.
2.2.2. Tribunals and Authorities Vested with Judicial Powers
This category enjoys limited jurisdiction with respect to the subject-matter and the people who are subordinate to their authority. To this second category of tribunals and courts belong: Military Courts/Tribunals, Religious Courts and Labour Courts.
The Military Courts/Tribunals were established according to two main legal sources,[333] namely the Military Justice Law, 1955[334] and the Defence (Emergency) Regulations, 1945.[335]
The Military Justice Law, 1955[336] empowers Courts Martial to try soldiers for military offenses. According to this law six Courts Martial of first instance[337] were created, namely the District Courts Martial,[338] the Naval Court Martial,[339] the Field Court Martial,[340] the Special Court Martial[341] and the Traffic Court Martial.[342]
The District Courts Martial, the Special Court Martial and the Traffic Court Martial are permanently established. The Naval Court Martial and the Field Court Martial are established ad hoc for each case.
The decisions of all of the above mentioned Courts Martial are appealable to the Appeals Court Martial.[343] Until 1986, judgments of the Appeals Court Martial were appealable on restricted procedural and administrative grounds to the Supreme Court sitting as a High Court of Justice. However, since the 1986 amendment of the Military Justice Law, judgments of the Appeals Court Martial may be appealed to the Supreme Court only when "the case raises legal questions of significant novelty or complexity."[344]
The Defence (Emergency) Regulations, 1945[345] is the other main source according to which Military Courts are established. The Military Courts established under the Defence (Emergency) Regulations, 1945 are competent solely for the trial of offenses mentioned in these regulations. Decisions of the Military Courts established under the Defence (Emergency) Regulations, 1945 may be appealed to the Appeals Court Martial.[346]
Another category of courts that enjoys only limited jurisdiction with respect to the subject-matter and the people who are subordinated to their authority are the Religious Courts of the various religious communities. The Religious Courts have jurisdiction in matters of personal status, such as marriage, divorce, and to a certain extent in matters of maintenance, guardianship and the adoption of minors.
The following Religious Courts have been established for the various religious communities: The Rabbinical Courts,[347] the Moslem Religious Courts (Sharia Courts),[348] the Druze Religious Courts,[349] the juridical institutions of the ten officially recognized Christian communities[350] and the juridical institutions of the Baha'i community living in Israel.
2.3. The Supreme Court of Israel
2.3.1. The Jurisdiction of the Supreme Court
The Israeli Supreme Court is seated in Jerusalem,[351] and its jurisdiction derives from Section 15 of the Basic Law: Judicature of 1984.[352]
The Supreme Court of Israel has a dual function:
According to Section 15(b) of the Basic Law: Judicature of 1984 the Supreme Court is primarily an appellate court, considering appeals of trial court judgments and appellate decisions of the District Courts.[353]
According to Section 15(c) of the Basic Law: Judicature of 1984 the Supreme Court also sits as a High Court of Justice hearing disputes between the individual and the state.
Section 15(c) of the Basic Law: Judicature of 1984 states as follows:
"The Supreme Court shall sit also as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court (beit mishpat or beit din)."[354]
Anyone - i.e. a citizen of Israel as well as any person under Israel’s jurisdiction - who believes to be infringed in his human rights or freedoms has the possibility to launch a direct petition to the Supreme Court.
In its capacity as High Court of Justice, the Supreme Court has original jurisdiction over virtually all branches of the government, and sits as a trial court from which there is no appeal. In this case the jurisdiction of the High Court of Justice is parallel to that of the English High Court of Justice.
In contrast to the continental law countries, Israel's legal system has neither a separate branch of administrative law nor a separate system of administrative courts.
State authorities are subject to general rules of law, and litigation involving such authorities is conducted in the regular courts of law.[355]
According to Section 15(d)(2) of the Basic Law: Judicature of 1984, the Supreme Court, sitting as a High Court of Justice is also competent to issue orders in the nature of the British prerogative writs (habeas corpus, mandamus, prohibition, certiorari and quo warranto) and injunctions against all public authorities (state or municipal), their officials and other bodies or persons which fulfill public functions by virtue of law.
Section 15(d)(2) of the Basic Law: Judicature of 1984 states as follows:
"Without prejudice to the generality of the provisions of subsection (c), the Supreme Court sitting as a High Court of Justice shall be competent...
(2) to order State or local authorities and the officials and bodies thereof, and other persons carrying out public functions under law, to do or refrain from doing any act in the lawful exercise of their functions or, if they were improperly elected or appointed, to refrain from acting."[356]
In that capacity the Supreme Court serves in principle as administrative court.[357]
Important to mention is at this point is the fact that the access to the Supreme Court - sitting as a High Court of Justice - is quick, the filing fees are low-priced, and standing (locus standi) is liberally decided.[358]
2.3.2. Judicial Activism and Judicial Restraint
The absence of a formal and entrenched constitution and the permanent potentiality of the Knesset to override any decision of the Supreme Court, contributed to the development of judicial activism of the Supreme Court in certain fields, such as freedom of speech, freedom of association, freedom of demonstration, freedom of movement and freedom of religious worship.
Until the enactment of the two basic laws on human rights in 1992, the Supreme Court of Israel has been the most decisive instrument[359] in creating and implementing certain civil and political rights at least with regard to a specific group of population of Israel - i.e. the Jewish population.
In a large number of judgments - starting in 1953 with Justice Agranat’s decision in the Kol Ha'am case[360] - the Supreme Court developed fundamental principles and standards, which in other countries are protected by written constitutions or bill of rights.
This was done by using the judicial instruments of interpretation of the Declaration of the Establishment of the State of Israel of 1948, of legislative enactments and other general principles underlying democratic systems of government.
Already in the first years of Israel's existence the Supreme Court has developed the presumption that civil rights may not be limited or infringed, except by an unequivocal expression of a contrary intention of the legislature, i.e. an explicit provision in a particular law.[361]
In some decisions the Supreme Court established the principle that - in the absence of such an unequivocal statutory authorization directing or permitting an administrative body to act in an other manner - the said authority must be guided by the philosophy of respecting the personal freedom and may not deprive the individual's basic human rights.[362]
The Supreme Court also held that if it comes to the situation that the interpretation of the law leads to two different results, the Court shall prefer the construction that upholds the basic rights.[363]
It should be mentioned at this point that - despite the enactment of the above mentioned two basic laws on human rights in 1992 - the jurisprudence that was developed by the Israeli Supreme Court over the decades and that has not been overruled or declared as illegal or invalid, forms still the main source and legal environment for human rights and freedoms.
The Supreme Court was extremely influential in the creation of non-written legal norms and standards - i.e. norms and standards not expressly provided by legislation - in the area of freedom of speech. Several judgments of the Supreme Court established the principle that "Israel as a democracy is committed to the principle of freedom of speech."[364]
As I will show in detail in the context of two important and representative civil and political rights - namely the right to freedom of expression and the right to property - the Supreme Court has exercised judicial activism as well as judicial restraint with regard to different legal sources applied on two different groups of population - i.e. the Jewish and the Palestinian Arab people living in Israel and the Occupied Territories.
Regarding the right to freedom of speech - which will be discussed in Chapter F of this work - the Supreme Court has shown strong judicial activism, when it came to the application and interpretation of Section 19 of the Press Ordinance, 1933[365] - a legislative source which was used mainly with regard to the Hebrew press and the Jewish population.[366]
At the same time, the Israeli Supreme Court has shown strong judicial restraint, rigid formalism and mechanical jurisprudence with regard to the application and interpretation of Regulation 94(2) of the Defence (Emergency) Regulations, 1945[367] - a legislative source which was and is mainly used against the Palestinian Arabic press and speakers.[368]
Regarding the right to property - which will be discussed in Chapter G of this work - the Supreme Court has almost always shown judicial restraint in cases relating to violations of the right to property by the Israeli government towards the Palestinian Arab people remaining or trying to return to Palestine after the establishment of the state of Israel in May 1948.[369]
The same judicial restraint was exercised by the Supreme Court in cases involving the right to property of the Palestinian Arab people living in the Occupied Territories.[370]
In the context of this work I will also show that the Supreme Court has nearly always refused to interfere in so called "security matters" and/or generally in cases dealing with the violation of the fundamental rights of the Palestinian Arab people living in Israel and the Occupied Territories.[371]
2.3.3. The Normative Status of Human Rights Case Law
As already elaborated in the previous sub-chapter 2.3.2., until the enactment of the two basic laws on human rights in 1992, in a large number of judgments the Supreme Court developed fundamental principles and standards, which in other countries are protected by written constitutions or bill of rights.
While studying the cases and decisions of the Israeli Supreme Court one may observe, that the formulations of these "non-written" - i.e. not expressly provided by legislation - fundamental principles and standards relating to human rights and freedoms and the rule of law vary in their style, that they are sometimes vague and have no definite jurisprudential conception.
Just to mention a few, one may find for example phrases such as:
"...the vision of the people...(and) its faith..."[372]
"...the mirror of our national life..."[373]
"...fundamental principles upon which our State is founded..."[374]
"...unwritten rights which derive directly from the democratic freedom-loving character of our State"[375]
"...constitutional factors..." and "...extra-statutory legal norms, standing not only above an ordinary law but also above the constitution...basic, supra-statutory norms..."[376]
"...this unwritten principle is the soul of our entire constitutional regime..."[377]
As for the question of the normative nature of these "unwritten" extra-statutory principles for a long period the judges in Israel regarded them as "extra-legal principles" transcendending the limits of positive law.[378]
This approach is rooted in the positivistic conception that only rules, which are already formulated and declared by legal institutions really constitute "law." This conception equates "law" with hard and fast rules framed in legislative enactments or judicial decisions.
Professor Ronald Dworkin explains this understanding with the tendency of lawyers to associate laws and rules and to think of "the law" as a collection of system of rules. He bases this assumption on Roscoe Pounds diagnosis, that English speaking lawyers were tricked into it by the fact that the English language uses the same word, changing only the article, for "a law" and "the law", while other languages use the word "loi" and "droit", and "Gesetz" and "Recht". He furthermore argues that the principal reason to associate laws with rules lies in the conventional legal education, which idolizes the reciting of specific rules.[379]
Professor Lon Fuller on the other hand says that those rules of morality are far from being "extra legal" but are rather organically connected with the functioning of the legal order.[380]
Later on with the decision of Ha'aretz v. Israel Electric Corporation[381] handed down in 1974, the Supreme Court adopted a positivistic conception concerning the normative quality of these "non-written standards and principles" of human rights and ruled that "they form an integral part of the law prevailing in Israel."
The then Chief Justice Meir Shamgar stated in this context as follows:
"[T]he law in Israel embraces, according to our understanding and concepts, basic rules concerning the existence and protection of freedoms of the individual... [B]asic laws are protected and first and foremost among these, is the freedom of expression, and they form a substantive part of the law of Israel. The integration of these rights into our laws, as is well known, the consequence of the system of government which we so coveted, but the obligation to honor them is not merely a political or social-moral one; it also has legal status."[382]
David Kretzmer, Professor for Constitutional Law at the Hebrew University characterized the normative status of fundamental rights in Israel - prior to the enactment of the new basic laws relating to human rights - as that of soft legal principles.[383] According to his interpretation, they were legal principles because of their definite role in the decision-making process of the courts and other law-applying organs, since 1. government authorities may not restrict them without express statutes; 2. all authorities must be guided by them in interpretation of statutes; and 3. government authorities have to give them appropriate weight when exercising administrative discretion.
On the other hand Professor Kretzmer called the legal status of these principles "soft" because they do not bind the legislative power of the Knesset. This is revealed by various decisions of the Supreme Court where this court refused to annul primary legislation of the Knesset that curtails those basic rights which are recognized as legal principles.[384]
Even if the new basic laws on human rights are a sign of progress in the human rights field in Israel, there is - as I will show in detail in the further chapters - nevertheless still very much to do in order to really bring a democratization of Israel's legal order as a whole.
2.3.4. Summary and Conclusions
1. According to the above mentioned rules established by the Supreme Court in the decisions[385] - at least in theory - the Supreme Court has always to act on the presumption that the legislature was aware of the basic rights of the individual and is intended to value them. The judicial instrument to implement this policy is the process of interpretation of existing enactments by the Supreme Court.
According to the above mentioned presumption, the starting point for every statutory interpretation is that the legislature's intention was cognizant of fundamental individual rights when it created the statute.
This presumption favoring fundamental rights and liberties has been described as the strongest presumption of Israel's constitutional system, that empowers the Supreme Court to develop procedural and substantive rules respecting the rights of the individual.[386]
2. However, despite the above mentioned self-perceived role of the Supreme Court "to be a defender of human rights and freedoms", the Court has in reality played a role, which - due to the following facts - deserves sharp criticism.
a. In most of the cases relating to the Palestinian Arab minority living in Israel within the Green Line, the Supreme Court has translated the discriminatory approach of the governmental policy into judgments.
b. In cases relating to the Palestinian Arab people living in the Occupied Territories the Court has played the role of an "agent" of the military government, defending harsh restrictions and serious violations of fundamental rights and freedoms. The majority of the hundreds of cases related to the Occupied Territories were decided by the Supreme Court in favor of the considerations of the military government.
3. The Supreme Court of Israel - sitting in its capacity as a High Court of Justice - has become an important and powerful policymaker in Israel's society.
3. The Nature and Legal Status of the Declaration of the Establishment of the State of Israel, 1948
3.1. General Remarks
As far as the legal status and the enforceability of the Declaration of the Establishment of the State of Israel, 1948 is concerned, the following situation exists:
Until the enactment of the above mentioned two basic laws on human rights[387] in 1992, the Declaration of the Establishment of the State of Israel was neither considered as part of the constitutional system nor as having the force of a law. In other words, it did not confer any individual rights to the citizen of the state of Israel nor did it impose any legal duty on to the Israeli government.
Nevertheless, the Declaration of the Establishment of the State of Israel was - since the Supreme Court decision handed down in 1953 in the matter Kol Ha’am v. Minister of Interior[388] - considered as an instrument of legal interpretation.
In 1992 however, with the enactment of the said basic laws on human rights, the situation changed insofar as the two mentioned basic laws on human rights explicitly refer to the Declaration of the Establishment of the State of Israel.
Both basic laws on human rights declare:
"The fundamental rights of a person in Israel...shall be honored in the spirit of the principles set out in the Declaration of the Establishment of the State of Israel."[389]
However, it is not yet clear, to what extent the Declaration of the Establishment really has become an integral part of the said basic laws on human rights or not.
Before discussing this issue in more detail in sub-chapter 8 of this work, it is, however, very important to take a glance at the very early Supreme Court jurisprudence regarding the nature and status of the Declaration of the Establishment of the State of Israel.
This jurisprudence ranges from considerations regarding the status of the Declaration as a political instrument - as it happened for example with the decision in the matter Zeev v. Gubernik[390] - to the determination of the Declaration as an interpretative instrument - as it happened with the often cited decision in the matter Kol Ha’am v. Minister of Interior[391]
3.2. Supreme Court Jurisprudence
3.2.1. The Declaration of the Establishment of the State of Israel - Considered as "Political Instrument"
3.2.1.1. Zvi Zeev v. Gubernik (1948)
The Facts of the Case
In this case an order of requisition of an apartment for the use of the second respondent - a governmental official (i.e. the Director of the Financial and Control Section of the Ministry of the Interior) - was issued by the Acting District Commissioner of Tel Aviv.[392]
Against the said requisition order which was based on Regulation 48(1) of the British mandatory Defence Regulations, 1939[393] the landlord of the apartment brought a petition before the District Court of Tel Aviv.[394]
On a factual basis the petitioner protested against the maladministration and corruption which was involved in the governmental act of the first respondent who issued the requisition order.[395]
Additionally, the petitioner challenged the validity of the Defence Regulations, 1939. Normatively he based the petition with regard to this reason on two grounds, namely first that the said Defence Regulations, 1939 had been impliedly repealed by Section 9(a) and (c) of the Law and Administration Ordinance, 1948[396] and second that they were inconsistent with the Declaration of the Establishment of the State of Israel of 14 May 1948 which declared in its third part, that "...the State of Israel shall be based on freedom, justice and peace as envisaged by the prophets of Israel."[397]
The Decision of the Supreme Court
The then President of the Supreme Court, Justice Moshe Smoira, handing down the judgment for the Court, rejected the petition.
In a formalistic and legalistic style of reasoning - that means without looking at the substantive issues of administrative discretion and the real facts of the case such as the maladministration and corruption involved in the governmental act - he held that the said Defence Regulations, 1939 remained in force since they were not repealed by Section 9(a) and (c) of the Law and Administration Ordinance, 1948.[398]
With regard to the idea that the Declaration of the Establishment of the State of Israel could have any constitutional status and thus serve as a normative basis of fundamental rights or freedoms,[399] the then Justice Moshe Smoira held as follows:
"...the only object of the Declaration of Independence was to affirm the foundations and the establishment of the state for the purpose of its recognition by international law. It [the Declaration] gives expression to the vision of the people and its faith, but it contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal."[400]
The same line of interpretation regarding the legal status and nature of the Declaration of the Establishment of the State of Israel was also adopted in the judgment handed down by the Supreme Court in the case of El-Karbutli v. Minister of Defence.[401]
3.2.1.2. El-Karbutli v. Minister of Defence (1948)
The Facts of the Case
In this case a Palestinian Arab inhabitant of Yaffo was administratively detained for more than a month without knowing the reason for his arrest.
The said detention order was based on Regulation 111 of the Defence (Emergency) Regulations, 1945[402] and issued by the Military Government, which was imposed on most of the Palestinian Arab villages within the Green Line of the state of Israel during the period from 1948 and 1966.[403]
The petitioner raised two arguments for filing the petition against the said detention order.
The first argument was that since Regulation 111 of the Defence (Emergency) Regulations, 1945 is contradictory to the Declaration of the Establishment of the State of Israel of 1948, also the detention order was invalid.[404]
With regard to this argument, Justice Itzhak Olshan, handing down the judgment for the Supreme Court, relied on the Zeev v. Gubernik case and directly applied the therein established rule.
With regard to this argument, he explicitly stated that while the Declaration of the Establishment of the State of Israel, 1948 defines the basic credo of the state, it is not a constitutional law which in practice determines whether ordinances and laws are valid or invalid.[405]
The second argument was that the detainee was deprived of his right to file an appeal to an advisory committee, due to the fact that such a committee was not yet appointed.
It should be said that the non-establishment of such an advisory committee did not have any immediate implication since in any case it was not empowered to act as an appeal court and all it could was to give its recommendations to the Military Government.
The Decision of the Supreme Court
The Supreme Court accepted the second argument of the petitioner and - considering the non-establishment of an advisory committee as technical or formal defect - decided to annul the detention order.
The Supreme Court used a legalistic and formalistic style of reasoning and - insisted that governmental organs comply with the letter of law and with legal rules. As it is typical for this style of reasoning, the Court refused to examine the substantive issues of the governmental action nor to question the validity of the anti-democratic Defence (Emergency) Regulations, 1945.
Summary and Conclusions
The two above discussed Supreme Court cases are characterized by the following jurisprudential conceptions and styles of reasoning:
1. Consideration of the Declaration of the Establishment of the State of Israel, 1948 solely as political instrument to be used in the international sphere to affirm the foundation and the establishment of the State of Israel.[406]
2. Strong legalistic and formalistic style of judicial reasoning.
3. Preference of the principle of separation of powers and the supremacy of the legislature by the Supreme Court, and thus rejection of the petition to uphold the Declaration of the Establishment of the State of Israel, 1948 as a "higher law" that determines the validity of primary legislation, i.e. statutes passed by the Knesset or the British mandatory legislator.
4. Establishment of the clear concept not to undertake judicial review on the validity of primary legislation.
3.2.2. The Declaration of the Establishment of the State of Israel - Considered as "Instrument of Interpretation"
Some years later, however, the Supreme Court reconsidered its attitude towards the status of the Declaration of the Establishment of the State of Israel, 1948.
In 1953, in the often cited decision handed down by the Supreme Court in the matter of Kol Ha’am v. Minister of Interior,[407] the Declaration of the Establishment of the State of Israel, 1948 has been treated as an instrument of interpretation.
The Declaration of the Establishment of the State of Israel, 1948 has important implications on the constitutional framework of the state of Israel, in the sense that it provided a fount of inspiration.
Before stepping, however, into a discussion of the said issue and other relevant problems, I want first of all discuss in more detail the jurisprudential concepts and normative sources upon which the above mentioned Kol Ha'am case rests , since this case is widely considered as a "landmark case" within Israel's jurisprudence regarding civil and political rights and as having set the cornerstone of constitutional law within Israel's legal system.[408]
3.2.2.1. Kol Ha'am Company Limited v. Minister of Interior (1953)
The Facts of the Case
In this case[409] the Supreme Court was called upon to define the relationship between the right to freedom of the press and the power of the competent authority (i.e. the Minister of the Interior) to place a limit on the use of the right to suspend the publication of articles according to Section 19(2) (a) of the British Press Ordinance, 1933.[410]
Section 19(2) (a) of the Press Ordinance, 1933 empowers the competent authority to suspend the publication of articles:
"...if any matter appearing in a newspaper is, in the opinion of the High Commissioner-in Council [i.e. the Minister of Interior], likely to endanger the public peace."
The Minister of Interior exercised his authority and suspended two communist newspapers - i.e. Kol Ha’am and Al-Ittihad - which published articles on the Korean war.
The Decision of the Supreme Court
The Supreme Court upheld the petition and ruled that the orders of suspension had been wrongly issued and should be set aside.[411]
Justice Agranat, who wrote the opinion for the Court in this well known case concerning freedom of speech, adopted the "near certainty" or "probable danger" test as general test for resolving situations of conflict between freedom of expression and public order or security. He outlined judicial guidelines that the decision making administrative authorities were expected to follow in imposing restrictions.
He held, that in order to suspend a newspaper, the Minister of Interior must show that it is probable that as a consequence of the publication a danger to the public peace exists. He clearly established that a bare tendency in that direction will not suffice.[412]
Justice Agranat also held that:
"...the case that reached the court raises some fundamental problems, demanding the reconsideration of ancient and well-worn principles. Freedom of the press, regarded as specific form of freedom of expression, is closely bound up with the democratic process."[413]
In this regard Justice Agranat gave a long and well-founded opinion about the meaning of democracy - being a government by will of the people and by consent - and about the task of the democratic process of investigating the truth and selecting the common aims of the people through the means of negotiation, discussion, open debate and free exchange of ideas.
In support of his conclusions Justice Agranat relied on famous British cases, such as Attorney-General v. De Keyser's Royal Hotel, Limited[414] and on the writings of British philosophers, such as William Blackstone and John Stuart Mill.[415]
Furthermore, Justice Agranat adopted American doctrines and the views of prominent American thinkers, such as Professor Chafee, as well as the American jurisprudence of Abrams v. U.S.,[416] Whitney v. People of the State of California,[417] Dennis v. U.S.[418] and others.[419]
To found his opinion, Justice Agranat also relied on the Declaration of the Establishment of the State of Israel when it came to interpret the laws of the state.
He held as follows:
"The system of laws under which the political institutions in Israel have been established and function are witness to the fact that this is indeed a state founded on democracy. Moreover the matters set forth in the Declaration of Independence, especially as regards the basing of the State "on foundations of freedom" and the securing of freedom of conscience, mean that Israel is a freedom-loving state. It is true that the Declaration "does not consist of any constitutional law laying down in fact any rule regarding the maintaining or repeal of any ordinances or laws" (Zeev v. Gubernik [(1948) 1 P.D. 85] but insofar as it "expresses the vision of the people and its faith" (ibid), we are bound to pay attention to the matters set forth in it when we come to interpret and give meaning of the laws of the state, including the provisions of a law made in the time of the Mandate and adopted by the state after its establishment, through the channel of Section 11 of the Law and Administration Ordinance, 1948; for it is a well-known axiom that the law of a people must be studied in the light of its national way of life."[420]
Summary and Conclusions
1. In the Kol Ha'am case the Supreme Court resorted the first time to the Declaration of the Establishment of the State of Israel, 1948 as an instrument for interpretation in order to incorporate freedom of speech law into Israel's legal order.
2. Regarding the legal nature of the Declaration of the Establishment of the State of Israel, 1948 one can observe that - although in the Kol Ha'am case it was not declared to be a constitutional law - it has been considered not only as a statement of ideology and political belief. Far more the Declaration started - as a result of the decision in the Kol Ha'am case - to serve as an instrument of legal interpretation, especially in the field of civil and political rights of individuals.
3. In contrast to most of the jurisprudence that preceded and followed the Kol Ha'am case , the Supreme Court used in this specific case a liberal/libertarian, legal realist and sociological jurisprudential conception which is characterized by the recognition of the principle of free speech as an important condition for the existence and the proper functioning of a democracy. This approach also recognizes that law reflects historical, political, economical, social and other events, theories and trends.
4. In accordance with the mentioned conception, the Supreme Court interpreted the Press Ordinance, 1933 narrowly, and thus restricted the discretion of the Minister of Interior according to this specific statute.
Other Cases and Final Conclusions
The Supreme Court used the Declaration of the Establishment of the State of Israel as an instrument of interpretation of statutes also in numerous other cases related to civil rights - such as in the decisions of Rufeisen v. Minister of the Interior[421], Israeli Film Studios Ltd. v. Levi Geri and the Film and Theater Censorship Board[422] and Peretz v. Chairman, Council and Inhabitants of Kfar Shmaryahu,[423] Yeredor v. Chairman of Central Elections Committee, [424] Neiman v. Chairman of the Central Elections Committee for the 11th Knesset[425] to mention only a few of them.
Shlomo Guberman argued that in the above mentioned cases the Supreme Court could have come to the same conclusions even without invoking the Declaration of the Establishment of the State of Israel as interpretative instrument, only by relying on general principles of natural justice and equity.[426]
After this discussion of the nature and legal status of the Declaration of the Establishment of the State of Israel, 1948, I shall proceed now with the issue of Israel's unfulfilled obligation to enact a comprehensive, formal and written constitution including a bill of rights as requested in the Declaration of the Establishment of the State of Israel, 1948 and the question of the power of the Knesset to enact a constitution.
I will describe the process of attempts and achievements in forming a constitution and a bill of rights.
This process clearly reflects the big gap and disagreement in the society of Israel concerning the state’s fundamental principles, values and standards that lie behind and beneath the whole system.
However, a brief survey of Israel’s constitutional policy at the beginning of the state helps to clarify the present discussion and the still unresolved problems.
4. Israel's Obligation to Enact a Constitution including a Bill of Rights as Requested by the Declaration of the Establishment of the State of Israel, 1948
4.1. The Elections to the Constituent Assembly and its Transformation into "The First Knesset"
The Declaration of the Establishment of the State of Israel, 1948 clearly specified in its second part
1. that a Constituent Assembly - which shall adopt a Constitution - should be elected no later than 1 October 1948,[427] and
2. that the first election to regular authorities should take place pursuant to this Constitution.[428]
The words of the Declaration of the Establishment of the State of Israel, 1948 clearly prove that the intention of the so called "founding fathers" of the state of Israel was to distinguish between a constitutive and legislative power, and to restrict the powers of the Constituent Assembly to the framing of a constitution including a bill of rights.
However, as already elaborated, the adoption of the United Nations General Assembly Resolution 181 (II) in November 1947 lead to a massive flight and expulsion of hundreds of thousands of local Palestinian Arabs and to the outbreak of a civil and guerrilla warfare between the Arab and the Jewish Zionist community in Palestine.[429] Moreover, the establishment of the state of Israel in May 1948 caused the involvement of the newly created state of Israel in a full-fledged war with all Arab neighbors which had sent troops in order to defend the Palestinian Arab civilian population.[430]
The result of the mentioned situation of war and turmoil in Palestine was that the requested elections to the Constituent Assembly did not take place within the scheduled period of time, but were postponed, and took place only on 25 January 1949.[431]
The Declaration of the Establishment of the State of Israel, 1948 also specified in its second part that - until the establishment of the elected, regular authorities of the state - the People's Council[432] shall act as Provisional Council of State.[433]
On the same day of the declaration of the state of Israel the Provisional Council of State constituted itself as temporary legislative branch of the newly created state of Israel.[434]
The first legislative act of the said Provisional Council of State was the enactment of the Law and Administration Ordinance[435] in May 1948.
Section 7(a) of this Law and Administration Ordinance provides that the Provisional Council of State would itself be the legislative authority, and the laws enacted by the Provisional Council of State shall be called "Ordinances".[436]
Further important legislative enactments of the Provisional Council of State were the Constituent Assembly Elections Ordinance, 1948[437] and the Constituent Assembly (Transition) Ordinance, 1949.[438]
On 25 January 1949, in accordance with the above mentioned two laws, the Constituent Assembly was elected.
As already said above, according to the words of the Declaration of the Establishment of the State of Israel, 1948 the intent was to establish two elected bodies which should have distinguished functions. Thus the original designation of the Constituent Assembly was to draw up a constitution including a bill of rights.
However, on 13 January 1949, twelve days prior to the election of the Constituent Assembly, the Provisional Council of State enacted the above mentioned Constituent Assembly (Transition) Ordinance, 1949.[439]
In contradiction to the Declaration of the Establishment of the State of Israel, 1948 - which explicitly spoke of two distinguished elected authorities - the Constituent Assembly (Transition) Ordinance, 1949 provided that all of legislative powers of the Provisional Council of State (i.e. the non-elected temporary legislative power of Israel) shall be delivered in advance to the Constituent Assembly. The following two sections of the Constituent Assembly (Transition) Ordinance, 1949 established this new order:
Section 1 of the Constituent Assembly (Transition) Ordinance, 1949 explicitly declared that
"The Provisional Council of State shall continue [to be] in office until the convening of the Constituent Assembly of the State of Israel; upon the convening of the Constituent Assembly the Provisional Council of State shall dissolve and shall cease to exist."[440]
Section 3 of the Constituent Assembly (Transition) Ordinance, 1949 established at the same time that
"The Constituent Assembly shall, so long as itself otherwise decide, have all the powers vested by law in the Provisional Council of State."[441]
The Provisional Council of State was in fact replaced by the Constituent Assembly, which became the legislative body of the newly established state of Israel.
Important to mention is that the Constituent Assembly (Transition) Ordinance, 1949 does not mention anything about the Constituent Assembly’s power to formulate a Constitution as it was explicitly required by the Declaration of the Establishment of the State of Israel, 1948.
Conclusions
From Section 1 and Section 3 of the Constituent Assembly (Transition) Ordinance, 1949 the following important conclusions can be drawn:
1. The Constituent Assembly (Transition) Ordinance, 1949 does not mention anything about the Constituent Assembly’s power to formulate such a Constitution - despite the fact that the Declaration of the Establishment of the State of Israel explicitly provided that the Constituent Assembly should frame a Constitution.
2. Looking through the Constituent Assembly (Transition) Ordinance, 1949 one may easily observe that the formulations used in this ordinance are very vague, and, as I see it, this vagueness of the Constituent Assembly (Transition) Ordinance, 1949 could in fact create a confusion with regard to the nature of the body that should be elected.
3. Due to this vagueness, it must be doubted whether the electors in fact realized that in reality they were electing a legislature, and not (only) a constitution making body,[442] despite the fact that according to the Constituent Assembly (Transition) Ordinance, 1949 the electors, i.e. the Israeli citizens, were technically informed to elect a legislator and not (only) a constitution making body.
4.2. The Harari Resolution - Adopted in 1950
The first legislative act of the Constituent Assembly was the enactment of the Transition Law, 1949.[443] In this law it was declared that the legislative body of the state of Israel shall be called "Knesset,"[444] and that the Constituent Assembly shall be called "The First Knesset."[445]
This First Knesset, which was also the Constituent Assembly, referred the considerations of a constitution to the Constitutional Legislative and Judicial Committee,[446] which - after not having reached any final conclusions - reported the matter back to the full chamber of the Knesset.[447]
Important to mention at this point is the fact that the debates in the Constitutional Legislative and Judicial Committee were in fact not so much about the substance of a constitution, but rather about the preliminary question, whether a constitution, in the sense of one unified document, was desirable for Israel at all, or at least, in the immediate future.
Dealing mainly with the latter mentioned question, the First Knesset of Israel finally did not adopt any constitution or bill of rights, but in its place it accepted in 1950 the Harari Resolution, named after its initiator.
The Harari Resolution states as follows:
"The First Knesset charges the Constitutional, Legislative and Judicial Committee to prepare a draft constitution for the state. The constitution shall be composed of individual chapters in such a manner that each in itself constitute a basic law in itself. The chapters shall be brought before the Knesset to the extent which the Committee will terminate its work and all chapters together will form the state constitution."[448]
With the Harari Resolution, the Knesset has decided to take the way of gradual development through the enactment of specific topics in a series of basic laws which at the end of the process shall become a full written constitution.
During the first four decades of Israel's existence, such basic laws have indeed been enacted regarding the institutional aspects of Israel's constitutional system, but these laws - with the exception of a few entrenched provisions - do not have the force of a superior law which was to control ordinary legislation.[449]
However, not until 1992, any basic law was enacted in the field of fundamental human rights and freedoms, and only then two - partly entrenched - basic laws[450] dealing with certain civil rights were enacted.
Until today - i.e. more than 52 years after the establishment of the state of Israel in Palestine - the initial obligations of the Knesset to enact a comprehensive constitution including a bill of rights has still not been successfully fulfilled.
Especially the right to equality and the rights of the Palestinian Arab minority in Israel have never been sufficiently protected until the very day of writing this work.
Commenting on the developments that lead to the adoption of the Harari Resolution Professor Ruth Gavison of the Hebrew University noted that "the decision to transform the Constitution Assembly into the First Knesset - as it happened according to the Transition Law, 1949 - may be seen as the first step away from a constitution and a bill of rights, because it created the temptation to invoke the sovereignty of the Knesset and to decide that a constitution was not needed after all".[451]
Professor Claude Klein of the Hebrew University, on the other hand, called the Harari Resolution as a classical example of parliamentary tactics, in the sense that "those who oppose the act proposed, succeed in having it referred to a committee."[452]
As for the question of the legal status of the Harari Resolution it must be said that it does not have the power of a law but it is rather an internal document.
Important to mention is the fact that the Harari Resolution is vague and left a lot of important issues open, namely:
1. It does not deal with the question of the normative nature of the basic laws that should compose the future constitution of Israel. That means in other words the Harari Resolution did not deal with the question of whether the different basic laws have preferred normative status over other regular legislative acts of the Knesset, or if such a supreme status would be conferred only with the consolidation of the separate chapters into one single document.[453]
2. It does not say anything as to what form these basic laws finally take, and if only general norms and principles regarding the structures and powers of the executive, legislative and judiciary or if also normative, ideological rules including the political and social aims of the state, should be encompassed in the final constitution.
4.3. Arguments Raised Against the Enactment of a Constitution including a Bill of Rights
4.3.1. General Remarks
As already mentioned in the Introduction to this Chapter B, the question of whether Israel should have an entrenched formal constitution including a comprehensive bill of rights has been discussed within the Israeli society as well as in the Knesset since the establishment of the state of Israel in Palestine in 1948 up until today.
The first general Knesset debate concerning the issue of the enactment of a constitution including a bill of rights took place preceding the adoption of the Harari Resolution in 1950.[454]
Other major and interesting Knesset debates regarding this issue took place in 1964, 1973 and 1982.
All mentioned debates over a constitution and/or a bill of rights contain theoretical arguments and reflect the political realities at that specific time.
The main ideological controversies that had divided the population - from the very beginning since the existence Israel - concerned the following three issues:
1. The relationship between state and religion.
2. The economic concept of the state.
3. The legal status of the Palestinian Arab people that had remained in Israel.[455]
However, a detailed discussion of all mentioned debates lays definitely outside the range of the present work.[456]
The purpose of this sub-chapter 4.3. is, far more, directed at a discussion of the arguments and reasons that were raised against a constitution and bill of rights during the first general Knesset debate preceding the adoption of the Harari Resolution in 1950.
In the course of this debate three main and divergent approaches regarding the issue of the enactment of a constitution had become apparent and thus lay behind the adoption of the Harari Resolution in June 1950:[457]
[...]
[1] United Nations General Assembly Resolution 181 (II) on the Future Government of Palestine of 29 November 1947 [Partition Resolution] UN document A/Res/181 (II) (A+B), Part I, Section A, para. 1
[2] Ibid., Part I, Section A, para. 3 and Section B, para. 11 and Section D
[3] Id., Part I, Section B, paras. 9, 10, 10(d) and Section C. The issue of a constitution for each state will be discussed in detail in the following Chapter B. (Israel's Initial Obligation to Enact a Constitution Including a Bill of Rights and the Issue of Judicial Review)
[4] Id., Part I, Section C, para. 1
[5] Id., Part I, Section C, Chapter 2 (Religious and Minority Rights)
[6] Id., Part I, Section F
[7] UN Resolution 181 (II) also confirms the right to self-determination of the Jewish population of Palestine by providing authority for the establishment of "the Jewish State". There has not been an explicit recognition of the "Jewish people" by the United Nations because of its discriminatory features. The authors W.T. Mallison and S.V. Mallison argued as follows: "The Zionist 'Jewish people' concept was developed by the Zionist Organization/Jewish Agency prior to the establishment of the state of Israel. (...) The 'Jewish people' concept within the state of Israel accords its members certain privileges and rights on a discriminatory basis which are denied to other [non-Jewish] Israelis. (...) Because of the discriminatory characteristics of the 'Jewish people' concept it would constitute a violation of articles 55 and 56 of the Charter of the United Nations if the General Assembly recognized it." W.T. Mallison and S.V. Mallison, An International Law Analysis of Major United Nations Resolutions Concerning the Palestine Question, New York, United States [study prepared and published at the request of the Committee on the Exercise of the Inalienable Right of the Palestinian People; UN doc. ST/SG/SER.F/4] 1979, quoted in Lex Takkenberg, The Status of Palestinian Refugees in International Law (Clarendon Press - Oxford, 1998) at 257, note 141
[8] Benny Morris, The Birth of the Palestinian Refugee Problem, 1947-1949 (Cambridge University Press, 1987) at 6
[9] David Kretzmer, The Legal Status of the Arabs in Israel (Boulder Westview Press, 1990) at 2; Musa Buderi, The Victory of Zionism and Its Failure to Solve the Jewish Problem, News from Within, published by the Alternative Information Center vol. XIIII no. 10, Nov. 1998, at 15
[10] Kretzmer, ibid., at 2
[11] The Hebrew term for "People’s Council" is "Mo’etzet Ha’Am". This body has been described in the ISRAEL GOVERNMENT YEARBOOK 5729, at 21 as "representing all existing public bodies, and a faithful expression of national unity in an hour of national crisis." Cited in Melville B. Nimmer, The Uses of Judicial Review in Israel's Quest for a Constitution, 70 Columbia Law Review (1970) 1217, at 1219, NOTE 12
[12] The Hebrew term for "People’s Administration" is "Minhelet Ha’Am"
[13] Ruth Gavison, The Controversy over Israel's Bill of Rights, 15 I.Y.H.R. (1985) 113, at 116
[14] Kretzmer, supra note 9, at 2
[15] At this point it should be mentioned that the Palestinian Arab attitude towards the UN Resolution 181 (II) of 29 November 1947 changed over the years. The Declaration of Independence of the State of Palestine of 15 November 1988 explicitly bases the Palestinian right to an independent state on UN Resolution 181 (II) -- which was previously rejected. See the Palestinian Declaration of Independence, 15 November 1988. Text courtesy of PA Ministry of Information, http://www.palestine-net.com/politics/indep.html
[16] See Chapter G. (The Right to Property)
[17] See Chapter C.4. (The Concept of the State of Israel as a "Jewish State" and its Impact on Legislation and Jurisprudence concerning the Right to Citizenship and Nationality)
[18] See Chapter C.3. (The Concept of the State of Israel as a "Jewish State" and its Impact on Legislation and Jurisprudence concerning the Right to Equality)
[19] See Chapter D. (Israel's Permanent State of Emergency and the Question of its Compatibility with the Concept of a Liberal Democracy based on Human Rights and Freedoms)
[20] Walter Laqueur, A History of Zionism (London: Weidenfeld and Nicholson, 1972) at 590
[21] The idea of political Zionism was - for the first time - established in the Basle Program of 1897. For more details see the following sub-chapter 3.3.1.
[22] Literally the term anti-Semitism means persecution of or discrimination against Jews. The term came into being in the 1870's, and its first use is variously attributed to the German Wilhelm Marr and the Frenchman Ernest Renan. In one aspect the term was from the very beginning a misnomer since, in the jargon of the racial theory of that period, "Semites" were a broad group of non-European ethnic groups including the Arabs, whereas the term anti-Semitism was and is used to mean anti-Jewish racism. See Concise Oxford Dictionary of Politics (Oxford University Press 1996) at 13-14
[23] At the very beginnings of its intentions to establish a Jewish national home, the Zionist movement considered different places in South America and East Africa (Uganda) for the practical implementation. But these suggestions were all dropped in favor of Palestine, which was claimed by the Zionist movement as being "...not only the place with a spiritual bond between God and the Jewish people, but also as an essentially unused, unappreciated territory which was inhabited not by an advanced population but by a backward, dishonest, uneducated and ignorant Arab people."
See the letter of 30 May 1918 from Chaim Weizmann to Lord Balfour, quoted in Edward Said, The Question of Palestine (Vintage Books Edition, 1992. Originally published: New York: Times Books, © 1979) Chapter 1 (The Question of Palestine) at 26-28. See also Laqueur, supra note 20; Zeev Sternhell, The Founding Myths of Israel (Princeton: 1998)
[24] Avraham Granovsky, Land and the Jewish Reconstruction in Palestine ("Palestine and Near East" Publications, Jerusalem, 1930) at 119, 120
[25] Laqueur, supra note 20; E. Said, supra note 23, Chapter 1 (The Question of Palestine) and Chapter 2 (Zionism from the Standpoint of its Victims); Sternhell, supra note 23; Walid Khalidi and Jill Khadduri (editors), Palestine and The Arab-Israeli Conflict (Institute For Palestine Studies, Beirut, 1974) 59-67 (Chapter II. Historical Background- Origins of Zionism) at 27, 59-67
[26] Concise Oxford Dictionary of Politics, supra note 22, at 334-335, 538
[27] The definite objectives and strategies of particular nationalisms vary considerably and may range from the aim of maintenance of cultural identity and language, over the aim of preservation of political autonomy, to the aim of establishment of a political unity and independence, and even the aim of territorial expansion or protection of the interests of extraterritorial nationals.
[28] For details on the different streams of Zionism see Laqueur, supra note 20, Chapter 6 (dealing with left-wing, socialist Zionism), Chapter 7 (dealing with Jabotinsky and revisionism), Chapter 9, at 481-484 (dealing, inter alia, with religious Zionism), Chapter 8 (dealing with basic anti-Zionist positions and critics to Zionism, namely: 1. the liberal-assimilationalist critique; 2. the Jewish religious, ultra-orthodox critique; 3. the critique exercised by the Bundists and the Territorialists; 4. the Marxist critics). For more details in the Jewish religious, ultra-orthodox critique, see Chapter C.2.3. (Historical Background of the "Status Quo" Arrangement) and C.2.4. (The Present Importance of the "Status Quo" Arrangement)
[29] The aim of Ahdut Ha'avoda - which was founded in 1919 - was the conquest of land.
[30] Hapo'el Hatza'ir was purely nationalist and even violently anti-socialist.
[31] For a detailed discussion of the labour movement see Sternhell, supra note 23, at 4-6, 19-22
[32] Ibid., at 5-6
[33] Granovsky, Land and the Jewish Reconstruction in Palestine, supra note 24; A. Granovsky, The Land Issue in Palestine (KEREN KAYEMET LEISRAEL), Jerusalem, 1936
[34] Menachem Ussishkin, quoted in Baruch Kimmerling, Land, Conflict and Nation Building: A Sociological Study of the Territorial Factors in the Jewish-Arab Conflict (Department of Sociology and Social Anthropology, Hebrew University of Jerusalem, 1976) at 59
[35] Granovsky, The Land Issue in Palestine, supra note 33, at 12
[36] Ma'ariv, 10 October 1990 (Hebrew), translated to English and quoted in B'Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, A Policy of Discrimination, Land Expropriation, Planning and Building in East Jerusalem (Jerusalem, January 1997) at 54
[37] To this group belong the "Marxists" and the so called "Bund" - a Jewish Socialist organization established one month after the First Zionist Congress in August 1897. Both groups rejected Zionism, stating that as a clear national programme, it was incompatible with the basic approach of internationalism inherent to Socialism. According to the Bund's - somewhat complicated - concept individual Jews wherever they lived could claim a connection with the national collective and have the right to use their own language and develop their own education and culture. The Bund derived its concept of political-cultural autonomy from the writings of the theorists of Austrian Socialism, such as Karl Renner and Otto Bauer, and rejected both assimilation and Zionism. Laqueur, supra note 20, at 270, 274
[38] Israel's labour movement was in power from 1948 until 1977. The leading party of the labour movement was "Mapai" (the Workers' Party of Eretz Israel) - a fusion of two other parties in 1930 - which was re-formed in 1968, then adopting the name "Mifleget Ha'avoda" (the Labour Party), see Sternhell, supra note 23, at 4, 332
[39] Ibid., at 252
[40] See the forceful analysis about Zionism and its consequences for the native Arab inhabitants, given by Professor Edward Said, a native Palestinian Arab living and teaching today in the United States, in his Book "The Question of Palestine", supra note 23, at 56-114, Chapter 2 (Zionism from the Standpoint of Its Victims)
[41] The Zionist Congress, established by Theodor Herzl, was the highest authority in the Zionist Organization. Subsequently the First Congress (1897) the Congresses were held annually until 1901 and then biannually, except for the period of the war years. Due to the fact that during the periods of the Ottoman regime and the British mandatory power the Zionist Congresses could not be convened in Palestine, the Congress delegates met in various European cities. Chaim Simons, International Proposals to Transfer Arabs from Palestine, 1895-1947. A Historical Survey (Ktav Publishing House, Inc., New Jersey, 1988) at 156
[42] Theodor Herzl, Der Judenstaat, Neudruck der Erstausgabe von 1896. Mit einem Vorwort von Henry M. Broder und einem Essay von Nike Wagner (Ölbaum Verlag, 1986) at 9-10
[43] Basle Program, 31 August 1897, published in The Middle East and North Africa 1980/1981 (28th Edition, Europa Publications Limited 1981) at 62
[44] Ibid.
[45] Sykes-Picot Agreement, April-May 1916, published in The Middle East and North Africa 1980/1981, supra note 43, at 62-63
[46] Chaim Weizman played the most important part in paving the way for the Balfour Declaration and in the subsequent negotiations over the British Mandate in Palestine. For more information about Weizman see Laqueur, supra note 20, at 469
[47] Ibid., at 456
[48] E. Said, supra note 23, Chapter 1 (The Question of Palestine) at 15
[49] Balfour Declaration, 2 November 1917, published in The Middle East and North Africa 1980/1981, supra note 43, at 63
[50] Ibid., at 64
[51] Id.
[52] This argument was raised by E. Said, supra note 23, at 15-16
[53] At the Paris Peace Conference which was opened in January 1919, Sylvain Lévi - a distinguished French Orientalist and non-Zionist Jew - spoke on behalf of the Zionist delegation and argued that though the work of the Zionists was of great significance from the moral point of view, Palestine was a small and poor land with a population of 600.000 Arabs, and the immigrating Jews, having a higher standard of living, would tend to dispossess them. See E. Said, ibid., at 20
[54] Quoted in E. Said, id., at 16-17
[55] Quoted in Sami Hadawi, Palestinian Rights and Losses in 1948, A Comprehensive Study (Saqi Books, 1988) at 21
[56] This issue is also discussed by Walter Laqueur in his book "A History of Zionism", supra note 20, at 453
[57] Ibid., at 235, 347
[58] Proposals to transfer the indigenous Arab people from Palestine were made by numerous individual Zionist Jews:
In May 1911, for example, Dr. Arthur Ruppin, a leading Zionist figure, suggested in a memorandum to the Zionist executive a limited population transfer. But this idea was vetoed because it was bound to increase Arab suspicions about Zionist intentions.
In 1912 and 1914, Leo Motzkin raised the idea of an Arab population transfer.
In 1914, to mention another example, the same idea was suggested by Nahum Sokolow.
Israel Zangwill, an Anglo-Jewish writer, was one of the most consistent advocates for a population transfer. In a series of speeches and articles during and after the First World War he criticised the Zionists for ignoring the fact that Palestine was not empty, and suggested the concept of an "Arab track" to their own Arabian state. See Laqueur, supra note 20, at 231-232. See also Simons, International Proposals to Transfer Arabs from Palestine, 1895-1947. A Historical Survey, supra note 41, Chapter 1 entitled "Proposals By Individual Jews", at 3-85
[59] Quoted in the Reports of the Commission of Inquiry With Correspondence Relating Thereto. October 1921, Cmd. 1540, at 57 [Haycraft Commission Reports, 1921]
[60] Ibid.
[61] Laqueur, supra note 20, at 454-455
[62] Churchill - Memorandum - White Paper, 3 June 1922, Statement of Policy, Cmd. 1700, London, published in The Middle East and North Africa 1980/1981, supra note 43, at 67-68
[63] Ibid., at 67
[64] Id., at 68
[65] Article 22 of the Covenant of the League of Nations, 28 June, 1919, published in The Middle East and North Africa 1980/1981, supra note 43, at 66
[66] The conference was opened on 18 January 1919, see Laqueur, supra note 20, at 451
[67] Mandate for Palestine, 1922, British White Paper, Cmd. 1785, published in The Middle East and North Africa 1980/1981, supra note 43, at 66-67
[68] Ibid., at 66
[69] Id., at 67
[70] Ian Brownlie, Principles of Public International Law, Oxford, Oxford Univ. Press, 1990, at 595, quoted in Takkenberg, supra note 7, at 251
[71] Ibid
[72] Article 1 of the Charter states as the second purpose of the United Nations, after the maintenance of international peace and security, to "develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples..." Article 55 of the Charter used the same formula and deals with economic and social cooperation. The Charter of the United Nations, 1945, published in Basic Documents on Human Rights, 3rd Edition, Edited by Ian Brownlie, Q.C. (Clarendon Press, Oxford, 1992) 3, at 4, 5
[73] UN GA Resolution 1514 (XV), 14 December 1960.
In its first two operative paragraphs the General Assembly declares that:
"1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of World peace and co-operation."
2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."
[74] UN GA Resolution 1803 (XVII), 14 December 1962
[75] UN GA Resolution 2131 (XX), 14 January 1966
[76] Article 1 of the ICCPR and the ICESCR states:
"1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations."
ICCPR and ICESCR, published in Basic Documents on Human Rights, supra note 72, at 125, 115
[77] UN GA Resolution 2625 (XXV), 24 October 1970
This 1970 Declaration was adopted by the General Assembly without vote and gives evidence to the consensus among the member states of the United Nations on the meaning and elaboration of a series of principles of the Charter, including the principle of self-determination. The 1970 Friendly Relations Declaration extensively discusses "The principle of equal rights and self-determination of peoples", and comprehensively details the various aspects of the right to self-determination.
[78] Hadawi, supra note 55, at 21
[79] Laqueur, supra note 20, at 545
[80] Biltmore Programme, 11 May 1942, published in The Middle East and North Africa 1980/1981, supra note 43, at 70-71
[81] Cited in Masalha Nur (ed.), The Palestinians in Israel: Is Israel the State of all its Citizens and "Absentees"? (Galilee Center for Social Research, 1993) 44, at 53
[82] Ibid., at 54
[83] Granovsky, The Land Issue in Palestine, supra note 33, at 10-18; Granovsky, Land and the Jewish Reconstruction in Palestine, supra note 24, at 105-111, 115-127
[84] Kretzmer, supra note 9, at 91
[85] Granovsky, Land and the Jewish Reconstruction in Palestine, supra note 24, at 110-111
[86] This conclusion was drawn already in the Hope Simpson Report, 20 October 1930, Cmd. 3686, London, at 54, quoted in Granovsky, ibid., at 105-107
[87] Granovsky, id., at 119-127
[88] For more details see Chapter G. (The Right to Property)
[89] Kretzmer, supra note 9, at 91
[90] The Jewish Agency, for instance, with its various departments (political, finance, settlement, immigration, etc.) became the government of the state of Israel. The departments converted into ministries, and the Jewish Agency Executive and, subsequently, the "People's Administration" (Minhelet Ha'Am) became the Cabinet. The Haganah (the defense organization of the "Yishuv") became the Israel Defence Forces (IDF). Special taxes were instituted to purchase weapons for the Haganah and for the absorption of new immigrants. The Histadrut (trade union federation) taxed its members to provide health service and unemployment allowances; the Jewish National Fund (JNF) taxed for settlement and afforestation. See Morris, supra note 8, at 16
[91] The World Zionist Organization (WZO) and Jewish Agency (Status) Law, 1952, 7 L.S.I. (1952-1953) 3; Keren Kayemet Le-Israel Law, 1953, 8 L.S.I. (1953) 35. This law is also known as the "Jewish National Fund Law". For more details on this law see Chapter C. (The Concept of the State of Israel as a "Jewish State" and its Impact on the Right to Equality and other Civil and Political Rights) and Chapter G. (The Right to Property) of this work.
[92] Kretzmer, supra note 9, at 92
[93] Ibid., at 92
[94] Id., at 90; Sternhell, supra note 23, at 396
[95] Basle Program, 1897, supra note 43, at 62
[96] Kretzmer, supra note 9, at 90. For more details regarding the WZO see Chapter G. (The Right to Property)
[97] Mandate for Palestine, 1922, supra note 67, at 67
[98] Ibid.
[99] The local leadership of the Jewish Agency was regarded as the leadership of the "state on the way", see Kretzmer, supra note 9, at 91
[100] Ibid., at 91
[101] Id., at 91
[102] Quoted in Hadawi, supra note 55, at 61
[103] Section 3 of the World Zionist Organization (WZO) and Jewish Agency (Status) Law, 1952, supra note 91; see also Kretzmer, supra note 9, at 91
[104] See also Chapter G. (The Right to Property)
[105] Section 1 of the World Zionist Organization and Jewish Agency for Israel (Status) (Amendment) Law, 30 L.S.I. (1975/76) 43; see also Kretzmer, supra note 9, at 91
[106] Sternhell, supra note 23, at 394; Laqueur, supra note 20; Khalidi-Khadduri, supra note 25 (Chapter II. Historical Background - Origins of Zionism)
[107] Kretzmer, supra note 9, at 61, 91
[108] Joseph Klausner, Land and Soul: The Life and Actions of Professor Zvi Herman Shapira (1966) (Hebrew); Maximilian Hurwitz, The Father of the National Fund, in Eretz Israel: Jubilee Volume of the Jewish National Fund (1932) at 24; both authors are quoted in: Yifat Holzman-Gazit, Private Property, Culture, and Ideology: Israel's Supreme Court and the Jurisprudence of Land Expropriation (unpublished dissertation submitted to the school of law and the committee on graduate studies of Stanford University in partial fulfillment of the requirements for the degree of doctor of the science of law, May 1997) at 146, note 25
[109] Hannah Bodenheimer, The Statutes of the Keren Kayemeth: A Study of Their Origins Based on the Known as well as the Hitherto Unpublished Sources, in 6 Herzl Yr. Book (1964) at 153, quoted in: Holzman-Gazit, ibid., at 146, note 27
[110] Schapira's proposal was originally written in German and appears in the OFFICIAL PROTOCOLS OF THE ZIONIST CONGRESS IN BASLE 1897 (1978) (Hebrew). The passage is quoted in Holzman-Gazit, id., at 147
[111] Bodenheimer, The Statutes of the Keren Kayemeth: A Study of Their Origins Based on the Known as well as the Hitherto Unpublished Sources, in 6 Herzl Yr. Book (1964) at 157, quoted in Holzman-Gazit, id., at 147-148
[112] CERTIFICATE OF INCORPORATION No. 92825, Keren Kayemeth Leisrael Limited, reprinted in Vol. II The Palestine Yearbook on International Law (1985) at 194 [hereinafter: The Palestine Yearbook]
[113] Kretzmer, supra note 9, at 61
[114] Memorandum of Association of the Jewish National Fund, 1907, reprinted in The Palestine Yearbook, supra note 112, at 195
[115] This is an expression of the very early Zionist territorial designs of what the "Jewish State" would be. The definite territorial plan was submitted by the WZO to the Paris Peace Conference in 1919. For the text of this plan see II Herewitz, Diplomacy in the Near and Middle East - Documentary Record: 1914 - 1956, at 45 (1956), quoted in The Palestine Yearbook, supra note 112, at 195, note 1
[116] This restriction led to a closed settlers economy in Palestine where - after the land has been acquired as Jewish property - labour must also be Jewish. Thus a native Palestinian Arab is deprived for ever from the employment of that land. It should be recalled at this point that Article 3(e) of the 1929 Constitution of the JA also dictated that it "shall be deemed to be a matter of principle that Jewish Labour shall be employed." This policy is still strictly adhered to in Israel. For more details on this issue see Chapter G.2. [The Agricultural Settlement (Limitations on Use of Agricultural Land and Water) Law, 1967, 21 L.S.I. (1966/67) 105]
[117] This phrase is repeat several times in the text of these documents and is in conformity with Article 3(d) of the 1929 Constitution of the JA. See sub-chapter 4.3. (The Jewish Agency (JA) - Established in 1922 - Constituted in 1929)
[118] Articles of Association, reproduced in The Palestine Yearbook, supra note 112, at 200
[119] Encyclopedia of Zionism and Israel (Rapael Patai ed., 1971) at 1273, quoted in Holzman-Gazit, Private Property, Culture, and Ideology: Israel's Supreme Court and the Jurisprudence of Land Expropriation, supra note 108, at 148
[120] Sami Hadawi, a Palestinian Arab who was selected in 1952 to act as Land Specialist to the Palestine Conciliation Commission (PCC), writes in a comprehensive study that
"...the objectives of the early Jewish immigrants to Palestine were not regarded by the Arab inhabitants as nationalistic or politically motivated. They were considered as purely religious and philanthropic; therefore the indigenous inhabitants harbored no animosity or opposition to them."
"...because of their ordeal in Russia and Europe, the Arabs even felt sympathy for the 'People of the Book', as the Holy Koran of Islam describes the Jews and Christians. Zionist ambitions were then not generally known, while the inhabitants felt secure in their homes and property."
Hadawi, supra note 55, at 6.
Nevertheless, Hadawi also points to the fact that the relationship between the Jewish community and the local Arab population of Palestine was by no way untroubled. Ibid., at 7; see also Laqueur, supra note 20, at 212
[121] In 1891, the first act of political opposition to Zionism occurred when a group of Muslim notables from Jerusalem sent a petition to the Turkish Vizier that "Russian Jews should be prohibited from entering Palestine and from acquiring land there." Hadawi, supra note 55, at 7
[122] In 1897, the Mufti of Jerusalem presided over a commission which scrutinized applications for transfer of land in the area and was able to stop all purchases by Jews for the next few years. See Hadawi, supra note 55, at 7
[123] In 1905, Neguib Azoury, a Christian Arab and previously an assistant to the Turkish pasha of Jerusalem, had written that it was the fate of the Arab and the Jewish national movements to fight until one or the other prevailed. Quoted in Laqueur, supra note 20, at 215
[124] Hadawi, supra note 55, at 7-8; Laqueur, supra note 20, at 214-215
[125] Laqueur, supra note 20, at 215
[126] Ibid., at 221
[127] McMahon Correspondence, 24 October 1915, Cmd. 5957, published in The Middle East and North Africa 1980/1981, supra note 43, at 62
[128] Sykes-Picot Agreement, 1916, supra note 45, at 62-63
[129] Hadawi, supra note 55, at 19
[130] These supportive documents are:
1. The Hogarth Message of 4 January 1918, infra note 131
2. The Bassett Letter of 8 February 1918
3. The Declaration of the Seven of 16 June 1918
4. The Anglo-French Declaration of 7 November 1918, infra note 132
[131] Hogarth Message, 4 January 1918, published in The Middle East and North Africa 1980/1981, supra note 43, at 64
[132] Anglo-French Declaration, 7 November 1918, published in The Middle East and North Africa 1980/1981, supra note 43, at 64
[133] In 1939, the Maugham Commission was appointed in order to study the Hussein-MacMahon correspondence and to express its opinion as to whether or not Palestine was included. Sir Michael Mc Donnell, former Chief Justice of Palestine, participated in the meetings of the Commission and expressed the opinion that "Palestine was included". The findings of the Maugham Commission were that Great Britain was not free to dispose of Palestine without regard for the wishes and interests of the inhabitants of Palestine and that these statements must be taken into account in any attempt to estimate the responsibilities which Britain has incurred toward these inhabitants as a result of the Correspondence. Hadawi, supra note 55, at 13-14
[134] King-Crane Commission, Recommendations, 28 August 1919 (U.S. Department of State, Papers Relating to the Foreign Relations of the United States. The Paris Peace Conference 1919, Washington, DC, 1944, vol. 12) published in The Middle East and North Africa 1980/1981, supra note 43, at 64
[135] Ibid., at 65
[136] Id.
[137] Id.
[138] Id.
[139] Id., at 64
[140] Id., at 66
[141] Mandate for Palestine, 1922, supra note 67
[142] The Palin Commission dealt with the disturbances that took place in 1920 and attributed the anti-Jewish riots to the following circumstances:
1. Arab disappointment regarding the non-fulfillment of promises made to them.
2. Arab belief that the Balfour Declaration implied a denial of Arab rights.
3. Palestinian fear that the establishment of a Jewish national home on Palestine land would lead to their economic and political subjection to the Jews.
Quoted in Hadawi, supra note 55, at 69 (A Survey of Palestine 1945-1946, Cmd. 1785, Jerusalem, Vol.I, at 17)
[143] The Haycraft Commission investigated the causes of the anti-Jewish riots, that took place in May 1921, and in which a total of 95 persons was killed - 48 Arabs and 47 Jews - and a total of 219 was wounded - 73 Arabs and 146 Jews. See Haycraft Commission Report, supra note 59, at 60. The Report of the Haycraft Commission resumed that "the fundamental cause of the whole riots and acts of violences was a feeling among the Arabs of discontent with, and hostility to, the Jews, due to political and economical causes, and connected with Jewish immigration, and with their conception of Zionist policy as derived from Jewish exponents." Ibid., at 59. In more detail the Haycraft Commission Report stated that the principal reasons for the Arab hostility towards Jews was the popular feeling among them:
"(a) That Great Britain was led by the Zionists to adopt a policy mainly directed towards the establishment of a National Home for the Jews, and not to the equal benefit of all Palestinians.
(b) That in pursuance of this policy the Government of Palestine has, as its official advisory body, a Zionist Commission, bound by its ideals and its conception of its role to regard Jewish interests before all others, and constituted by its singular prerogatives into an imperium in imperio.
(c) That there is an undue proportion of Jews in the Government service.
(d) That a part of the programme of the Zionists is the flooding of Palestine with a people which possesses greater commercial and organising ability than the Arabs, and will eventually obtain the upper hand over the rest of the population.
(e) That the immigrants are an economic danger to the population because of their competition, and because they are favoured in this competition.
(f) That immigrant Jews offend by their arrogance and by their contempt of Arab social prejudices.
(g) That owing to insufficient precautions immigrants of Bolshevik tendencies have been allowed to enter the country, and that these persons have endeavored to introduce social strife and economic unrest into Palestine and to propagate Bolshevik doctrines."
Ibid., at 51
[144] For more details see the description of events in the Peel Commission Report, 22 July 1937, Report of the Palestine Royal Commission, Cmd. 5479, London, published in The Middle East and North Africa 1980/1981, supra note 43, at 68-69; Chapter III (Palestine from 1920 to 1936). Summary of Report, at 4. See also Lex Takkenberg, supra note 7, at 9
[145] Ibid.
[146] Pnina Lahav, Governmental Regulation of the Press: A Study of Israel's Press Ordinance, Part I, 13 Isr.L.R. (1978) 230
[147] Shaw Commission Report, Report of the Commission On the Palestine Disturbances of August 1929, Cmd. 3530, London, 1930, Chapter XIV (Summary of findings and recommendations) at 164
[148] Ibid., at 161
[149] Id., at 161-162
[150] Id., at 163-164
[151] Id., at 162
[152] Id., at 164-165
[153] Laqueur, supra note 20, at 491
[154] Ibid., at 492; Sir John Hope Simpson Report, 20 October 1930, Cmd. 3686, London, at 141
[155] Passfield White Paper, October 1930, Statement of Policy, Cmd. 3692
[156] For more details regarding the Jewish Agency and other Zionist institutions see sub-chapter 4. (Establishment of "Jewish National Institutions" by the Zionist Movement)
[157] Passfield White Paper, 1930, supra note 155, at 17-18
[158] Laqueur, supra note 20, at 492
[159] Ramsay MacDonald Letter to Chaim Weizmann, dated 13 February 1931, The Times (London), 14 February 1931; quoted in Laqueur, supra note 20, at 493
[160] Quoted in Hadawi, supra note 55, at 73
[161] Granovsky, The Land Issue in Palestine, supra note 33, at 10
[162] Pnina Lahav, Governmental Regulation of the Press: A Study of Israel's Press Ordinance, Part II, 13 Isr.L.R. (1978) 489; Hadawi, supra note 55, at 73
[163] Peel Commission Report, 1937, supra note 144
[164] Ibid.
[165] Laqueur, supra note 20, at 515
[166] For the period from 1936 to 1939 the following numbers regarding killings and casualties exist: On the Palestinian Arab side 3.000 were killed; 6.000 were imprisoned and 110 executed. On the British side 150 persons died. On the Jewish side 517 persons died. See Takkenberg, supra note 7, at 9
[167] MacDonald White Paper, 17 May 1939, Statement of Policy, Cmd. 6019, London, published in The Middle East and North Africa 1980/1981, supra note 43, at 69-70
[168] Ibid., at 69
[169] Id., at 70
[170] Id.
[171] Id., at 70. In conformation with this provision the Land Transfer Regulations, 28 February 1940, Great Britain, Parliamentary Papers, Cmd. 6180, was enacted in order to cover the restriction of the sale of Arab land to Jews. For details on these Regulations see Hadawi, supra note 55, at 58-60
[172] Published in Kretzmer, supra note 9, at 45, NOTE 2
[173] Pnina Lahav, Governmental Regulation of the Press: A Study of Israel's Press Ordinance, Part II, 13 Isr.L.R. (1978) at 489 - 490. On 14 May 1948 - the day of the establishment of the state of Israel - the Provisional Council of State declared that such provisions of the law that arise form the MacDonald White Paper, 1939 - i.e. certain sections of the Immigration Ordinance, 1941 and the Defence (Emergency) Regulations, 1945 as well as the whole Land Transfers Regulations, 1940 - are null and void. See Proclamation, 14 May 1948, 1 L.S.I.(1948) 6
[174] Takkenberg, supra note 7, at 10. For more details on this issue see Chapter D.5. (The British Mandatory Defence (Emergency) Regulations; 1945)
[175] Morris, supra note 8, at 6
[176] Takkenberg, supra note 7, at 10.
[177] United Nations General Assembly Resolution 106 (S-1), 15 May 1947, Creating a Special Committee on Palestine (UNSCOP)
[178] United Nations General Assembly Resolution 104 (S-1), 5 May 1947, Granting a Hearing to the Jewish Agency
[179] United Nations General Assembly Resolution 105 (S-1), 7 May 1947, Granting a Hearing to the Arab Higher Committee
[180] Egypt, Iraq, Lebanon, Saudi Arabia and Syria
[181] Takkenberg, supra note 7, at 11
[182] UNSCOP-Report, Report of the United Nations Special Committee on Palestine, 31 August, 1947, UN document A/364, GAOR 2nd Sess., Supplement No. 11, Volumes I-IV
[183] Ibid.
[184] Id.
[185] Takkenberg, supra note 7, at 11
[186] Ibid., at 10
[187] Morris, supra note 8, at 7
[188] Id., at 7
[189] Id., at 9
[190] The deeper reasons for this state of affairs are complex and lay in the British rule and administration which existed in Palestine from 1917 to 1948, furthermore in an almost complete absence of local, district and national Palestinian political and administrative institutions, as well as in the lack of democratic structures and non-representation of the rural Palestinian society. See Morris, supra note 8, at 9
[191] Id., at 10
[192] Id., at 7
[193] Id.
[194] Between February and July 1949, General Armistice Agreements were signed between Israel, on the one hand, and the neighboring Arab countries (Egypt, Lebanon, Jordan and Syria) on the other hand. The General Armistice Agreement with Egypt was signed on 24 February 1949, see United Nations Treaty Series No. 654, at 251 (UN document S/1264/Rev.1); the General Armistice Agreement with Lebanon was signed on 23 March 1949, see United Nations Treaty Series No. 655, at 287 (UN document S/1296/Rev.1); the General Armistice Agreement with Jordan was signed on 3 April 1949, see United Nations Treaty Series No. 656, at 303 (UN document S/1302/Rev.1; the General Armistice Agreement with Syria was signed on 20 July 1949, see United Nations Treaty Series No. 657, at 327 (UN document S/1353/Rev.1).
It should be stressed that the Armistice Agreements were solely based on military considerations and do not prejudice the rights, claims and positions of the parties with regard to the ultimate settlement of the Palestine question.
[195] In this massacre, which took place in mid-December 1947, about one dozen of native Arab civilians (including four children) had been killed. For more details see Morris, supra note 8, at 33, 34
[196] Morris, supra note 8, at 212
[197] Ibid., at 113-115; See also Sabri Geris, Les Arabes en Israël, précédé de "Les juifs et la Palestine" par éli lobel (Librairie François Maspero, 1969) at 146-148
[198] Morris, supra note 8, at 72
[199] Ibid., at 69
[200] In this massacre, which occurred on 29 October 1948, the Israel Defence Forces (IDF) killed about 80-100 Arab men, women and children. For more details on this issue see Morris, supra note 8, at 222
[201] Ibid., at 193
[202] Id., at 113-115
[203] Morris, supra note 8, at 132-154 Chapter 4 (Deciding against a return of the refugees, April-December 1948)
[204] Takkenberg, supra note 7, at 16
[205] Ibid., at 22
[206] Morris, supra note 8, at 132-154 Chapter 4 (Deciding against a return of the refugees, April-December 1948), and at 155-287 Chapter 5 (Blocking a return)
[207] Progress Report of the United Nations Mediator on Palestine, 16 September 1948, UN document A/648, GAOR 3rd Sess., Supplement No. 11, at 28
[208] Takkenberg, supra note 7, at 243
[209] The humanitarian and administrative aspects of the Palestinian Arab refugee problem were dealt with in Part III of the Progress Report, UN document A/648, supra note 207, at 47-57
[210] Ibid., at 14
[211] Id., at 18
[212] Takkenberg, supra note 7, at 22, 23
[213] United Nations General Assembly Resolution 194 (III) Establishing a UN Conciliation Commission for Palestine (UNCCP) and Resolving that the Refugees should be permitted to return to their Homes, 11 December 1948; UN document A/Res/194 (III). This Resolution was adopted with 35 votes in favor, 15 against, including Egypt, Iraq, Lebanon, Saudi Arabia, Syria and Yemen, and 10 abstentions. For more details on this issue see Takkenberg, supra note 7, at 24, 242-250
[214] Takkenberg, ibid., at 24, 244
[215] This declaration as "absentees" took place according to the following legal instruments:
Emergency Regulations (Absentees' Property), 1948, I.R. No. 37 (12 December 1948) Suppl. II, at 59; Emergency Regulations (Absentees' Property) (Extension of Validity), 1948, 4 L.S.I. (1949) 13; Absentees Property Law, 1950, 4 L.S.I. (1949/50) 68. For more details on this issue see Chapter G.2.2. (Declaration of Palestinians as "Absentees" and Confiscating their Land and Movable Property)
[216] The expropriation of so called "abandoned Arab property" took place according to the following legal instruments:
Abandoned Areas Ordinance, 1948, 1 L.S.I. (1948) 25; Emergency Regulations Concerning the Cultivation of Waste Lands and the Use of Unexploited Water Resources, 2 L.S.I. (1948/49) 71; Regulation 125 of the Defense (Emergency) Regulations, 1945, P.G. No.1442 (27 September 1945), Suppl. II, 1055; Emergency Regulations (Requisition of Property), 1948, I.R. No. 39 (24 December 1948), Suppl. II, at 87; Emergency Regulations (Requisition of Property) (Extension of Validity) Law, 1949, 3 L.S.I. (1949) 37. For more details on this issue see Chapter G.2. (The Right to Property)
[217] Takkenberg, supra note 7, at 17
[218] Morris, supra note 8, at 155; Takkenberg, ibid., at 17
[219] Morris, ibid., at 155
[220] Quoted in E. Said, supra note 23, at 14
[221] Morris, supra note 8, at 169
[222] Regarding this issue Moshe Dayan - the military governor of Jewish Jerusalem in mid-March 1949 - stated many years later in an article in the Hebrew newspaper Ha'aretz from 4 April 1969 as follows:
"We came to this country which was already populated by Arabs, and we are establishing a Hebrew, that is a Jewish state here. In considerable areas of the country we bought the lands from the Arabs. Jewish villages were built in the place of Arab villages. You do not even know the names of these Arab villages, and I do not blame you, because these geography books no longer exist; not only do the books not exist; the Arab villages are not there either. Nahalal [Moshe Dayan's own village] arose in the place of Mahalul, Gevat - in the place of Jibta; [Kibbutz] Sarid - in the place of Haneifs and Kefar Yehoshua - in the place of Tell Shaman. There is no one place built in this country that did not have a former Arab population."
Quoted in E. Said, supra note 23, at 14
[223] Law of Return, 1950, 4 L.S.I. (1949/50) 114; as amended by 8 L.S.I. (1953/54) 144; as amended by 24 L.S.I. (1969/70) 28
[224] Nationality Law, 1952, 6 L.S.I. (1951/52) 50; as amended by 34 L.S.I. (1980) 254
[225] E. Said, supra note 23, at 297-298
[226] By 1998, due to natural population growth, the number of refugees registered with UNRWA had increased to nearly 3.5 million, out of a total number of Palestinians world-wide of approximately 6.9 million.
[227] General Armistice Agreements, supra note 194
[228] Statistical Yearbook of Israel (Central Bureau of Statistics) No. 49 (1998) at 2-7
[229] Sabri Jiryis, The Arabs in Israel (Translated from the Arabic by Inea Bushnaq) (Monthly Review Press, New York, 1976) Chapter 1 (For Security Reasons) especially at 15-16, 19-20; Kretzmer, supra note 9, at 3-4. For more details on this issue see Chapter D.5.2.3. (The Defence (Emergency) Regulations, 1945 as Legal Basis for the System of Military Government within Israel from 1948-1966)
[230] The following legal instruments were explicitly enacted by the state of Israel in order to come into possession of Arab owned land:
Emergency Regulations (Absentees' Property), 1948, supra note 215; Emergency Regulations (Absentees' Property) (Extension of Validity), 1948, supra note 215; Absentees Property Law, 1950, supra note 215; Abandoned Areas Ordinance, 1948, supra note 216; Emergency Regulations (Requisition of Property), 1948, supra note 216; Emergency Regulations (Requisition of Property) (Extension of Validity) Law, 1949, supra note 216; Emergency Regulations Concerning the Cultivation of Waste Lands and the Use of Unexploited Water Resources, supra note 216
The following legal instruments dating back to the British mandatory period were used in order to come into possession of Arab owned land:
Land (Acquisition For Public Purposes) Ordinance, 1943, P.G. No. 1268, at 463; Regulation 125 of the Defense (Emergency) Regulations, 1945, supra note 216
For more details regarding these issues see Chapter G. (The Right to Property)
[231] Law of Return, 1950, supra note 223; Nationality Law, 1952, supra note 224
With regard to the still prevailing policy by the Israeli government to reduce the number of Palestinian Arabs living in Israel and the Occupied Territories see the following reports by:
B'Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, The Quiet Deportation, Revocation of Residency of East Jerusalem Palestinians (Jerusalem, April 1997); B'Tselem, The Quiet Deportation Continues, Revocation of Residency and Denial of Social Rights of East Jerusalem Palestinians (Jerusalem, September 1998); B'Tselem, Injustice in the Holy City Jerusalem, Spring 2000
[232] For more details regarding the right to equality see Chapter C. (The Concept of the State of Israel as a "Jewish State" and its Impact on the Right to Equality and other Civil and Political Rights)
[233] For more details regarding the right to freedom of movement see Chapter D.5.2.3. (The Defence (Emergency) Regulations, 1945 as Legal Basis for the System of Military Government within Israel from 1948-1966)
[234] For more details regarding the so called "security matters" see Chapter D.3. (Israel's Concept of "State Security" and the Question of its Compatibility with the Ideas of a "Liberal Democracy and Human Rights") and Chapter D.4. (Israel's Formal "Security" and "Emergency" Legislation: Legal Sources and Justifications)
[235] Ian Lustick, Arabs in the Jewish State, Israel's Control of a National Minority (University of Texas Press, Austin, 1982) at 152
[236] For details on the Balfour Declaration, 1917, see supra sub-chapter 3.2.
[237] Laqueur, supra note 20, at 227, 228
[238] Transfer proposals were made by numerous individual Jews and Zionist leaders - such as Theodor Herzl, David Ben-Gurion, Chaim Weizman, Nachman Syrkin, Arthur Ruppin, Leo Motzkin, Israel Zangwill, Vladimir Jabotinsky, Menachem Ussishkin, Moshe Shertok (Sharett), Abraham Sharon (Schwadron), Edward Norman, Joseph Weitz, Ernest Frankenstein, Victor Gollancz - throughout all times. See on this subject especially Simons, International Proposals to Transfer Arabs from Palestine, 1895-1947. A Historical Survey, supra note 41, Chapter 1 entitled "Proposals By Individual Jews", at 3-85. See on this subject also Laqueur, supra note 20, at 231-232. See also Morris, supra note 8, at 23-28, 135-138, 140, 149, 160-165, 168, 190
Various individual non-Jews - such as Franklin D. Roosevelt, Herbert Hoover, Leopold Amery, Norman Angell, Edwyn Bevan, Ely Culbrtson, John Gunther, Walter Clay Lowdermilk, Richard Meinertzhagen, James Parkes, Harry St. John Philby - also suggested population transfers. See Simons, ibid., Chapter 2 entitled "Proposals By Individual Non-Jews", at 87-121
[239] Ibid. See also the examples regarding Arab population transfer given in supra note 58
[240] See for example the Report of the Haycraft Commission which stated as follows:
"...we feel convinced that there would be no animosity [of Arabs] towards the Jews as such: that there is no inherent anti-Semitism in the country, racial or religious. We are credibly assured by educated Arabs that they would welcome the arrival of well-to-do and able Jews who could help to develop the country to the advantage of all sections of the community..."
Report of the Haycraft Commission, supra note 59, at 54
See also Bernard Joseph, British Rule in Palestine (Public Affairs Press, Washington, 1948)
[241] E. Said, supra note 23, at 88
[242] In 1895, Theodor Herzl wrote in his Diaries that something ought to be done about the Palestinian Arab inhabitants:
"We shall have to spirit the penniless population across the border by procuring employment for it in the transit countries, while denying it any employment in our country. Both the process of expropriation and the removal of the poor must be carried out discreetly and circumspectly."
Quoted in E. Said, ibid., at 13
[243] In 1891, Ahad Ha'am, a leading Zionist figure, went to Palestine and warned in an article that:
"...The Arabs, and above all the town dwellers among them, were quite aware of Jewish activities and desires, but pretended not to notice them so long as they seemed to constitute no real danger. But if one day the Jews were to become stronger and threaten Arab predominance, they would hardly take this quietly."
Quoted in Laqueur, supra note 20, at 210
[244] In 1905, Yitzhak Epstein, for example, held a speech in which he stated that the so called "Arab question" was well known as
"...the most important of all the problems facing Zionism."
(The speech was published only in 1907. The expression "Arab question" was commonly used in order to describe the Palestinian opposition to the goals of the Zionist movement, which completely ignored the existence, the national rights and interests of several hundred thousands of Arabs living in Palestine at that time and constituting the majority of the local population.)
In his speech, Yitzhak Epstein, inter alia, warned
"...that Zionism should enter into alliance with the Arabs"; that "the Jews who returned to their country should do so not as conquerors"; and that "they [the Jews] should not violate the rights of a proud and independent people such as the Arabs, whose hatred, once aroused, would have the most dangerous consequences."
Quoted in Laqueur, ibid., at 215, 216
In order to solve the problems, Epstein envisaged a charter between Jews and Arabs, and urged that there should be no rivalry between those "two old Semitic peoples" which should assist each other. Epstein also issued several recommendations - such as the opening of Jewish hospitals, schools, kindergartens and reading rooms for Arabs - in order to improve the relations with them. He also stressed that the intention should not be to proselytize the Arabs but to help them find their own identity, and that the Jews should take account of the psychological situation of the Arabs, something which had been utterly neglected in the past.
[245] In 1909, a Hebrew journal published a story of an Arab woman working at Wadi Chanin, a bulk of land that was recently acquired by Jews. The Hebrew paper wrote as follows:
"...suddenly she started weeping, and when asked by those working with her why she was crying she answered that she had recalled that only a few years earlier this very plot had belonged to her family."
Quoted in Laqueur, id., at 214
[246] E.g., Granovsky, The Land Issue in Palestine, supra note 33, at 10
[247] King-Crane Commission, Recommendations, 1919, supra note 134, at 64
[248] In the period between 1920 until 1939 five commissions of inquiry were appointed in order to investigate the causes of disturbances between the native Palestinian Arab and the immigrant Jewish community: See the Palin Commission in 1920; the Haycraft Commission in 1921; the Shaw Commission in 1929; the Peel (Royal) Commission in 1937; the Woodhead (Partition) Commission in 1939
[249] Sternhell, supra note 23, at 43, 44
[250] Laqueur, supra note 20, at 589-591
[251] See especially the forceful analysis about Zionism given by E. Said, supra note 23, Chapter 2 (Zionism from the Standpoint of Its Victims)
[252] UNSCOP-Report, 1947, supra note 182, at 30
[253] 65-70% of all Palestinians were living in 800-850 villages. The remaining 30-35% lived in cities and towns. Morris, supra note 8, at 8
[254] Klein, La Démocratie d' Israel (Editions du Seuil, Paris, 1997) at 42, NOTE 1; Hadawi, supra note 55, at 79 [1 dunam = ~1/4 of an acre. 1000 dunams = 1 sq.km]
[255] Klein, ibid., at 42, NOTE 1; Hadawi, ibid., at 80
[256] UNSCOP-Report, 1947, supra note 182, at 30
[257] Morris, supra note 8, Chapter 5 (Blocking a return) at 155
[258] General Armistice Agreements, supra note 194
[259] In 1997 approximately 194 settlements existed in the occupied Gaza Strip, the West Bank and East Jerusalem. See Jerusalem Media and Communication Centre, Signed, Sealed, Delivered: Israeli Settlement and the Peace Process (January 1997) at 1
[260] In 1997 more than 300.000 Jewish settlers lived in the occupied Gaza Strip (~5000 settlers), the West Bank (~140.000 settlers) and East Jerusalem (~170.000 settlers). Ibid., at 1, 51
[261] B'Tselem, A Policy of Discrimination, Land Expropriation, Planning and Building in East Jerusalem, 1997, supra note 36
[262] B'Tselem, The Quiet Deportation, 1997, supra note 231; B'Tselem, The Quiet Deportation Continues, 1998, supra note 231; B'Tselem, Injustice in the Holy City Jerusalem, 2000, supra note 231; LAW, House Demolition and the Control of Jerusalem. Case Study of al Issawiya Village, Jerusalem, June 1995; LAW, Netanyahu's Legacy, June 1999; LAW, Land & Settlement Policy in Jerusalem (First Printed June 1999, Reprinted January 2000)
[263] Hague Regulations Annexed to the Hague Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907
[264] Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949
[265] Article 46 of the Hague Regulations, 1907
[266] Article 52 of the Hague Regulations, 1907 allows the occupying power to take land for compensation, but only to meet its military needs. Requisition of the land, contrary to confiscation, is temporary by definition, and the occupying power does not obtain ownership.
A fundamental principle of international humanitarian law relating to territory subject to belligerent occupation is, according to the commentary of the International Committee of the Red Cross (ICRC), that "the occupation of territory in wartime is essentially a temporary, de facto, situation." See Jean S. Pictet (ed.), Commentary: Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: International Committee of the Red Cross, 1958) at 275. The temporary nature of occupation entails limitations imposed on the occupying power regarding the creation of permanent facts in the occupied territory.
[267] Article 47 of the Fourth Geneva Convention, 1949 explicitly stipulates:
"Protected persons who are in occupied territory shall not be deprived in any case or in any manner whatsoever of the benefits of the present Convention by any change introduced as the result of the occupation of territory, into the institutions of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the occupying power, nor by annexation of the latter of the whole or part of the occupied territory."
[268] Article 49 of the Fourth Geneva Convention, 1949 explicitly stipulates:
"The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."
The ICRC's commentary to this article states that the article "is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories." See Pictet, Commentary, supra note 266, at 283
[269] B'Tselem, A Policy of Discrimination, Land Expropriation, Planning and Building in East Jerusalem, 1997, supra note 36; B'Tselem, Israeli Settlement in the Occupied Territories as a Violation of Human Rights: Legal and Conceptual Aspects (Jerusalem, March 1997); B'Tselem, On the Way to Annexation, Human Rights Violations Resulting from the Establishment and Expansion of the Ma'aleh Adumim Settlement (Jerusalem, July 1999); LAW, House Demolition and the Control of Jerusalem, 1995, supra note 262; LAW, Fraud, Intimidation, Oppression: The Continued Theft of Palestinian Land. Case Study of Jeensafut Village: One Man's Struggle to Defend His Land, Jerusalem, October 1995; LAW, Bulldozed into Cantons: Israel's House Demolition Policy in the West Bank Since the Signing of the Oslo Agreements. September 1993 to February 1999. First Edition: Parastou Hassouri, February 1999 Revision: Richard Clark; LAW, Netanyahu's Legacy, June 1999; LAW, Land & Settlement Policy in Jerusalem (First Printed June 1999, Reprinted January 2000)
[270] Combined Initial and Second Report Concerning the Implementation of the International Covenant on Economic, Social and Cultural Rights [ICESCR]. The Report was submitted on 28 November 1997 to the UN and circulated as UN document E/1990/5/Add. 39
[271] Ibid., para. 3
[272] Id., para. 5
[273] Basic Law: Human Dignity and Freedom, S.H. No. 1391 (25 March 1992) amended by Basic Law: Freedom of Occupation, S.H. No. 1454 (10 March 1994); Basic Law: Freedom of Occupation, S.H. No. 1387 (12 December 1992) repealed by Basic Law: Freedom of Occupation, S.H. No. 1454 (10 March 1994). The English version of these two basic laws appears in Public Law in Israel (edited by Itzhak Zamir and Allen Zysblat, Clarendon Press, Oxford, 1996) 154-157
[274] United Nations General Assembly 181 (II) on the Future Government of Palestine of 29 November 1947, [Partition Resolution] UN document A/Res/181 (II) (A+B)
[275] Ibid., Part I, Section B, paras. 9, 10, 10(d) and Section C
[276] Id., Part I, Section C, para. 1
[277] Id., Part I, Section C, Chapter 2 (Religious and Minority Rights)
[278] Id., Part I, Section F
[279] The Declaration of the Establishment of the State of Israel of 14 May 1948 is commonly referred to also as "Declaration of Independence", but the formal title is "Declaration of the Establishment of the State of Israel", see 1 L.S. I. (1948) 3
[280] The Declaration of the Establishment of the State of Israel, 1948 consists of four main parts. The first part of the Declaration - ending with the words "...the right of the Jewish people to establish their State is irrevocable" - is an introduction to the history and tragedy of the Jewish people. This first part speaks of the catastrophe which befell the Jewish people by the Holocaust - the massacre in which millions of European Jews were murdered - and which provides - according to the Declaration of the Establishment of the State of Israel - the moral basis for the urgency of solving the problem of the homelessness of the Jewish people by establishing the Jewish state. This first part also expresses the international recognition of the right of the Jewish people to establish their state. See Amnon Rubinstein, The Constitutional Law of the State of Israel (5th ed., Shocken Press, Jerusalem, Tel Aviv, 1996) (Hebrew) 45
[281] Declaration of the Establishment of the State of Israel, supra note 7, at 4
[282] The date of 1 October 1948 was also the outside date previously designated in the UN Resolution 181 (II) of 29 November 1947 for the creation of independent Arab and Jewish states, and the Special International Regime for the City of Jerusalem. See UN Resolution 181 (II), supra note 2, Part I, Section A, para. 3
[283] Declaration of the Establishment of the State of Israel, supra note 7, at 4
[284] To mention, however, is the fact that, although the state of Israel was established on the basis of a democratic state, the explicit word "democracy" was never used in the Declaration of the Establishment of the State of Israel. See Declaration of the Establishment of the State of Israel, supra note 7
[285] Ibid., at 4
[286] Basic Law: Human Dignity and Freedom, supra note 1
[287] Basic Law: Freedom of Occupation, supra note 1
[288] Harari Resolution, 5 D.K. 1743 (14 June 1950)
[289] See the considerations of the basic laws in the Combined Initial and Second Report Concerning the Implementation of the International Covenant on Economic, Social and Cultural Rights [ICESR]. The Report was submitted on 28 November 1997 to the UN and circulated as UN document CESR/E/1990/5/Add. 39 [Combined Initial and Second Report on the Implementation of the ICESCR, 1997] para. 39
[290] There are all in all 120 members in the Knesset. Entrenched sections are for instance: Sections 4, 44 and 45 of the Basic Law: The Knesset, 12 L.S.I. (1957/58) 85
[291] Basic Law: The Knesset, ibid.
[292] Basic Law: The Government, 22 L.S.I. (1968) 257
[293] Basic Law: The President of the State of Israel, 18 L.S.I. (1964) 118
[294] Basic Law: The Army, 30 L.S.I. (1976) 150
[295] Basic Law: Judicature, 38 L.S.I. (1984) 101
[296] Basic Law: The State Comptroller, 42 L.S.I. (1988) 30
[297] Basic Law: The State Economy, 29 L.S.I. (1975) 273
[298] Basic Law: Jerusalem, Capital of Israel, 34 L.S.I. (1980) 209
[299] Basic Law: Israel Lands, 14 L.S.I. (1960) 48
[300] Basic Law: Human Dignity and Freedom, supra note 1
Basic Law: Freedom of Occupation, supra note 1
[301] David Kretzmer, The New Basic Laws on Human Rights: A Mini-revolution in Israeli Constitutional Law?, published in Public Law in Israel (edited by Itzhak Zamir and Allen Zysblat, 1996) at 141, 146
[302] The first general discussion regarding a bill of rights was in 1950, preceding the Harari Resolution. The second major debate was in 1964, when Liberal MK, Professor Klinghoffer, proposed a private member's Bill of Rights (See the discussion in 38 D.K. 784-794; the draft bill is discussed at 798-802). The third discussion was in 1973 (See 70 D.K. 1565-1588, 1752-1762; 71 D.K. 2484-2500, 2731-2739 [1974]). Another general discussion was held in 1982 (see 92 D.K. 2680, 2 June 1982). For more details on this issue see Ruth Gavison, The Controversy over Israel’s Bill of Rights, 15 I.Y.H.R. (1985) at 123-124
[303] Proposed Basic Law: Rights of Citizen and Man, 1973, H.H. No.1085 (12 August 1973) 448
[304] Proposed Basic Law: Charter of Human Rights, 1983, H.H. No.1612 (2 February 1983) 111
[305] Proposed Constitution for the State of Israel, 1987, drafted by Dean Uriel Reichman (chairperson), the Professors Baruch Bracha, Ariel Rosen-Zvi and Amos Shapira, in collaboration with other Israeli and foreign scholars.
[306] Proposed Basic Law: Fundamental Human Rights, (1989) published in I. Gal-Nor and M. Hofnung, Government of the State of Israel (Jerusalem: Nevo Publishing House, 1993) 1135
[307] Dan Meridor, Zionism and Democracy are the Only Way to Rule the Country, 21 Justice (1999) 3, at 4
[308] Frances Raday, Religion, Multiculturalism and Equality: The Israeli Case, 25 I.Y.H.R. (1995) 211
[309] Meridor, supra note 35, at 4
[310] Ibid.
[311] Basic Law: Human Dignity and Freedom, supra note 1
[312] Basic Law: Freedom of Occupation, supra note 1
40A http://www.knesset.gov.il/knesset/knes/eng_mimshal_yesod25.htm (Basic Laws in the Process of Enactment)
[313] Draft Basic Law: Due Process Rights, H.H. No. 2256 (7 March 1994) 335; Combined Initial and First Periodic Report Concerning the Implementation of the International Covenant on Civil and Political Rights [ICCPR]. The Report was submitted in June 1998 to the UN Human Rights Committee and circulated as UN document CCPR/C/81/Add.13 [hereinafter: Combined Initial and First Periodic Report on the Implementation of the ICCPR, 1998], paras. 35, 43, 411
[314] Draft Basic Law: Social Rights Bill, H.H. No. 2256 (7 March 1994) 337; Combined Initial and Second Report on the Implementation of the ICESCR, 1997, supra note 17, para. 41, para. 46 (contains the main provisions of the Draft Basic Law: Social Rights Bill), para. 47 (points to the fact that the Draft Basic Law: Social Rights Bill is only "symbolically important"). It should be mentioned that - if enacted in this form - the Draft Basic Law: Social Rights Bill (para. 46) may only be considered as declaratory in nature, since it does not really show the extent and the depth of Israel's commitment to the rights covered in it.
[315] Draft Basic Law: Freedom of Expression and Association, H.H. No. 2256 (7 March 1994) 336; Combined Initial and First Periodic Report Concerning the Implementation of the ICCPR, 1998, supra note 41, paras. 35, 411
[316] HA'ARETZ, English Edition, 29 September, 1998, at A3
[317] Yaffa Zilbershatz, Highlighting Constitutional Changes in the Israeli Legal System, 7 Justice (1995) at 28, 31
[318] C.A. 6821/93, 1908/94, 3363/94, United Mizrachi Bank v. Migdal Cooperative Village, 49(iv) P.D. 221; for a summary and extracts in English from the judgment see 31 Isr.L.Rev. (1997) 764; for a discussion of the case see also Yaffa Zilbershatz, The Israeli Constitution after Mizrahi Bank v. Migdal (The Gal Amendment Decision), 10 Justice (1996) 22
[319] The Court also examined other intertwined questions such as if the Knesset has the authority to legislate a bill of rights and if so, on what legal basis.
[320] Until then the Court only declared a law void if it has been enacted in a manner inconsistent with a Basic Law, i.e. only for procedural reasons.
[321] Section 8 of the Basic Law: Human Dignity and Freedom states that the rights according to this Basic Law may not be infringed except by a statute 1. which accords with the values of the state of Israel as a Jewish and democratic state, 2. which was intended for a fitting/worthy purpose, and 3. only to the extent necessary. A real problematic issue is - as I see it - the reference to the values of the state of Israel (to be a Jewish and democratic state) due to the following two facts: First, the definition of the state of Israel as a "Jewish state" emphasizes the national character of the state, and is not only a sociological description but rather an ideological one that finds its expressions in the constitutional framework (statutes and jurisprudence) of the state. Secondly, Section 8 has to be read in connection with Section 1A of the Basic Law: Human Dignity and Freedom referring to the values of the state of Israel as a "Jewish and democratic state" and stating that the purpose of this Basic Law is to protect human dignity and freedom in order to entrench these values. For more details on this issue see sub-chapter 8
[322] The Mizrahi Bank case will be discussed in more detail below in sub-chapter 8
[323] Basic Law: Human Dignity and Freedom, supra note 1; Basic Law: Freedom of Occupation, supra note 1
[324] H.C. 73/53, Kol Ha’am Company Ltd. v. Minister of Interior, translated into English in 1 S.J. (1948-1953) 90
[325] David Kretzmer, Israel’s Basic Laws on Human Rights, Israeli Reports to the XV International Congress of Comparative Law (Sacher Institute, Jerusalem 1999, ed. by A. M. Rabello) 293, at 296
[326] Combined Initial and First Periodic Report Concerning the Implementation of the ICCPR, 1998, supra note 41, para. 347
[327] Asher Maoz, The Institutional Organization of the Israeli Legal System, published in Introduction to the Law of Israel (edited by Amos Shapira and Keren C. DeWitt-Arar, Kluwer Law International, 1995) at 31
[328] Ibid.
[329] Section 1(a) of the Basic Law: Judicature, supra note 23
[330] Within the framework of the Magistrates Courts there also operate Youth Courts. Under recent legislation, special Family Courts have been set up within the Magistrates Court system. For more details see Combined Initial and First Periodic Report Concerning the Implementation of the ICCPR, 1998, supra note 41, paras. 351, 352
[331] There exist five judicial districts and accordingly five District Courts exist in the following five towns: Jerusalem, Tel-Aviv, Haifa, Bersheba and Nazareth. Ibid., para. 349
[332] Sections 40 and 51 of the Courts Law [Consolidated Version], 1984, S.H. (1984) 198
[333] Combined Initial and First Periodic Report on the Implementation of the ICCPR, 1998, supra note 41, para. 356-360
[334] Military Justice Law, 1955, 9 L.S.I. (1954/55) 184
[335] Defence (Emergency) Regulations, 1945, P.G. No.1442 (27 September 1945) Suppl. II, at 1055. For more details on this issue see Chapter D.5.2.3. (The Defence (Emergency) Regulations, 1945 as Legal Basis for the System of Military Government within Israel from 1948-1966)
[336] Military Justice Law, 1955, supra note 62
[337] Section 183 of the Military Justice Law, 1955, ibid.
[338] The District Courts Martial sit in three- or five judge panels; the majority of them are officers, and at least one of them is a legally-trained military judge. Combined Initial and First Periodic Report on the Implementation of the ICCPR, 1998, supra note 41, para. 356
[339] The Naval Courts Martial may be constituted on a naval vessel outside the coastal waters of Israel to try soldiers for an offense committed on that vessel, if the postponing of the trial could severely harm discipline on that vessel and if the vessel in not expected to return within 21 days. Naval Courts Martial always sit as a three-judge panel, at least one of them must be an officer. Ibid.
[340] The Field Courts Martial are constituted only in periods of actual combat. Id.
[341] The Special Court Martial is empowered to try officers of the rank of Lieutenant-Colonel. or higher on any charge, and any soldier charged with an offense punishable by death. Id.
[342] A Traffic Court Martial always sits as a single judge. Id.
[343] The Appeals Court Martial generally hears cases in a three-judge panel. Id., para. 357
[344] Id., para. 358
[345] Defence (Emergency) Regulations, 1945, supra note 63. For more details on this issue see Chapter D.5.2.3. (The Defence (Emergency) Regulations, 1945 as Legal Basis for the System of Military Government within Israel from 1948-1966)
[346] Combined Initial and First Periodic Report on the Implementation of the ICCPR, 1998, supra note 41, para. 359
[347] Dayanim Law, 1955, 9 L.S.I. (1954/55) 74. Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, 7 L.S.I. (1952/53) 139
[348] Qadis Law, 1961, 15 L.S.I. (1960/61) 123. An overview of the jurisdiction of Moslem Sharia Courts in Israel, the practiced law and applicable legal theory in these Moslem Sharia Courts, as well as the situation that exists because of the Israeli legislative interventionism is given by Ahmad H. Natour, Qadi and President of the High Sharia'a Court of Appeal, Moslem Sharia'a Court Should be Left to its Own Creative Devices, 17 Justice (1998) 16
[349] Druze Religious Courts Law, 1962, 17 L.S.I. (1963/64) 27; Druze Religious Courts (Special Provisions), 1967, 21 L.S.I. (1967) 134. An overview of the jurisdiction of Druze Religious Courts in Israel, the Druze legal system and applicable law in these courts is given by Naim Henu, Qadi and Head of the Druze Religious Courts in Israel, Druze Religious Courts do not Intervene in Social Life but Modernization has its Repercussions, 17 Justice (1998) 23
[350] For more details regarding the recognized Christian communities see Chapter C.2.1. (The Relationship between State and Religion - General Remarks)
[351] Section 15(a) of the Basic Law: Judicature, supra note 23
[352] Section 15 of the Basic Law: Judicature, Ibid.
[353] Section 15(b) of the Basic Law: Judicature, id.
[354] Section 15(c) of the Basic Law: Judicature, id.
[355] Maoz, supra note 55, at 34
[356] Section 15(d)(2) of the Basic Law: Judicature, supra note 23
[357] Asher Maoz, The System of Government in Israel, 8 T.A.Univ.Stud.i.L.(1988) 9, at 49, 50
[358] Zeev Segal, The Locus Standi at the Supreme Court of Israel (Second Ed., 1993) (Hebrew)
[359] Pnina Lahav, Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy, 24 Isr.L.Rev. (1990) 211, at 251-258; Itzhak Zamir, Human Rights and National Security, 23 Isr.L.Rev. (1989) 375, at 392-405; Baruch Bracha, The Protection of Human Rights in Israel, 12 I.Y.H.R.(1982) 110; Amos Shapira, The Status of Fundamental Individual Rights in the Absence of a Written Constitution, 9 Isr.L.Rev. (1974) 497
[360] Kol Ha'am, supra note 52
[361] H.C. 1/49, Bejerano v. Minister of Police, for a summary in English see 8 I.Y.H.R. (1978) 373; H.C. 144/50, Sheib v. Minister of Defence, translated into English in 1 S.J. (1948-1953) 1, at 14
[362] H.C. 243/62, Israeli Film Studios Ltd. v. Levi Geri and the Film and Theater Censorship Board, translated into English in 4 S.J. (1961-1962) 208, at 216; H.C. 262/62, Peretz v. The Local Council of Kfar Shmaryahu, translated into English in 4 S.J. (1961-1962) 191, at 205
[363] H.C. 98/69, Bergman v. Minister of Finance, translated into English in 8 S.J. (1969-1988) 13, at 18
[364] Kol Ha'am, supra note 52; Israel Film Studios Ltd v. Levi Geri. supra note 90
[365] Press Ordinance, 1933, reprinted in M. Doukhan, Laws of Palestine, 1932, 243-266
[366] For details see Chapter F.3.2. (Supreme Court Cases concerning Section 19(2) of the Press Ordinance, 1933)
[367] Defence (Emergency) Regulations, 1945, supra note 63
[368] For details see Chapter F.3.3. (Supreme Court Cases concerning Regulation 94(2) of the Defence (Emergency) Regulations, 1945)
[369] See for example the below described cases - involving the Palestinian Arab minority in Israel within the Green Line - concerning the following issues:
Expropriation of private land owned by Palestinian Arab citizens of Israel:
H.C 30/55, Nazareth Lands Defence Committee v. Minister of Finance, 9 P.D. 1261;
H.C. 181/57, Ahmad Kassam v. Minister of Finance, 12 P.D. 1986
Declaration of Palestinians as "Absentees" and Confiscating their Land:
C.A. 58/54, Habab v. The Custodian of Absentees' Property, 10 P.D. 912; C.A. 440/60, Natzara v. Custodian of Absentees Property, 17(ii) P.D. 1345; C.A. 1397/90, Diab v. Custodian of Absentees' Property, 46(v) P.D. 789; C.A. 3747/90, Custodian of Absentees' Property v. Mussa, 46(iv) P.D. 361; H.C. 32/62, Custodian of Absentees' Property v. Shariah Court, 16(iii) P.D. 1942; C.A. 434/62, Beria v. Custodian of Absentees' Property, 17(iii) P.D. 1538
Retrospective validation of expropriations of Palestinian Arab owned lands, that was used or assigned for purposes of so called "security" (which means for military purposes or for development of existing or newly established Jewish settlements):
H.C. 5/54, Yonas v. Minister of Finance, 8 P.D. 314; H.C. 14/55, Al-Nadaf v. Minister of Finance, 11 P.D. 785; H.C. 158/58, (Tsch -) Uda v. Competent Authority, 12 P.D. 1513
[370] See the below described cases involving the Palestinian people in the Occupied Territories:
Requisition of Palestinian Arab private land for the establishment of military bases and Jewish civilian settlements:
H.C. 606/78, Ayub v. Minister of Defence, for a summary in English see 9 I.Y.H.R. (1979) 337 [The Beth El case]
Expropriation of Palestinian Arab private land for the construction of highways:
H.C. 393/82, Askan (Cooperative Society Lawfully Registered in the West Bank Region) v. Military Commander of IDF in the West Bank, translated into English in Public Law in Israel (ed. by Itzhak Zamir and Allen Zysblat, Clarendon Press Oxford, 1996) 396, at 407
Demolitions of houses belonging to Palestinian Arab civilians living in the Occupied Territories:
H.C. 361/82, Khamri v. Military Commander of IDF in the West Bank, for a summary in English see 17 I.Y.H.R. (1987) 314; H.C. 698/85, Dagalis v. Military Commander of IDF in the West Bank, for a summary in English see 17 I.Y.H.R. (1987) 315; H.C. 897/86, Jab'r v. Military Commander of IDF Central Command, for a summary in English see 18 I.Y.H.R. (1988) 252; H.C. 779/88, Alfasfus v. Minister of Defence, for a summary in English see 23 I.Y.H.R. (1993) 316; H.C. 796/88, Ahlil v. Minister of Defence, for a summary in English see 23 I.Y.H.R. (1993) 320; H.C. 45/89, Abu Daka v. Minister of Defence, for a summary in English see 23 I.Y.H.R. (1993) 322; H.C. 610/89, Bakhari v. Military Commander of IDF in the Gaza Strip, for a summary in English see 23 I.Y.H.R. (1993) 325; H.C. 658/89, Sanuar v. Military Commander of IDF in the Gaza Strip, for a summary in English see 25 I.Y.H.R. (1995) 324; H.C. 987/89, Kahavagi v. Military Commander of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 329; H.C. 1005/89, Aga v. Military Commander of IDF in the Gaza Strip, for a summary in English see 23 I.Y.H.R. (1993) 330; H.C. 2209/90, Shuahin v. Military Commander of IDF in the West Bank, for a summary in English see 25 I.Y.H.R. (1995) 325; H.C. 4112/90, Association for Civil Rights in Israel v. Military Commander of IDF in the Southern District, for a summary in English see 23 I.Y.H.R. (1993) 333; H.C. 5740/90, Hagba v. Military Commander of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 336; H.C. 42/91, Timraz v. Military Commander of IDF in the Gaza Strip, for a summary in English see 23 I.Y.H.R. (1993) 337; H.C. 2977/91, Tag v. Minister of Defence, for a summary in English see 25 I.Y.H.R. (1995) 330; H.C. 4772/91, Khizran v. Military Commander of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 349; H.C. 5139/91, Zakik v. Military Commander of IDF in the West Bank, for a summary in English see 25 I.Y.H.R. (1995) 334; H.C. 2722/92, Al-Amrin v. Military Commander of IDF in the Gaza Strip, for a summary in English see 25 I.Y.H.R. (1995) 337
Sealing off of houses belonging to Palestinian Arab civilians living in the Occupied Territories:
H.C. 434/79, Sakhawil v. Military Commander of IDF in the West Bank, for a summary in English see 10 I.Y.H.R. (1980) 345; H.C. 22/81, Khamed v. Military Commander of IDF in the West Bank, for a summary in English see 11 I.Y.H.R. (1981) 365; Jab'r v. Military Commander of IDF Central Command, ibid.; H.C. 387/89, Ragabi v. Military Commander of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 324; H.C. 987/89, Kahavagi v. Military Commander of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 329; Aga v. Military Commander of IDF in the Gaza Strip, ibid.; H.C. 948/91, Hodli v. Military Commander of IDF in the West Bank, for a summary in English see 25 I.Y.H.R. (1995) 327; H.C. 5667/91, Gabrin v. Military Commander of IDF in the West Bank, for a summary in English see 25 I.Y.H.R. (1995) 335; H.C. 5510/92, Turkeman v. Minister of Defence, for a summary in English see 25 I.Y.H.R. (1995) 347
Forfeitures of houses belonging to Palestinian Arab civilians living in the Occupied Territories:
H.C. 5139/91, Zakik v. Military Commander of IDF in the West Bank, for a summary in English see 25 I.Y.H.R. (1995) 334
Seizure of houses belonging to Palestinian Arab civilians living in the Occupied Territories:
H.C. 401/88, Abu Ryan v. Military Commander of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 296
Seizure of land owned by Palestinian Arab civilians living in the Occupied Territories:
H.C. 290/89, Goha v. Military Commander of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 323
99 Extrajudicial killings and executions of Palestinian Arab civilians by special (undercover) units of the Israeli army:
H.C. 234/84, Hadashot v. Minister of Defence, 38(ii) P.D. 477; H.C. 428/86, Barzilai v. Government of the State of Israel, translated into English in 6 S.J. (1986) 1; H.C. 2888/99, Hollander v. 1. Attorney General, 2. Chief Commander of the Military, 3. Uri Shoham, Attorney General of the IDF, 4. Lieutenant Colonel, Erez, translated into English by Adalah: http://www.adalah.org/supreme.html
Administrative detention of Palestinian Arab civilians living in the Occupied Territories:
H.C. 253/88, Sagdia et al v. Minister of Defence, for a summary in English see 23 I.Y.H.R. (1993) 288; H.C. 576/88, Husseini v. 1) Deputy President of the District Court of Jerusalem, Judge Eliyahu Noam and 2) Minister of Defence, for a summary in English see 23 I.Y.H.R. (1993) 299; H.C. 769/88, Oubeid v. Military Commander of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 315; H.C. 670/89, Ouda v. Military Commanders of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 326
Administrative detention and taking of hostages over years without fair trial of Palestinian Arab civilians living in the Occupied Territories:
H.C. 6843/93, Qattamseh v. Military Commander of IDF in the West Bank, Takdin Elyon 94(2) 2084; AAD 10/94, Plonim (i.e. Unnamed) v. Minister of Defence. Translated into English by Amnesty International: http://www.btselem.org/Files/site/english/data/lebanon/detainees.htm
For a summary in English of this case see B'Tselem, The B'Tselem Human Rights Report, Volume 6, Summer 1998. See also on this issue the detailed report of B'Tselem, Israeli Violations of Human Rights of Lebanese Civilians (Jerusalem, January 2000) at 41-46
Deportation of Palestinian Arab civilians living in the Occupied Territories:
H.C. 97/79, Abu Awad v. Military Commander of IDF in the West Bank, for a summary in English see 9 I.Y.H.R. (1979) 343; H.C. 320/80, Kawasme v. Minister of Defence, for a summary in English see 11 I.Y.H.R. (1981) 344; H.C. 698/80, Kawasme v. Minister of Defence, for a summary in English see 11 I.Y.H.R. (1981) 349; H.C. 629/82, Mustafa v. Military Commander of IDF in the West Bank, for a summary in English see 14 I.Y.H.R. (1984) 313; H.C. 513/85, 514/85, Nazal v. Military Commander of IDF in the West Bank, for a summary in English see 16 I.Y.H.R. (1986) 329; H.C. 672/88, Lavdi v. Military Commander of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 309; H.C. 765/88, Shakhshir v. Military Commander of IDF in the West Bank (First and Second Phase), for a summary in English see 23 I.Y.H.R. (1993) 311-314; H.C. 792/88, Matur v. Military Commander of IDF in the West Bank (First and Second Phase), for a summary in English see 23 I.Y.H.R. (1993) 316-320; H.C. 814/88, Nassaralla et al. v. Military Commander of IDF in the West Bank, for a summary in English see 23 I.Y.H.R. (1993) 321
Mass deportation of Palestinian Arab civilians living in the Occupied Territories:
H.C. 785/87, Abd al Nasser al Aziz Abd al Aziz al Affo. 2. The Association for Civil Rights in Israel v. Military Commander of IDF in the West Bank; H.C. 845/87, 1. Abd al Aziz Abd Alrachman Ude Rafia. 2.The Association for Civil Rights in Israel v. 1. Military Commander of IDF in the Gaza Strip. 2. Minister of Defence; H.C. 27/88, 1. J'Mal Shaati Hindi v. Military Commander of IDF in the West Bank, translated into English in 29 International Legal Materials (1990) 139 [The Afu case]; H.C. 5973/92, Association for Civil Rights in Israel v. Minister of Defence, translated into English in 10 S.J. (1988-1993) 168, for a summary in English see 23 I.Y.H.R. (1993) 353
Imposition of censorship on the press and published materials in connection with the Palestinian Arab people:
H.C. 619/78, Al-Talia Weekly Magazine v. Minister of Defence, for a summary in English see 10 I.Y.H.R. (1980) 333; H.C. 322/81, Makhoul v. District Commissioner, 37(i) P.D. 789; H.C. 415/81, Ayoub v. District Commissioner, 38(i) P.D. 750; H.C. 541/83, Asli v. District Commissioner, 37(iv) P.D. 837; H.C. 234/84, Hadashot v. Minister of Defence, 38(ii) P.D. 477
[372] H.C. 10/48, Zvi Zeev v. The Acting District Commissioner of the Urban Area of Tel Aviv (Gubernik), translated into English in 1 S.J. (1948-1953) 68, at 72
[373] Kol Ha'am, supra note 52, at 105. In the original Hebrew text the term "Mirror" is translated as "in the light of".
[374] Peretz v. The Local Council of Kfar Shmaryahu, supra note 90, at 204
[375] Israel Film Studios Ltd v. Levi Geri, supra note 90, at 216
[376] E.A. 1/65, Yeredor v. Chairman of the Central Elections Committee for the 6th Knesset, 19(iii) P.D. 365, at 385, 389-90
[377] Bergman v. Minister of Finance, supra note 91, at 18
[378] Amos Shapira, A Proposal for Constitutional Judicial Review in Israel, 11 T.A.Univ.Stud.i.L. (1992) 123
[379] Ronald Dworkin, Taking Rights Seriously (Duckworth 1977) 14, at 39
[380] Lon Fuller, The Law in Quest of Itself (1940) 136
[381] C.A. 723/74, Ha’aretz, Ltd. v. Israel Electric Corporation, translated into English in 9 S.J. (1977-1990) 226
[382] Ibid., at 242
[383] David Kretzmer, Demonstrations and the Law, 19 Isr.L.Rev. (1984) 47, at 64-65; Kretzmer, supra note 29, at 143
[384] H.C. 450/70, Rogozinsky v. State of Israel, 26(i) P.D. 129 (1972); H.C. 142/89, Tnuat Laor v. Speaker of the Knesset, 44(iii) P.D. 529, at 554
[385] Bejerano v. Minister of Police, supra note 89; Sheib v. Minister of Defence, supra note 89
[386] Zeev Segal, Administrative Law, published in Introduction to the Law of Israel (eds. Amos Shapira and Keren C. DeWitt-Arar) (Kluwer Law, Boston, 1995)
[387] Basic Law: Human Dignity and Freedom, supra note 1; Basic Law: Freedom of Occupation, supra note 1
[388] Kol Ha’am case , supra note 52
[389] Section 1A of Basic Law: Human Dignity and Freedom, supra note 1
Section 2 of Basic Law: Freedom of Occupation, supra note 1
[390] Zvi Zeev v. Gubernik, supra note 100, at 72
[391] Kol Ha’am case, supra note 52
[392] Zeev v. Gubernik, supra note 100, at 68
[393] Regulation 48(1) of the Defence Regulations, 1939 states as follows:
"A competent authority, if it appears to that authority to be necessary or expedient so to do in the interests of public safety, defence or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, may take possession of any land, and may five such directions as appear to the competent authority to be necessary or expedient in connection with the taking of possession of that land."
See Defence Regulations, 1939 P.G. No. 914 (26 August 1939) Suppl. III, 659, at 689
[394] The District Court of Tel Aviv exercised at then the powers of the High Court of Justice.
[395] The facts of the case revealed that prior to issuing the requisition order, the petitioner (the landlord) had sought to negotiate a rent agreement with the second respondent (the Director of the Financial and Control Section of the Ministry of the Interior). However, the negotiations were unsuccessful because the Director of the Financial and Control Section of the Ministry of the Interior regarded the amounts requested by the landlord as excessive. Nevertheless the second respond (the Director of the Financial and Control Section of the Ministry of the Interior) used personal connections in order to obtain the apartment.
[396] Section 9 of the Law and Administration Ordinance, 1948, states as follows:
"(a) If the Provisional Council of State deems it expedient to do so, it may declare that a state of emergency exists in the State, and upon such declaration being published in the Official Gazette, the Provisional Government may authorize the Prime Minister or any other Minister to make such emergency regulations as may seem to him expedient in the interests of the defense of the State, public security and the maintenance of supplies and essential services.
(c) An emergency regulation shall expire three months after it is made, unless it is extended, or revoked at an earlier date by an Ordinance of the Provisional Council of State, or revoked by the regulation-making authority."
See Law and Administration Ordinance, 1948, 1 L.S.I.(1948) 7, at 8-9
[397] Zeev v. Gubernik, supra note 100, at 68, 70-71
[398] Justice Smoira stated as follows:
"Section 9 [of the Law and Administration Ordinance, 1948] put an end to the operation of the earlier statutes as a source of power to make regulations in the future, but that source [ i.e. Regulation 48 of the Defence Regulations, 1939 upon which the first respondent (the acting authority) based its decision] as part of the "law in force" in accordance with Section 11 [of the Law and Administration Ordinance, 1948] remained effective." [Emphasis added]
See ibid., at 73
[399] Pnina Lahav argued that behind the concrete conflict between the parties the case dealt with the confrontation between a government committed to utilitarianism and a liberal model of government committed to values such as due process, separation of powers and fundamental freedoms. See in this regard Lahav, Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat’s Legacy, supra note 87, at 229
[400] Zeev v. Gubernik, supra note 100, at 71-72
[401] H.C. 7/48, El-Karbutli v. Minister of Defence, 2 P.D. 5
[402] Defence (Emergency) Regulations, 1945, supra note 63
[403] For more details regarding the issue of the system of military government within Israel from 1948-1966 see infra Chapter D.5.2.3. (The Defence (Emergency) Regulations, 1945 as Legal Basis for the System of Military Government within Israel from 1948-1966)
[404] El-Karbutli, supra note 129, at 15
[405] Ibid., at 13
[406] Shlomo Guberman, Israel’s Supra-Constitution, 2 Isr.L.Rev. (1967) 455, at 457
[407] Kol Ha’am case, supra note 52
[408] David Kretzmer, The Constitutional and Legal Status of Freedom of Speech in Israel, Israeli Reports to the XIII International Congress of Comparative Law (ed. Celia Wasserstein Fassberg) The Harry Sacher Institute for Legislative Research and Comparative Law, Jerusalem 1990, 183, at 192
[409] I will discuss this case in more detail in Chapter F.3.2. (Supreme Court Cases concerning Regulation 19(2) of the Press Ordinance, 1933)
[410] Press Ordinance, 1933, supra note 93, 243-266
[411] Kol Ha’am case, supra note 52, at 90
[412] Ibid., at 115
[413] Id., at 90
[414] Attorney-General v. De Keyser's Royal Hotel, Limited (1920) A.C. 508
[415] Kol Ha’am case, supra note 52, at 97, 98
[416] Abrams et al. v. United States (1919) 40 S.Ct.Rep. 17
[417] Whitney v. People of the State of California (1926) 47 S.Ct. Rep. 641
[418] Dennis et al. v. United States (1951) 71 S.Ct. Rep. 857
[419] Kol Ha’am case, supra note 52, at 96-102
[420] Ibid., at 105
[421] H.C. 72/62, Rufeisen v. Minister of the Interior, translated into English in a Special Volume of S.J. (1962-69) 1, at 22
[422] Israeli Film Studios Ltd. v. Levi Geri, supra note 90, at 216
[423] Peretz v. Local Council of Kfar Shmaryahu, supra note 90, at 195
[424] Yeredor v. Central Elections Committee for the 6th Knesset , supra note 104, at 386
[425] E.A. 2/84, 3/84, Neiman v. Chairman of the Central Elections Committee for the 11th Knesset, translated into English in 8 S.J. (1969-1988) 83, at 158
[426] Guberman, supra note 134, at 458
[427] Declaration of the Establishment of the State of Israel, supra note 7, at 4
[428] Ibid.
[429] For details on this issue see Chapter A.5.4. (The Period from 1940 until the Adoption of the United Nations General Assembly Resolution 181 (II) of 29 November 1947)
[430] For details on this issue see Chapter A.5.5. (The Period after the Adoption of the United Nations General Assembly Resolution 181 (II) of 29 November 1947 until the Signment of Armistice Agreements in 1949)
[431] Melville B. Nimmer, The Uses of Judicial Review in Israel's Quest for a Constitution, 70 Columbia Law Review (1970) 1217, at 1219
[432] The Hebrew term for "People's Council" is "Mo'etzet Ha'Am". It functioned as legislature within the organized Jewish community in Palestine pre-1948 (i.e. the Yishuv). For details see Chapter A.1. (Historical Perspectives regarding the Right to Self-Determination of the Jewish and the Palestinian Arab People - Introduction)
[433] For details on this issue see Chapter A.1. (Introduction)
[434] Proclamation, 14 May 1948, 1 L.S.I.(1948) 6
[435] Law and Administration Ordinance, 1948, supra note 124
[436] Ibid., at 8
[437] Constituent Assembly Elections Ordinance, 1948, 2 L.S.I. (1948/49) 24
[438] Constituent Assembly (Transition) Ordinance, 1949, 2 L.S.I. (1948/49) 81
[439] Ibid.
[440] Id.
[441] Id.
[442] Nimmer, supra note 159, at 1219
[443] Transition Law, 1949, 3 L.S.I. (1949) 3
[444] Knesset is the Hebrew term for "assembly"
[445] Section 1 of the Transition Law, 1949, supra note 171
[446] Nimmer, supra note 159, at 1219
[447] Ibid., at 1220
[448] Harari Resolution, supra note 16. The translation of the Harari Resolution from Hebrew into English is contained in Professor Nimmer's article entitled "The Uses of Judicial Review in Israel's Quest for a Constitution", supra note 159, at 1220
[449] See the basic laws enumerated in this Chapter B., supra notes 19-27
[450] Basic Law: Human Dignity and Freedom, supra note 1; Basic Law: Freedom of Occupation, supra note 1
[451] Gavison, supra note 30, at 152
[452] Claude Klein, A New Era in Israel’s Constitutional Law, 6 Isr.L.Rev. (1971) 376, at 381
[453] Maoz, supra note 85, at 10
[454] See the following speeches of different Knesset Members concerning the enactment of a constitution including a bill of rights: 4 D.K. 714-719 (1 February 1950); 4 D.K. 725-745 (7 February 1950); 4 D.K. 766-784 (13 February 1950); 4 D.K. 794-804 (14 February 1950); 4 D.K. 821-827 (20 February 1950); 5 D.K. 1257-1279 (2 May 1950); 5 D.K. 1306-1332 (8 May 1950); 5 D.K. 1628-1629 (6 June 1950); 5 D.K. 1711-1722 (13 June 1950); 5 D.K. 1741-1743 (14 June 1950)
[455] It should be recalled at this point that in 1949, after the signment of the Armistice Agreements between Israel and the neighboring countries, the state of Israel was established on 72 % of the whole formerly British mandatory Palestine. Within these 1949 Armistice borders remained only 158.000 (!) native Palestinian Arabs.
[456] For more details regarding these debates see also Gavison, supra note 30, at 123-124
[457] Meir Shamgar, On the Written Constitution, 9 Isr.L.Rev. (1974) 467, at 470
- Citation du texte
- Dr. Yvonne Schmidt (Auteur), 2001, Foundations of civil and political rights in Israel and the occupied territories, Munich, GRIN Verlag, https://www.grin.com/document/87704
-
-
-
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X. -
-
Téléchargez vos propres textes! Gagnez de l'argent et un iPhone X.