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

By Hagai El-Ad

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

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

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

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

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

A Prescription for Hypocrisy 

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

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

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

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

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

Casting a Short Shadow

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

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

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

 

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