By Fady Khoury
The High Court of Justice on Thursday handed down its ruling in a petition against the 2010 Termination of Proceedings and Deletion of Records in the Disengagement Plan Law (the Pardon Law), rejecting the petition and upholding the law.
In 2005, then-Prime Minister Ariel Sharon announced Israel’s unilateral disengagement from the Gaza Strip area and Northern Samaria. When time came to execute the disengagement, a settler resistance movement arose, refusing to evacuate the area and reacting violently to the state’s attempts to forcefully implement the plan.
Following these incidents, the state naturally sought to prosecute the lawbreakers. Some 6,000 arrests were made and 600 indictments were filed. Due to the severity of the events, the attorney general formulated a policy according to which proceedings would be terminated against first offenders accused of minor offenses, like illegal gathering, rioting, entry or stay in a closed military area or offenses relating to obstructing police officers’ work and threatening or insulting a public servant – if the suspect confessed and assumed responsibility for the allegations. Additionally, the president of Israel granted individual pardons to an additional 70 defendants.
But the Knesset did not find this sufficient, and passed the Pardon Law in January 2010, exempting from punishment any offenders who were convicted of offenses committed in relation to opposing the disengagement plan, but had not been sentenced for imprisonment. The law also allows, at the offender’s request, for the charges to be dropped and the offenses deleted from any criminal records. It does not apply in cases of serious offenses and in cases heard before the military court.
Several left-wing protestors submitted a petition against the law, requesting the court nullify it. Their main argument was that the law discriminates based on ideology. The law, they argued, treats the disengagement protestors differently than protestors who have been indicted for the same offenses while protesting the occupation. Therefore, the collective pardon granted to the disengagement offenders legitimizes selective enforcement of the criminal law.
Eight out of the nine justices on the panel rejected the petition, after ruling that even though the law violates the equality principle, it does not cross the lines of unconstitutionality. According to the majority decision, the circumstances surrounding the disengagement were unique in nature and traumatic for otherwise law-abiding citizens. It was held that the desire to achieve closure for the people who experienced a personal, religious and ideological crisis is a worthy purpose. Moreover, the court decided that the violation of the equality principle is proportionate. In his dissenting opinion, Justice Salim Joubran held that the law is indeed discriminatory, but also disproportionate. According to Justice Joubran, the Pardon Law’s harm to the equality principle exceeds its actual benefits, making it unconstitutional.
The disengagement plan was indeed a traumatic event, albeit not a on a national scale, as depicted by the High Court and the Knesset. The settlers were uprooted from what they considered their homes. Some of them reacted violently and that can be understood. They felt betrayed and abandoned by the state that had previously encouraged them to settle in the Gaza Strip. Far be it from me to endorse violence – but I can still understand its source in this case. Even if we agree that the settlements are a wrong, we should not ignore the devastating effects of correcting it on the settlers.
Therefore, I sincerely believe that the state should not have prosecuted the anti-disengagement protestors. But the equality principle should not be violated. The Palestinian Bil’in protestors, for instance, are no less traumatized than the uprooted settlers, or than all Palestinians living under occupation, for that matter. The families and friends of those killed in the October 2000 events, during the massive demonstrations at the start of the second Intifada, do not feel less betrayed than those settlers.
According to the same logic, all proceedings against protestors from the Bedouin village of Al-Araqib, which has been demolished numerous times, should be terminated. Furthermore, in preparation for the future, I suggest that no charges be brought against protestors in the expected uprisings against the implementation of the Prawer Plan in the Naqab (Negev), which will uproot tens of thousands of Bedouin.
The traumatic crisis endured by the settlers is not unique in this part of the world. Other groups have suffered and continue to suffer from government policies, without it ever acknowledging their effects.
The principal that the Knesset adopted in the Pardon Law is clear: committing a minor offense while protesting against what may be considered a traumatic life-altering event is understandable, forgivable and should not bare harsh consequences for the person in question. I am all for this approach and therefore instead of calling for the annulment of the Pardon Law, I call for broadening its application, to the less fortunate groups who do not have a strong lobby in the Knesset.
Fady Khoury is a recent graduate of Haifa University Law School