FOUNDATIONS
OF CIVIL AND POLITICAL RIGHTS
IN ISRAEL AND THE OCCUPIED TERRITORIES
DISSERTATION
zur Erlangung des akademischen Grades
Dr.iur. (Doctor iuris)
der Rechtswissenschaftlichen Fakultät der Universität Wien
vorgelegt von
Mag.iur. Yvonne Alexandra Schmidt
Erstbegutachter: O. Univ.-Prof. Dr. Gerhard LUF
Zweitbegutachter: O. Univ.-Prof. Dr. Peter PIELER
Wien, Jänner 2001
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
i
TABLE OF CONTENTS
A
CKNOWLEDGMENTS
...
I
A
BBREVIATIONS
...
II
G
LOSSARY
...
V
P
REFACE
...
IX
INTRODUCTION
...
1
A. HISTORICAL PERSPECTIVES REGARDING THE
RIGHT TO SELF-DETERMINATION OF THE
JEWISH AND THE PALESTINIAN ARAB PEOPLE
..
...
29
1. INTRODUCTION ...
29
2. IDEOLOGY AND DOCTRINES OF THE CONCEPT OF
POLITICAL ZIONISM ...
32
3. SOURCES OF THE CONCEPT OF POLITICAL
ZIONISM ...
38
3.1. T
HE
B
ASLE
P
ROGRAMME
-
D
ECLARED IN
1897
...
38
3.2. T
HE
B
ALFOUR
D
ECLARATION OF
2
N
OVEMBER
1917
...
39
3.3. T
HE
M
ANDATE FOR
P
ALESTINE
-
G
RANTED TO
G
REAT
B
RITAIN IN
1922
...
45
3.3.1. General Remarks ...
45
3.3.2. What is the "Self" of a Nation and Who has the Right to Express its Will? ..
46
3.3.3. US President Woodrow Wilson's "Fourteen Points", 1919 and The Mandate for
Palestine, 1922: Self-Determination For Whom? ...
48
3.4. T
HE
B
ILTMORE
P
ROGRAMME
-
E
STABLISHED IN
1942
...
49
3.5. T
HE
J
ERUSALEM
P
ROGRAMME
-
E
STABLISHED IN
1951
...
50
3.6. R
EVISION OF THE
J
ERUSALEM
P
ROGRAMME IN
1968
...
50
4. ESTABLISHMENT OF "JEWISH NATIONAL
INSTITUTIONS" BY THE ZIONIST MOVEMENT ...
50
4.1. I
NTRODUCTION
...
50
4.1.1. The Fundamental Principle of "Inalienability of Land" ...
52
4.1.2. The Fundamental Principle of "Jewish Labour" ...
52
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
ii
4.1.3. The "Jewish National Institutions" and their Significance for the State of Israel
...
53
4.2. T
HE
W
ORLD
Z
IONIST
O
RGANIZATION
(WZO)
-
E
STABLISHED IN
1897
...
54
4.3. T
HE
J
EWISH
A
GENCY
(JA)
-
E
STABLISHED FORMALLY IN
1922
-
C
ONSTITUTED IN
1929
...
55
4.4. T
HE
J
EWISH
N
ATIONAL
F
UND
(JNF)
-
E
STABLISHED IN
1901
...
57
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 1947 ...
61
5.1. T
HE
P
ERIOD FROM
1880
UNTIL
1919
...
61
5.1.1. The Henry McMahon - Sharif Hussein Correspondence (1915 - 1916) ...
62
5.1.2. The King-Crane Commission - Established in August 1919 ...
65
5.2. T
HE
D
ISTURBANCES IN
P
ALESTINE IN THE
Y
EARS
1920,
1921,
1925
AND
1929
... ...
67
5.2.1. The Shaw Commission - Established in 1929 ...
69
5.2.2. The Hope Simpson Report - Published in October 1930 ...
70
5.2.3. The Passfield White Paper - Published in October 1930 ...
70
5.2.4. The Ramsay MacDonald Letter - Issued in 1931 ...
72
5.3. T
HE
G
ENERAL
S
TRIKE IN
1936
AND THE
O
PEN
R
EBELLION FROM
1936
TO
1939
...
72
5.3.1. The Royal (Peel) Commission - Established in 1936 ...
73
5.3.2. The MacDonald White Paper - Issued in 1939 ...
73
5.4. T
HE
P
ERIOD FROM
1940
UNTIL THE
A
DOPTION OF THE
U
NITED
N
ATIONS
G
ENERAL
A
SSEMBLY
R
ESOLUTION
181
(II)
OF
29
N
OVEMBER
1947
...
75
5.5. T
HE
P
ERIOD AFTER THE
A
DOPTION OF THE
U
NITED
N
ATIONS
G
ENERAL
A
SSEMBLY
R
ESOLUTION
181
(II)
OF
29
N
OVEMBER
1947
UNTIL THE
S
IGNMENT OF
A
RMISTICE
A
GREEMENTS IN
1949
...
77
6. SUMMARY AND CONCLUSIONS ...
86
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
iii
B. ISRAEL'S INITIAL OBLIGATIONS TO ENACT A
CONSTITUTION INCLUDING A BILL OF HUMAN
RIGHTS AND THE ISSUE OF JUDICIAL REVIEW
...
98
1. INTRODUCTION ...
98
2. THE ROLE OF THE ISRAELI SUPREME COURT IN
THE SPHERE OF CIVIL AND POLITICAL RIGHTS
...
107
2.1. G
ENERAL
R
EMARKS
...
107
2.2. T
HE
I
NSTITUTIONAL
O
RGANIZATION OF
I
SRAEL
'
S
J
UDICIAL
S
YSTEM
...
108
2.2.1. General/Civil/Regular Courts of Law ...
108
2.2.2. Tribunals and Authorities Vested with Judicial Powers ...
109
2.3. T
HE
S
UPREME
C
OURT OF
I
SRAEL
...
111
2.3.1. The Jurisdiction of the Supreme Court ...
111
2.3.2. Judicial Activism and Judicial Restraint ...
112
2.3.3. The Normative Status of Human Rights Case Law ...
117
2.3.4. Summary and Conclusions ...
119
3. THE NATURE AND LEGAL STATUS OF THE
DECLARATION OF THE ESTABLISHMENT OF THE
STATE OF ISRAEL, 1948 ...
120
3.1. G
ENERAL
R
EMARKS
...
120
3.2. S
UPREME
C
OURT
J
URISPRUDENCE
...
121
3.2.1. The Declaration of the Establishment of the State of Israel - Considered as
"Political Instrument" ...
121
3.2.1.1. Zvi Zeev v. Gubernik (1948) ...
121
3.2.1.2. El-Karbutli v. Minister of Defence (1948) ...
124
3.2.2. The Declaration of the Establishment of the State of Israel - Considered as
"Instrument of Interpretation" ...
125
3.2.2.1. Kol Ha'am Company Limited v. Minister of Interior (1953) ...
126
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
iv
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
...
130
4.1. T
HE
E
LECTIONS TO THE
C
ONSTITUENT
A
SSEMBLY AND ITS
T
RANSFORMATION INTO
"T
HE
F
IRST
K
NESSET
"
...
130
4.2. T
HE
H
ARARI
R
ESOLUTION
-
A
DOPTED IN
1950
...
133
4.3. A
RGUMENTS
R
AISED
A
GAINST THE
E
NACTMENT OF A
C
ONSTITUTION
INCLUDING A
B
ILL OF
R
IGHTS
...
135
4.3.1. General Remarks ...
135
4.3.2. The View of David Ben Gurion ...
136
4.3.3. The View of the Religious Parties ...
137
4.3.4. Other Arguments Raised Against the Enactment of a Constitution including a
Bill of Human Rights ...
141
4.4. T
HE
P
OWER OF THE
K
NESSET TO
E
NACT A
C
ONSTITUTION
...
141
4.4.1. Background ...
141
4.4.2. The Opinion of Legal Scholars ...
142
4.4.2.1. Professor Melville B. Nimmer's Opinion ...
142
4.4.2.2. Professor Claude Klein's Opinion ...
143
4.4.2.3. Professor Amnon Rubinstein's Opinion ...
144
4.4.2.4. Professor Eliahu Likhovski's Opinion ...
144
4.5. S
UMMARY AND
C
ONCLUSIONS
...
145
5. THE ATTITUDE OF THE ISRAELI SUPREME COURT
TOWARDS JUDICIAL REVIEW OF PRIMARY
LEGISLATION OF THE KNESSET IN HUMAN
RIGHTS CASES ...
146
5.1. B
ACKGROUND
...
146
5.2. I
NITIAL
A
RGUMENTS AND
R
EASONS FOR THE
O
BJECTION TO
J
UDICIAL
R
EVIEW
...
148
5.2.1. The Doctrine of Sovereignty of the Israeli Parliament ...
148
5.2.2. The Principles of Separation of Powers and Democracy ...
150
5.2.2.1. Leon v. Gubernik (1948) ...
150
5.2.2.2. Other Decisions and Arguments of the Supreme Court ...
152
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
v
5.3. F
IRST
S
TEPS TOWARDS
J
UDICIAL
R
EVIEW OVER
P
RIMARY
L
EGISLATION
:
E
NTRENCHED
C
LAUSES IN
B
ASIC
L
AWS
...
153
5.3.1. The Basic Law: The Knesset (1958) ...
153
5.3.2. Bergman v. Minister of Finance (1969) ...
154
6. NORMATIVE RELATIONSHIP BETWEEN BASIC
LAWS AND REGULAR LAWS ...
156
7. THE ENACTMENT OF TWO BASIC LAWS ON
HUMAN RIGHTS IN 1992 AND THEIR IMPACT ON
THE ISRAELI LEGAL SYSTEM ...
157
7.1. G
ENERAL
R
EMARKS
...
157
7.2. T
HE
B
ASIC
L
AW
:
H
UMAN
D
IGNITY AND
F
REEDOM
,
1992
(A
MENDED IN
1994)
161
7.3. T
HE
B
ASIC
L
AW
:
F
REEDOM OF
O
CCUPATION
,
1992
(R
E
-
ENACTED IN
1994)
...
170
8. UNITED MIZRAHI BANK
V
. MIGDAL COOPERATIVE
VILLAGE (1995) ...
171
8.1. G
ENERAL
R
EMARKS
...
171
8.2. T
HE
F
ACTS OF THE
C
ASE
...
173
8.3. T
HE
D
ECISION OF THE
D
ISTRICT
C
OURT
...
174
8.4. T
HE
D
ECISION OF THE
S
UPREME
C
OURT
...
175
8.4.1. The Opinion of Supreme Court President Barak ...
176
8.4.1.1. The Knesset's Authority to Enact a Constitution ...
177
8.4.1.2. Kelsen's Basic Norm or "Grundnorm" Model ...
178
8.4.1.3. Hart's "Rule of Recognition" Model ...
182
8.4.1.4. Dworkin's Empirical Model ...
183
8.4.2. The Opinion of Supreme Court Justice Shamgar ...
184
8.4.3. The Opinion of Supreme Court Justice Cheshin ...
184
8.4.4. The Opinion of Supreme Court Justice Bach ...
186
8.5. T
HE
S
IGNIFICANCE OF THE
U
NITED
M
IZRAHI
B
ANK
C
ASE
...
187
9. CONCLUSIONS AND RECOMMENDATIONS ...
187
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
vi
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
...
194
1. INTRODUCTION ...
194
2. THE RELATIONSHIP BETWEEN STATE AND
RELIGION IN ISRAEL ...
198
2.1. G
ENERAL
R
EMARKS
...
198
2.2. T
HE
O
TTOMAN
M
ILLET
S
YSTEM AND
I
TS
A
DOPTION BY THE
B
RITISH
M
ANDATORY
R
EGIME AND THE
I
SRAELI
G
OVERNMENT
...
202
2.2.1. The Ottoman Period ...
202
2.2.2. The British Mandatory Period ...
203
2.2.3. The Establishment of the State of Israel ...
204
2.3. H
ISTORICAL
B
ACKGROUND OF THE
"S
TATUS
Q
UO
"
A
RRANGEMENT
...
206
2.3.1. The Doctrine of Ultra-Orthodox Judaism and its Original Position towards
Political Zionism ...
207
2.3.2. The Changing Position of Ultra-Orthodox Judaism towards the Concept of
Political Zionism ...
208
2.4. T
HE
P
RESENT
I
MPORTANCE OF THE
"S
TATUS
Q
UO
"
A
RRANGEMENT
...
209
2.5. T
HE
N
ATURE OF
R
ELIGIOUS
L
AW IN
I
SRAEL
'
S
L
EGAL
S
YSTEM
...
211
2.5.1. General Remarks ...
211
2.5.2. The Question of the Legal Nature of Canon Law ...
212
2.5.3. The Nature of Jewish Law ...
215
2.6. H
ISTORICAL
B
ACKGROUND REGARDING THE
P
OSITION OF
J
EWISH
L
AW IN
I
SRAEL
'
S
L
EGAL
S
YSTEM
...
218
2.7. T
HE
O
FFICIAL AND
A
CTUAL
P
OSITION OF
J
EWISH
L
AW IN
I
SRAEL
'
S
L
EGAL
S
YSTEM
...
219
3. THE CONCEPT OF ISRAEL AS A "JEWISH STATE"
AND ITS IMPACT ON THE RIGHT TO EQUALITY
AND MINORITY RIGHTS ...
222
3.1. G
ENERAL
R
EMARKS
...
222
3.2. T
HE
I
MPACT OF THE
"J
EWISH
S
TATE
"
C
ONCEPT ON THE
R
IGHT TO
E
QUALITY
AND
P
ALESTINIAN
A
RAB
M
INORITY
R
IGHTS
...
224
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
vii
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 ...
224
3.2.2. The Flag and Emblem Law, 1949 ...
228
3.2.3. The National Anthem of Israel ...
228
3.2.4. The State Stamp Law, 1949 ...
229
3.2.5. The Days of Rest Ordinance, 1948 ...
229
3.2.6. The Martyrs and Heroes Remembrance Day Law, 1959 ...
230
3.2.7. The Yad Yitzhak Ben-Zvi Law, 1969 and
The Mikve Yisrael Agricultural School Law, 1976 ...
230
3.2.8. The State Education Law, 1953 ...
231
3.2.9. The Broadcasting Authority Law, 1965 ...
233
3.2.10. The Chief Rabbinate of Israel Law, 1980 and
The Kashrut (Prohibition of Deceit) Law, 1983 ...
233
3.2.11. The Foundations of Law Act, 1980 ...
234
3.2.12. Other Legislation ...
237
3.3. T
HE
I
MPACT OF THE
"J
EWISH
S
TATE
"
C
ONCEPT ON
J
URISPRUDENCE
RELATING TO THE
R
IGHT TO
E
QUALITY AND
M
INORITY
R
IGHTS FOR
P
ALESTINIAN
A
RAB
C
ITIZENS IN
I
SRAEL
...
237
3.3.1. Abu-Gosh v. Minister of Education and Culture (1971) ...
238
3.3.2. Watad v. Minister of Finance (1983) ...
238
3.3.3. Adalah & Others v. Minister of Religious Affairs & Others (1998) ...
239
3.3.4. Follow-Up Committee for Arab Education in Israel & Others v. Ministry of
Education & Others (1997) ...
239
4. THE CONCEPT OF ISRAEL AS A "JEWISH STATE"
AND ITS IMPACT ON THE RIGHT TO CITIZENSHIP
AND NATIONALITY ...
241
4.1. G
ENERAL
R
EMARKS
...
241
4.2. T
HE
I
MPACT OF THE
"J
EWISH
S
TATE
"
C
ONCEPT ON
L
EGISLATION RELATING
TO THE
R
IGHT TO
C
ITIZENSHIP AND
N
ATIONALITY
...
243
4.2.1. The Law of Return, 1950 and The Nationality Law, 1952 ...
243
4.2.1.1. Acquiring Citizenship by Return ...
244
4.2.1.2. Acquiring Citizenship by Residence ...
246
4.2.1.3. Acquiring Citizenship by Birth ...
247
4.2.1.4. Acquiring Citizenship by Naturalization ...
247
4.2.2. Conclusions ...
248
4.3. T
HE
I
MPACT OF THE
"J
EWISH
S
TATE
"
C
ONCEPT ON
J
URISPRUDENCE
RELATING TO THE
R
IGHT TO
C
ITIZENSHIP AND
N
ATIONALITY
...
248
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
viii
Al-Jalil v. Minister of Interior (1952) ...
249
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) ..
249
5. THE CONCEPT OF ISRAEL AS A "JEWISH STATE"
AND ITS IMPACT ON THE RIGHT TO ASSOCIATION
...
...
250
5.1. G
ENERAL
R
EMARKS
...
250
5.2. T
HE
I
MPACT OF THE
"J
EWISH
S
TATE
"
C
ONCEPT ON
L
EGISLATION AND
J
URISPRUDENCE RELATING TO THE
R
IGHT TO
A
SSOCIATION
...
254
5.2.1. The Prevention of Terrorism Ordinance, 1948 ...
254
5.2.2. The Penal Law, 1977 ...
259
5.2.3. The Non-Profit Societies Law, 1980 ...
260
5.2.4. The Political Parties Law, 1992 ...
261
5.2.5. The Defence (Emergency) Regulations, 1945 ...
262
5.2.5.1. Jiryis v. District Commissioner of Northern District (1964) ...
262
6. THE CONCEPT OF ISRAEL AS A "JEWISH STATE"
AND ITS IMPACT ON THE RIGHT TO POLITICAL
PARTICIPATION ...
265
6.1. G
ENERAL
R
EMARKS
...
265
6.2. T
HE
I
MPACT OF THE
"J
EWISH
S
TATE
"
C
ONCEPT ON
L
EGISLATION AND
J
URISPRUDENCE RELATING TO THE
R
IGHT TO
P
OLITICAL
P
ARTICIPATION
...
...
268
6.2.1. The Period from 1949 to 1985 ...
268
6.2.1.1. Yeredor v. Central Elections Committee for the 6th Knesset (1965) ...
270
6.2.1.2. Neiman v. Central Elections Committee for the 11th Knesset (1984) ...
274
6.2.2. The Basic Law: The Knesset (Amendment No. 9) (1985) ...
280
6.2.2.1. Ben-Shalom v. Central Election Committee for the 12th Knesset (1988) ...
281
6.2.3. The Political Parties Law, 1992 ...
284
6.2.3.1. Ganem Yaseen v. Yamin Israel (1995) ...
285
7. SUMMARY AND CONCLUSIONS ...
286
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
ix
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
...
288
1. INTRODUCTION ...
288
2. THEORETICAL DISCUSSION OF "NATIONAL
SECURITY" AND "LIBERAL DEMOCRACY" ...
291
3. ISRAEL'S CONCEPT OF "STATE SECURITY" AND
THE QUESTION OF ITS COMPATIBILITY WITH THE
IDEAS OF A "LIBERAL DEMOCRACY AND HUMAN
RIGHTS" ...
298
3.1. I
DEOLOGICAL
F
OUNDATIONS OF
I
SRAEL
'
S
C
ONCEPT OF
"S
TATE
/N
ATIONAL
S
ECURITY
"
...
298
3.2. T
HE
C
ONCEPT OF
B
ALANCING
I
NTERESTS IN
"S
ECURITY
M
ATTERS
"
...
300
3.3. I
SRAEL
'
S
R
ULES OF
E
VIDENCE IN
"S
ECURITY
M
ATTERS
"
...
300
3.4. I
SRAEL
'
S
P
ERMANENT
S
TATE OF
E
MERGENCY
:
L
EGAL
S
OURCES AND
J
USTIFICATIONS
...
303
4.
ISRAEL'S FORMAL "SECURITY" AND
"EMERGENCY" LEGISLATION: LEGAL SOURCES
AND JUSTIFICATIONS ...
306
4.1. B
ACKGROUND
...
306
4.2. B
RITISH
M
ANDATORY
"E
MERGENCY
"
L
EGISLATION
...
307
4.3. I
SRAELI
"S
ECURITY
"
AND
"E
MERGENCY
"
L
EGISLATION
...
308
4.3.1 "Emergency" Legislation Enacted by Israel's Parliament ...
308
4.3.2 "Emergency" Legislation Based on: The Law and Administration Ordinance,
1948 and The new Basic Law: The Government (1992) ...
309
5. THE BRITISH MANDATORY DEFENCE (EMERGENCY)
REGULATIONS, 1945 ...
312
5.1. H
ISTORICAL
B
ACKGROUND AND
N
ORMATIVE
N
ATURE OF THE
B
RITISH
D
EFENCE
(E
MERGENCY
)
R
EGULATIONS
,
1945
...
312
5.2. T
HE
V
ALIDITY AND
S
COPE OF
A
PPLICATION OF THE
B
RITISH
D
EFENCE
(E
MERGENCY
)
R
EGULATIONS
,
1945
WITHIN
I
SRAEL SINCE
1948
...
316
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
x
5.2.1 The Validity of the Defence (Emergency) Regulations, 1945 ...
316
5.2.2. Challenges to the Validity of the Defence (Emergency) Regulations, 1945 ...
...
317
5.2.2.1. Herzl Kook v. Minister of Defence (1948) ...
318
5.2.3. The Defence (Emergency) Regulations, 1945 as Legal Basis for the System of
Military Government within Israel from 1948-1966 ...
321
5.2.3.1. General Overview ...
321
5.2.3.2. The Military Government's Systematic Violation of the Civil and Political Rights
of the Palestinian Arab People (1948-1966) ...
323
5.2.3.3. The Role of the Israeli Supreme Court in the Context of the Military Government
...
325
5.2.3.4. Summary and Conclusions ...
326
5.3. T
HE
V
ALIDITY AND
S
COPE OF
A
PPLICATION OF THE
B
RITISH
D
EFENCE
(E
MERGENCY
)
R
EGULATIONS
,
1945
WITHIN THE
O
CCUPIED
T
ERRITORIES
SINCE
1967
...
327
6. CONCLUSIONS ...
331
7. RECOMMENDATIONS ...
336
E. THE ADMINISTRATIVE, LEGAL AND JUDICIAL
SYSTEM IN THE OCCUPIED TERRITORIES
...
338
1. INTRODUCTION ...
338
2. THE ADMINISTRATIVE SYSTEM IN THE OCCUPIED
TERRITORIES SINCE 1967 ...
345
2.1. T
HE
P
ERIOD FROM
1967
UNTIL
1981
...
345
2.2. T
HE
E
STABLISHMENT OF A
"C
IVIL
A
DMINISTRATION
"
IN
1981
...
347
2.3. I
SRAEL
'
S
U
NDERSTANDING OF
"S
ECURITY
M
ATTERS
"
?
... 349
2.4. T
HE
E
STABLISHMENT OF
J
EWISH
S
ETTLEMENTS IN THE
O
CCUPIED
T
ERRITORIES
...
353
2.4.1. General Remarks ...
353
2.4.2. The Allon Plan and Labor Settlement Plan ...
354
2.4.3. The Gush Emunim Settlement Plan ...
355
2.4.4. The Suburbia Settlement Plans ...
357
2.5. I
SRAEL
'
S
M
ETHODS AND
J
USTIFICATIONS FOR THE
E
XPROPRIATION AND
R
ESTRICTION ON THE
U
SE OF
O
CCUPIED
P
ALESTINIAN
L
AND
...
359
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
xi
2.5.1. General Remarks ...
359
2.5.2. Military Orders and other Normative Sources concerning Expropriations ...
of Land in the West Bank ...
360
2.5.2.1. Declaration of Occupied Land as "Absentees' Property" -
Military Order No. 58, 1967 ...
360
2.5.2.2. "Requisition" of Occupied Land for "Military Purposes" -
Hague Regulations, 1907 ...
361
2.5.2.3. Declaration of Occupied Land as Israeli "State Land" -
Military Order No. 59, 1967 and Military Order No. 291, 1968 ...
362
2.5.2.4. Expropriation of Occupied Land for "Public Purposes" -
Military Order No. 321, 1969 ...
367
2.5.3. Military Orders and other Normative Sources concerning the Restriction ...
on the Use of Land in the West Bank ...
368
2.5.3.1. Declaration of Occupied Land as "Combat Zones" -
Military Order No. 271, 1968 ...
368
2.5.3.2. Declaration of Occupied Land as "Closed Areas" -
Military Order No. 378, 1970 ...
369
2.5.3.3. Declaration of Occupied Land as "Nature Reserves" -
Military Order No. 363, 1969 ...
369
2.5.3.4. Prohibition of Construction on Occupied Land -
Military Order No. 393, 1970 ...
370
2.5.4. Israel's Settlement Policy in Jerusalem ...
370
2.5.5. Settlement and By-Pass Roads in the West Bank ...
376
3. THE LEGAL AND JUDICIAL SYSTEM IN THE
OCCUPIED TERRITORIES SINCE 1967 ...
377
3.1. I
SRAEL
'
S
A
PPROACH TOWARDS THE
A
PPLICATION OF
I
NTERNATIONAL
L
AW IN
THE
O
CCUPIED
T
ERRITORIES
...
377
3.2. L
EGAL
D
UALISMUS AND
A
PARTHEID IN
I
SRAEL AND THE
O
CCUPIED
T
ERRITORIES
...
379
3.3. T
HE
Q
UESTIONABLE
R
OLE OF
I
SRAEL
'
S
S
UPREME
C
OURT
...
385
4. THE IMPACT OF THE OSLO I AND II
AGREEMENTS SIGNED IN 1993 AND 1995 ON THE
OCCUPIED TERRITORIES ...
387
5. CONCLUSIONS ...
390
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
xii
F. THE RIGHT TO FREEDOM OF EXPRESSION,
SPEECH AND THE PRESS
...
392
1. INTRODUCTION ...
392
2. JURISPRUDENCE ...
398
3. LICENSING OF NEWSPAPERS AND THE PRINTING
PRESS ...
402
3.1. S
TATUTORY
P
ROVISIONS
...
402
3.1.1. The Press Ordinance, 1933 ...
403
3.1.2. The Defence (Emergency) Regulations, 1945 ...
407
3.2. S
UPREME
C
OURT
C
ASES CONCERNING
S
ECTION
19(2)
OF THE
P
RESS
O
RDINANCE
,
1933
...
409
3.2.1. Kol Ha'am Company Limited v. Minister of Interior (1953) ...
409
3.2.2. Omar International Inc. NY v. Minister of Interior (1981) ...
415
3.3. S
UPREME
C
OURT
C
ASES CONCERNING
R
EGULATION
94(2)
OF THE
D
EFENCE
(E
MERGENCY
)
R
EGULATIONS
,
1945
...
416
3.3.1. Adoption of a Strong Legal Formalistic and Positivistic Approach ...
416
3.3.2. El-Ard v. District Commissioner (1964) ...
419
3.3.3. Al Assad v. Minister of Interior (1979) ...
420
3.3.4. Makhoul v. Jerusalem District Commissioner (1981) ...
421
4. CENSORSHIP ...
424
4.1. P
HILOSOPHICAL AND
H
ISTORICAL
D
IMENSIONS OF
C
ENSORSHIP
...
424
4.2. S
TATUTORY
P
ROVISIONS FOR
M
ILITARY
C
ENSORSHIP
...
425
4.2.1. The Defence (Emergency) Regulations, 1945 ...
425
4.3. T
HE
C
ENSORSHIP
A
GREEMENT BETWEEN THE
E
DITORS
'
C
OMMITTEE AND THE
I
SRAEL
D
EFENCE
F
ORCES
(IDF)
...
427
4.4. S
UPREME
C
OURT
C
ASES CONCERNING
M
ILITARY
C
ENSORSHIP
...
432
4.4.1. Hadashot v. Minister of Defence (1984) - "The Bus No. 300 Affair" ...
432
4.4.2. Schnitzer v. Chief Military Censor (1988) ...
437
4.5. S
ELF
-C
ENSORSHIP
I
MPOSED BY
N
EWSPAPERS
E
DITORS
...
440
4.6. T
HE
P
RIOR
C
LEARANCE
A
RRANGEMENT
...
442
4
4.6.1. Cohen v. Minister of Defence (1962) ...
443
4.7. F
OREIGN
P
RESS AND
J
OURNALISTS
...
444
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
xiii
5. THE ISRAELI BROADCASTING MEDIA - RADIO AND
TELEVISION ...
445
5.1. S
TATUTORY
P
ROVISIONS
...
445
5.1.1. The Broadcasting Authority Law, 1965 ...
445
5.1.2. The Second Television and Radio Broadcast Authority Law, 1990 ...
446
5.2. S
UPREME
C
OURT
C
ASES CONCERNING
I
SRAEL
'
S
B
ROADCASTING
A
UTHORITY
(IBA)
...
446
5.2.1. Zichroni v. Broadcasting Authority (1982) ...
447
5.2.2. Kahane v. Broadcasting Authority (1985) ...
449
6. CONCLUSIONS ...
454
7. RECOMMENDATIONS ...
454
G. THE RIGHT TO PROPERTY
...
456
1. INTRODUCTION ...
456
2. ISRAEL SINCE 1948 ...
465
2.1. G
ENERAL
R
EMARKS
...
465
2.2. D
ECLARATION OF
P
ALESTINIANS AS
"A
BSENTEES
"
AND
C
ONFISCATING THEIR
L
AND AND
M
OVABLE
P
ROPERTY
...
475
2.2.1. The Emergency Regulations (Absentees' Property), 1948 and The Absentees'
Property Law, 1950 ...
475
2.2.2. Main Features and Institutions Involved in the Context of the Application of
the Absentees' Property Law, 1950 ...
479
2.2.2.1. The Custodianship Council for Absentees' Property ...
479
2.2.2.2. The Development Authority ...
483
2.2.2.3. The Jewish National Fund (Keren Kayemet Le-Israel) ...
485
2.2.3. Jurisprudence regarding "Absentees' Property" Cases ...
487
2.2.4. The Creation of so called "Present Absentees" ...
488
2.2.4.1. Statutory Provisions ...
488
2.2.4.2. Jurisprudence regarding "Present Absentees" ...
489
2.2.5. The Klugman Report - Published in 1992 ...
490
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
xiv
2.3. R
EQUISITION OF
P
RIVATE
L
AND AND
H
OUSES DURING AN
O
FFICIALLY
P
ROCLAIMED
"S
TATE OF
E
MERGENCY
"
FOR THE
P
URPOSES OF
"S
TATE
S
ECURITY
"
AND
"E
SSENTIAL
S
ERVICES
"
...
491
2.3.1. The Emergency Regulations (Requisition of Property), 1948 and The
Emergency Land Requisition (Regulation) Law, 1949 ...
491
2.3.2. Jurisprudence regarding Land Requisition in a "State of Emergency" for the
Purposes of "State Security" ...
493
2.4. D
ECLARATION OF
L
AND AS
"C
LOSED
A
REAS
"
AND THE
C
REATION OF THE SO
CALLED
"U
PROOTED
V
ILLAGES
"
...
494
2.4.1. Regulation 125 of the British Mandatory Defence (Emergency) Regulations,
1945 ...
494
2.4.2. Supreme Court Cases concerning Regulation 125 of the Defence (Emergency)
Regulations, 1945 ...
496
2.4.2.1. Asslan & Others v. Military Governor of Galilee (1951) ...
496
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) ...
500
2.5. D
ECLARATION OF
L
AND AS
"S
ECURITY
Z
ONE
"
AND
C
ONFISCATING THIS
L
AND
...
506
2.5.1. The Emergency Regulations (Security Zones), 1949 ...
506
2.5.2. Supreme Court Cases concerning the Emergency Regulations (Security Zones),
1949 ...
509
2.5.2.1. Daoud & Others v. Minister of Defence & Others - First Case (1951) ...
509
2.5.2.2. Daoud & Others v. Security Zones Appeal Committee, Office of the Military
Governor of the Galilee - Second Case (1951) ...
511
2.5.2.3. Committee of Displaced Persons from Ikrit & Others v. Minister of Defence -
Third Case (1981) ...
513
2.6. D
ECLARATION OF
L
AND AS
"W
ASTE
L
AND
"
AND
C
ONFISCATING THIS
L
AND
..
...
515
2.6.1. The Emergency Regulations (Cultivation of Waste Lands), 1949 ...
515
2.6.2. Supreme Court Cases concerning the Emergency Regulations (Cultivation of
Waste Lands), 1948 ...
517
2.7. L
EGALIZATION OF
A
CTIONS BY
M
EANS OF
"T
RANSFER OF
O
WNERSHIP
"
OF
L
AND
...
518
2.7.1. The Land Acquisition (Validation of Acts And Compensation) Law, 1953 ...
...
518
2.7.2. Supreme Court Cases concerning the Land Acquisition (Validation of Acts
And Compensation) Law, 1953 ...
520
2.8. E
XPROPRIATION OF
L
AND FOR
"P
UBLIC
P
URPOSES
"
...
521
2.8.1. The Land (Acquisition for Public Purposes) Ordinance, 1943 ...
521
2.9. I
SRAEL
'
S
S
YSTEM OF
O
WNERSHIP AND
A
DMINISTRATION OF
L
AND
...
524
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
xv
2.9.1. The Basic Law: Israel's Land (1960) ...
524
2.9.2. The Israel Land Administration Law, 1960 ...
526
2.9.3. The Agricultural Settlement (Restrictions on Use of Agricultural Land and of
Water) Law, 1967 ...
526
2.9.4. The World Zionist Organization (WZO) and Jewish Agency (Status) Law,
1952 ...
527
2.9.4.1. General Remarks ...
527
2.9.4.2. The Covenant between the Israeli Government and the WZO ...
528
2.9.4.3. The Covenant between the Israeli Government and the JA ...
528
2.9.4.4. Ka'adan v. Israel's Land Administration (1995) ...
531
3. SUMMARY AND CONCLUSIONS ...
536
H. SUMMARY AND FINAL CONCLUSIONS ...
540
APPENDICES
...
551
A
PPENDIX
1
Basic Law: Human Dignity and Freedom (1992) ...
551
A
PPENDIX
2
A
Basic Law: Freedom of Occupation (1994) ...
552
A
PPENDIX
2
B
Basic Law: Freedom of Occupation (1992) ...
553
B
IBLIOGRAPHY
...
554
T
ABLE OF
C
ASES
...
567
T
ABLE OF
L
EGISLATION AND
L
EGAL
M
ATERIALS
...
585
D
OCUMENTS
-
P
RESS
R
ELEASES
-
R
EPORTS
...
595
M
APS AND
P
HOTOS
...
605
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
I
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.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
II
ABBREVIATIONS
AAD
Appeal of Administrative Detention
ACRI
Association for Civil Rights in Israel
Add.
Addendum
AHC
Arab
Higher
Committee
A.J.C.L.
American Journal of Comparative Law
ALA
Arab Liberation Army; 5000 volunteers from Iraq, Syria
and Lebanon reached by March 1948 Palestine and were
organized as the ALA under Fawzi al Qawuqji.
A.L.R.
Annotated Law Reports; published in Palestine 1943-
1947
BLccc/No. Military
Court
of
Bethlehem
B'Tselem
The Israeli Information Center for Human Rights in the
Occupied Territories
C.A.
Civil
Appeal
CAT
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
C.O.J.
Collection
of
Judgements
C.P.O.A.
Collection of Proclamations, Orders and Appointments;
it constitutes the body of legislation made by the Israeli
military commander
Cr.A.
Criminal
Appeal
DIP
Department for the Investigation of Police
D.M.I.
Dinei Medinat Israel (Nusach Hadash); revised, updated
and binding Hebrew text of pre-State legislation
promulgated by the Knesset in a New Version; published
in two volumes. See L.S.I. (N.V.)
D.K.
Divrei Ha Knesset; are the Protocols of Knesset
Proceedings and Knesset Speeches
D.P.
Deputy
President
D.R.
Divorce Reports of the Rabbinical Courts
GA
General
Assembly
GH/No.
Military Court of the Golan Heights
GSS
General Security Service; Hebrew terms are Shin Bet or
Shabaq; Israeli Secret Service operating inside the State
of Israel and the Occupied Territories
Harv.L.Rev. Harvard
Law
Review
H.C.
High
Court
H.H.
Hatza'ot Hok; Section of Reshumot containing the
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
III
Legislative Bills (including the Explanatory Notes)
presented to the Knesset
HTA
Hostile
Terrorist
Activities
IAF
Israel
Air
Force
ICCPR
International Covenant on Civil and Political Rights
ICERD
International Convention on the Elimination of All
Forms of Racial Discrimination
ICESCR
International Covenant on Economic, Social and Cultural
Rights
ICRC
International
Committee of the Red Cross
IDF
Israel Defense Force
ILA
Israel Lands Administration
I.L.M.
International
Legal
Materials
I.R. (Iton Rishmi)
Official Gazette during the term of the Provisional
Council of State
Isr.L.Rev.
Israel Law Review; published by the Hebrew University
I.Y.H.R.
Israel Yearbook on Human Rights
IZL (Etzel)
Irgun Zva'i Leumi (National Military Organization)
J.
Justice
JA
Jewish
Agency;
JNF
Jewish National Fund; see KKL
K.A.
Kitvei Amana; Israeli Treaty Documents
KKL
Keren Kayemet Le'Israel
K.T.
Kovetz HaTakanot; Section of Reshumot containing the
Subsidiary Legislation (i.e. Regulations) issued by
Ministries of the Israeli Government -
LHI (Lehi)
Lohamei Herut Yisrael (Freedom Fighters of Israel)
L.P.
Laws
of
Palestine
L.S.I.
Laws of the State of Israel; authorized English translation
of Israeli legislation (S.H.); published by the Ministry of
Justice
L.S.I. (N.V.)
Laws of the State of Israel (New Version); authorized
English translation of the revised text of pre-state
legislation
L. & Soc'y Rev.
Law & Society Review
MK
Member of the Knesset
Misc. App.
Miscellaneous Application
O.G.
Official Gazette; see the explanations given to I.R. (Iton
Rishmi)
P. President
para. Paragraph
P.D.
Piskei Din (Judgements); official publication of the
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
IV
judgements of the Israeli Supreme Court since 1948
P.E.
Pesakim Elyon; is an unofficial publication of
judgements of the Supreme Court and of the District
Courts ("Pesakim Mehoziim").
PFLP
Popular Front for the Liberation of Palestine
P.G.
Palestine Gazette; the Official Gazette of the British
Mandatory Government in Palestine
PICA
Palestine Jewish Colonisation Association
PLO
Palestinian Liberation Organization
PLP
Progressive List for Peace
P.L.R.
Palestine Law Reports; published in Palestine 1920-1947
P.M.
Pesakim Mehoziim; Law Reports of the District Courts
since 1949
R/No.
Military Court of Ramallah
SAO
State Attorney's Office
SC Security
Council
S.C.D.C. Selected
Cases
of the District Court
S.C.J.
Supreme Court Judgements
S.H.
Sefer Ha Hukim; is a Section of Reshumot containing the
Principal Legislation promulgated by the Knesset
Sh/No.
Military Court of Shechem (Nablus)
S.J.
Selected Judgements of the Supreme Court of Israel;
official English translation of the judgments of the
Supreme Court
S.J.M.C.
Selected Judgements of Military Courts
SLA
South Lebanese Army; Lebanese armed militia allied to
Israel
SMC
Supreme Muslim Council
S.T. Special
Tribunal
T.A.Univ.Stud.i.L.
Tel Aviv University Studies in Law
UN United
Nations
UNCC
United Nations Compensation Commission
UNCCP
United Nations Conciliation Commission for Palestine
UNCP
United Nations Commission on Palestine
UNDRP
United Nations Disaster Relief Project
UNHCR
United Nations High Commissioner for Refugees
UNIFIL
United Nations Interim Force in Lebanon
UNRPR
United Nations Relief for Palestine Refugees
UNRWA
United Nations Relief and Works Agency for Palestine
Refugees in the Middle East
UNSCOP
United Nations Special Committee on Palestine
WZO World
Zionist
Organization
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
V
Y.P.
Yalkut Ha Pirsumim; is a Section of Reshumot
containing the Government Notices
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
VI
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
VII
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
VIII
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).
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
IX
PREFACE
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 background and starting point for my examination will be Israel's domestic
laws and constitutional framework, Israel's Supreme Court jurisprudence as well as
international human rights and humanitarian law.
In a comprehensive Introduction I will first of all outline the most important
normative and jurisprudential concepts, aspects and problems which exist within
Israel's legal system concerning civil and political rights and freedoms, and which
will be discussed in the course of this work. In this Introduction I will also give a
short overview of the historical and sociopolitical background of Israel's legal
system, constitutional framework and approach towards judicial review in order to
prepare the reader for these and other important related issues that will be analyzed
in the course of this work.
In Chapter A, I will discuss the most important historical aspects and facts
regarding the right to self-determination of the Jewish and the Palestinian Arab
people, including the events that lead to the establishment of the state of Israel in
Palestine in May 1948. I will analyze in short the history, the basic ideology and the
sources of the concept of political Zionism emerging at the end of the 19
th
century,
forming the background for the idea of self-determination of the Jewish people and
the decision to establish a "national home" for the Jewish people in Palestine and
culminating in the establishment of the state of Israel in 1948. Such an analysis of
the concept of political Zionism is necessary since it is this political concept that
lays at the very foundations of Israel's legal system and jurisprudence regarding civil
and political rights.
In Chapter B then I will deal at great length with the above mentioned
conceptional issues regarding Israel's constitutional framework and approach
towards judicial review - as far as these issues are relevant for the discussion of civil
and political rights. I will cover the period since the establishment of the state of
Israel in 1948 up until the recent developments that took place with the enactment of
two basic laws on human rights and freedoms in 1992, including some subsequent
jurisprudence relating to these laws.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
X
In the next Chapter C, I shall give an overview over the concept of the state of
Israel as a "Jewish state" and its impact on the normative sources and jurisprudential
concepts regarding the right to equality, the right to property, the right to citizenship,
the right to form associations, and the right to vote and to be voted.
In Chapter D then I will analyze one of the most significant aspects regarding
civil and political rights and freedoms in Israel, namely the existence of a permanent
state of emergency which is in force since Israel's inception in 1948 and whose
compatibility with the idea of a liberal democracy based on human rights and
freedoms is highly questionable.
The purpose of Chapter E is to describe in short the legal, judicial and
administrative system that emerged in the territories occupied by Israel in the course
of the war in June 1967 as well as the legal changes that took place in the context of
the signment of the Oslo Agreements.
The whole Chapter F is devoted to the right to freedom of expression, speech and
the press, since a vast number of important and still relevant Supreme Court
jurisprudence has been developed in the context of this right.
Chapter G deals exclusively with the normative standards and jurisprudential
concepts of the right to property - especially the rights to land - since it is mainly the
violation of this fundamental right by the Israeli government towards the Palestinian
Arab people that lays at the very foundation of the conflict between the
Palestinian/Arab and the Israeli/Jewish people.
This work ends with a summary and final conclusions.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
1
INTRODUCTION
(1) The purpose of this work is to provide an insight into the basic
jurisprudential concepts, normative sources, institutions and processes upon
which civil and political rights in Israel and the Occupied Territories are founded.
1. Nature and Sources of Israel's Legal System
(2) In order to understand the very complex and highly problematic situation
concerning the subject under review it is appropriate to make a short analysis of
the historical and sociopolitical background of the state of Israel, the nature and
the sources of the legal system as well as Israel's constitutional policy towards
civil and political rights and freedoms.
(a) The legal system of a state always displays cultural and religious traditions,
economic, social and political credos, tendencies to abstract or concrete thinking
as well as the community's approach and commitment towards concepts like
individual human rights and freedoms, social welfare, the rule of law, separation
of powers, administrative legality and the democratic nature of the whole regime.
(b) The legal system of Israel reflects also unresolved communal conflicts and
ambiguities of the state, difficulties connected with the process of nation-
building,
1
dilemmas concerning the ethnic and cultural identity of the population,
uncertainties in regard to the protection of minorities, ideological contradictions
resulting from the relationship between religion and state and from issues like
national security and individual physical survival.
1.1. Ottoman Law - British Colonial and Common Law -
Israeli Law
(3) Due to the fact that so many different historical, cultural and systemic
factors and influences contributed to the development of Israel's legal system, it
is not easy to say to which family or tradition this legal order belongs and which
jurisprudential philosophy really has been laid down.
1
The process of nation-building has not yet ended in Israel due to the facts of a lack of
geographical borders, the absence of a clear national consensus about the nature of the
state and the constitution. These facts have far-reaching consequences for the protection
of human rights and freedoms.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
2
(a) 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.
2
(b) After initial links to the Ottoman law, there are long-lasting, deep roots to
British common law. During the Mandate in Palestine the law was "Anglicized"
through legislation enacted in Palestine.
3
(c) Following the establishment of the state of Israel in Palestine on 14 May
1948 - an event which lives on in the Palestinian memory as al-Nakba (the
Catastrophe) - a large number of British mandatory legislation was absorbed
4
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
5
- which empowers military
commanders as well as the entirely executive branch of the government to
impose severe restrictions on fundamental rights and freedoms.
As I will show in the course of this work, many areas, such as personal
freedom, freedom of speech and the right of association and assembly are -
despite the enactment of two basic laws on human rights in 1992 - still regulated
mainly by British colonial legislation that was never revoked after the
establishment of the state of Israel.
2
Mandate for Palestine, 24 July 1922, entered in force on 29 September 1922, British
White Paper, Cmd. 1785, published in The Middle East and North Africa 1980/1981 (28
th
Edition, Europa Publications Limited 1981) at 66, 67; Daniel Friedmann, The Effect of
Foreign Law on the Law of Israel: Remnants of the Ottoman Period, 10 Isr.L.Rev. (1975)
192, at 193, 194, 196
3
Daniel Friedmann, Infusion of the Common law into the Legal System of Israel, 10
Isr.L.Rev. (1975) 324. The process of Anglicization took place by means of statutes
based on English legislation or original codifications of the common law. Another
important way to implement Common law was by virtue of Article 46 of the Palestine
Order-in-Council, 1922, Official Gazette of the Government of Palestine, 1 September
1922. Article 46 provided for the adoption of the substance of the common law and the
doctrines of equity in force in England insofar as there were lacunae in the local law, and
as the circumstances of Palestine permit. Due to the fact that many leading judges in
Palestine were British (the Chief Justice of the Supreme Court was always a British
jurist), the courts gave broad interpretation to Article 46 of the Palestine Order-in-
Council, leading to a clear distance from the relevant Ottoman legislation. See Yoram
Shachar, History and Sources of Israeli Law, published in Introduction to the Law of
Israel (edited by A. Shapira and c. De-Witt, 1995) 1, at 6; Allen Zysblat, The System of
Government, published in Public Law in Israel (edited by I. Zamir and A. Zysblat, 1996)
1, at 2
4
By virtue of Section 11 of the Law and Administration Ordinance, 1948, 1 L.S.I. (1948) 7
5
Defence (Emergency) Regulations, 1945, P.G. No.1442 (27 September 1945) Suppl. II, at
1055
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
3
(d) Additionally, the Knesset (the Israeli parliament) enacted its own security
legislation which is often by itself undemocratic and certainly constitutes severe
restrictions upon the freedoms and rights of minorities and the individual.
6
(e) Alongside this formal British and Israeli security legislation, in 1987 a
Commission of Inquiry headed by former Supreme Court President Justice
Moshe Landau (hereinafter: Landau Commission) was set up and officially
granted to the General Security Service (GSS)
7
"special security powers", i.e. the
license "to use a moderate measure of physical pressure" in interrogations of
suspects in order to obtain information "needed to protect the security of the state
and its citizens."
8
(4) Due to the fact that - since the establishment of the state of Israel in
Palestine in 1948 - a permanent state of emergency is in force, the Israeli
government is always formally entitled to apply the inherited British mandatory
security legislation as well as the own, by the Israeli parliament enacted
emergency regulations.
The most important aspects to be discussed in that context is the general
definition of the term "state or public security", the scope of persons who benefit
from this security and the manner in which a state applies this concept in order to
justify the suspension of other values.
It must be stressed at this point that what constitutes for one group of persons
"security" (i.e. the Jewish/Israeli population) often means for another group of
persons (i.e. the Palestinian Arab population) severe transgressions of their rights
and fundamental freedoms.
Numerous Supreme Court judgments discussed in the course of this work will
show that such severe transgressions excused in the name of "state or public
security reasons" mainly concern the Palestinian Arab people living in Israel and
the Occupied Territories.
6
See for example: Emergency Regulations (Foreign Travel), 1948, 2 L.S.I. (1948) 179;
Emergency Regulations (Security Zones), 1949, 3 L.S.I. (1949) 57; Emergency Land
Requisition (Regulation) Law, 1949, 4 L.S.I. (1950/51) 3; Emergency Powers (Detention)
(Amendment) Law, 1980, 34 L.S.I. (1980) 157
7
The Hebrew term for the General Security Service (GSS) is "Shin Bet", which is the
secret service operating within the state of Israel and the Occupied Territories. The
"Mossad" in contrast is the secret service responsible for espionage, intelligence gathering
and political covert operations in foreign countries. See Menachem Hofnung, Democracy,
Law and National Security in Israel (Dartmouth Publishing Company Limited, 1996) at
193
8
Landau Commission Report, Report of the Commission of Inquiry into the Methods of
Investigation of the General Security Service Regarding Hostile Terrorist Activity
(Excerpts from the English translation published by the Government Press Office in
October, 1987 of Part I of the Commission Report ), 23 Isr.L.Rev. (1989) 146
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
4
1.2. American Law - Canadian Law - Continental European
Law
(5) Returning now to the issue of sources of Israel's legal order concerning
human rights and freedoms, it can be observed that despite strong roots to
English common law, Israel's legal system as a whole has been moving towards
American law and since several years even more and more towards continental
European law.
(a) In many decisions concerning civil and political rights and liberties, one
can find the big influence of American case law and American legal literature
and despite the fact that American cases do not serve as a formal source of law in
Israel, one may say that "liberation" from English case-law was achieved with
American support. However, with regard to the transplantation of American legal
sources concerning human rights and freedoms to the Israeli legal system it must
be said that Israel sometimes forgets that the American legal order completely
differs from that in Israel. First of all America has a constitution and a
constitutional court, but Israel has not. Second America is a federal state while
Israel is not.
(b) An interesting aspect concerning the above mentioned influence of
continental European law is the fact that it is not French law - like during the
Ottoman period - that mainly serves as normative and spiritual source but rather
German law. In many decisions concerning human rights and freedoms several
judges - especially the former Supreme Court President, Meir Shamgar, but also
the current President of this Court, Aharon Barak, as well as the Justices Haim
Cohn and Yoel Sussman - base their arguments on the German Constitution and
on decisions of the German Constitutional Court.
(c) To mention among the influences upon Israel's legal system regarding
human rights and freedoms is also the adoption of principles of the 1982
Canadian Charter of Rights and Freedoms as model for the interpretation of two
new basic laws relating to fundamental freedoms, enacted in Israel in 1992.
9
9
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) at 154-157
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
5
1.3. Religious Law
(6) An important structural element of Israel's legal order is the fact that there
is no system of separation between state and religion in the sense practiced in the
USA, France and other western countries.
(a) 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 duality means that in matters of personal status - such as birth, marriage,
divorce, custody of children, adoption, burial and inheritance - the law of the
various religious-ethnic-national communities - Jewish, Moslem, Druze and
Christian - is applied by the different religious courts. There is also no civil
marriage in Israel, and people with different religions have great difficulties to
get married or divorced within the state of Israel.
10
(b) Among the different religious laws, Jewish law has an outstanding
significant position in Israel's legal system since it serves as a source of
inspiration and interpretation to the legislature and the courts. When the court is
faced with a problem that has no answer in statutory or case law and cannot be
solved by way of analogy, the courts must resolve that problem by reference to
the principles of Jewish heritage.
11
Important to mention in that context is the fact that - since the establishment of
the state of Israel and especially in the last 20 years - the influence of Jewish law
and heritage upon Israel's legal order has gradually grown.
(c) The duality of secular and religious law contributes to severe tensions
between the different Western ideas, aspects and traditions, such as liberalism,
secularism, democracy and human rights, and the special status of religious law
within the whole regime. It leads to a permanent legal, political and social
conflict about fundamental principles and values of the state.
(d) The specific influence of Jewish law and heritage upon Israel's legal order
as a whole has especially discriminatory effect for the non-Jewish population, i.e.
mainly the Palestinian Arab people.
(7) The nature of Israel's legal order has been described as part of the Western
legal culture - similar to the common law system and influenced by the Romano-
German families - but with an independent and unique system due to the
particular status of religious law. Supreme Court President Aharon Barak has
10
Ariel Rosen-Zvi, Family and Inheritance Law, published in Introduction to the Law of
Israel (edited by Amos Shapira and Keren C. DeWitt-Arar, Kluwer Law International,
1995) 75-79
11
Foundations of Law Act, 1980, 34 L.S.I. (1979/80) 181
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
6
characterized Israel's legal system as mixed jurisdiction similar to that of South
Africa, Sri Lanka or Cyprus.
12
1.4. The Occupied Territories
(8) As I indicated in the title of this work, this study will also include
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.
13
(a) In order to place the jurisprudence of the Supreme Court cases related to
the Occupied Territories in a legal framework I will therefore briefly delineate
the legal regimes which emerged in the Occupied Territories since the June 1967
war. Important to mention at this point is the fact that in the context of the
signment of the Declaration of Principles on Interim Self-Governing
Arrangements of 13 September 1993,
14
the Israeli-Palestinian Interim Agreement
on the West Bank and Gaza Strip of 25 September 1995
15
and other documents
several important legal changes took place in the Occupied Territories. A
detailed discussion of these more recent developments lays, however, outside the
scope of this work.
12
Aharon Barak, The Israeli Legal System is as Solid as a Rock, 17 Justice (1998) 3, at 4.
Barak, The Tradition and Culture of the Israeli Legal System, published in European
Legal Traditions and Israel, Essays on Legal History, Civil Law and Codification,
European Law, Israeli Law (edited by Professor Alfredo Mordechai Rabello, Hebrew
University, 1994) 473, at 489-491
13
The term "Occupied Territories" refers to the Sinai Peninsula, the Gaza Strip, the Golan
Hights, the West Bank of the Jordan River including the area of East Jerusalem. The term
"Occupied Territories" is not the recognized legal usage, used by the Israeli government.
The Israeli official terms for these territories are "Areas Administered by Israel" or
"Administered Territories." The West Bank is officially called in Israel also "Judea and
Samaria" corresponding to the biblical terms for this area. These Israeli official terms will
be used in this work as appearing in quoted texts or in formal titles. This work will also
use the terms "Occupied Territories," "Military Government," "Occupying Power," and
"Occupant" as they are normally used in international law. For more details about the
official Israeli position regarding the legal status of the Occupied Territories, see David
Yahav (ed.), Israel, The "Intifada" And The Rule Of Law (Israel Ministry Of Defence
Publications, Israel 1993) at 21-25
14
Declaration of Principles on Interim Self-Government Arrangements, 13 September 1993
(The DOP), reprinted in Raja Shehadeh, From Occupation to Interim Accords: Israel and
the Palestinian Territories (published by CIMEL and Kluwer Law International) 1997,
Appendix 6 [also referred to as Oslo I Agreement]
15
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 25
September 1995, reprinted in Raja Shehadeh, From Occupation to Interim Accords: Israel
and the Palestinian Territories (published by CIMEL and Kluwer Law International)
1997, Appendix 7 [also referred to as Oslo II Agreement]
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
7
(b) Despite the fact that according to international law the legal status of the
Occupied Territories
16
is different from that in Israel within the Green Line, the
laws and Supreme Court judgments regarding human rights and freedoms in
these territories should - according to my opinion - not be considered as
disconnected from Israel itself.
(c) The reason which supports this approach is that over the years the legal
borders separating Israel proper from the Occupied Territories have gradually
been blurred as a consequence of the policy carried out by the Israeli
government.
17
This policy - which at the time being has indeed achieved its goal
18
- always
was - and - in spite of the peace process started in October 1991 in Madrid - still
is
19
directed at creating "facts" on the ground and at changing the demographic
realities in the region through the establishment of civilian settlements and the
transfer of population from Israel into the Occupied Territories.
(d) The result of this process was a fundamental legal change in the Occupied
Territories with the emergence of two different legal and judicial systems applied
on two distinct ethnic and religious groups - the Jewish and Palestinian Arab
people - which are actually living on the same territory. This state of affairs -
16
The West Bank and the Gaza Strip were since 1967 ruled under a regime of belligerent
occupation. The Sinai Peninsula was also subjected to a regime of belligerent occupation
- until Israel withdrew from this area in 1979 following the peace with Egypt. East
Jerusalem and the Golan Heights were since 1967 de facto annexed by Israel. With the
signment of the Oslo Agreements in 1993 and 1995, three categories of Areas - namely
A, B, C - with different jurisdictions have been established in the West Bank and the
Gaza Strip. Only Area A is under the full control of the Palestinian authority, but the
Areas B and C are still subject to the law of belligerent occupation.
17
Amnon Rubinstein, The Changing Status of the "Territories" (West Bank and Gaza):
From Escrow to Legal Mongrel, 8 T.A.Univ.Stud.i.L. (1988) 59
18
See David Kretzmer, Domestic Politics, Law and the Peace Process: A View from Israel,
published in The Arab-Israeli Accords: Legal Perspectives (1996) 81, at 86
19
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); 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. Case Study of al Issawiya
Village, Jerusalem, June 1995; 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)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
8
which affected in the past every aspect of life - definitely constitutes an
infringement of the internationally recognized right of equality before the law.
(e) According to my point of view any discussion about the foundations of
civil and political rights in Israel's legal system may not disregard the very fact of
occupation which took place more than 33 years ago and which was kept alive by
nothing and nobody else than the political, judicial and administrative apparatus
of the state of Israel itself.
1.5. Israel's Constitutional Framework
(9) Very important for the whole discussion about the foundations of civil and
political rights is the fact that Israel lacks a formal written constitution with
normative supremacy in relation to ordinary legislation.
20
(a) A promise to establish a bi-national state and to enact a democratic
constitution was the first time expressed in the UN-General Assembly Resolution
181 (II) of 29 November 1947
21
and also appears in the Declaration of the
Establishment of the State of Israel of 14 May 1948.
22
(b) However, instead of the adoption of such a formal document, Israel 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. Such basic laws, covering the institutional
aspects of Israel's constitutional system have indeed been enacted, but - with the
exception of a few entrenched provisions - these laws do not have the force of a
superior law which was to control ordinary legislation.
23
20
Moshe Landau, I do not believe in Judicial Activism, 16 Justice (1998) 3, at 4; Haim
Cohn, The Time Has Come to Write a Constitution, 16 Justice (1998) 10, at 11, 12; Meir
Shamgar, The High Court of Justice is Important for all the People in the Country, 16
Justice (1998) 17, at 20; Yaffa Zilbershatz, Highlighting Constitutional Changes in the
Israeli Legal System, 7 Justice (1995) 28. Regarding the question whether Israel has a
rigid Constitution on the American model the present Supreme Court President Aharon
Barak has a different view than the above cited writers. See C.A. 6821/93, 1908/94,
3363/94 United Mizrachi Bank v. Migdal Cooperative Village, for a summary and
extracts in English from the judgment see 31 Isr.L.Rev. (1997) 764. For more details on
Israel's obligations since the establishment of the state to enact a constitution, see infra
Chapter B. (Israel's Initial Obligations to Enact a Constitution including a Bill of Human
Rights and the Issue of Judicial Review)
21
United Nations General Assembly Resolution 181 (II) on the Future Government of
Palestine, 29 November 1947 [Partition Resolution] UN document A/Res/181 (II) (A+B).
The Jewish community of Palestine accepted the Partition Resolution. For more details on
this issue see infra Chapter A. (Historical Perspectives regarding the Right to Self-
Determination of the Jewish and Palestinian Arab People)
22
Declaration of the Establishment of the State of Israel, 14 May 1948, 1 L.S.I. (1948) 3
23
Landau, supra note 20, at 4; Cohn, supra note 20, at 11; Zilbershatz, supra note 20
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
9
(c) Until the enactment of two - partly entrenched - basic laws on civil rights
in 1992, there was also no bill of rights in Israel.
24
Prior to the enactment of these two basic laws on human rights, the task of
protection of human rights and freedoms was mainly entrusted to the Supreme
Court of Israel, sitting as a High Court of Justice. This fact involves the crucial
question if the principle of separation of powers, as requested for democracies,
really exists in Israel.
1.6. Israel's Approach towards Judicial Review
(10) The significance of Israel's constitutional framework was - with a few
exceptional cases - the long time well-accepted and dominant principle that
primary legislation of the Knesset is not subject to judicial review.
Only in limited way there existed judicial review of quasi-judicial and
administrative decisions of the Knesset.
(a) With the enactment of the above mentioned new basic laws on human
rights the Supreme Court is now given additional power to review the
constitutionality of primary legislation.
25
(b) A further step towards recognition of judicial review of primary legislation
repugnant to the two basic laws on human rights was made by a decision of the
Supreme Court in 1995.
26
(c) However, despite the existence of the new basic laws on human rights and
the subsequently developed jurisprudence, the main issue now still centers
around the way of interpretation and application of these laws in reality.
(d) The crucial question to be answered in the future is, if the said new basic
laws on human rights only exist of empty words or if they are applied by the
courts in a way to really accomplish their aim - namely to protect human rights
and freedoms in a substantive way.
(11) In contrast to the long time practiced reluctance of the Supreme Court to
review primary legislation, the Supreme Court of Israel has - on the other hand -
elaborated a system of judicial review in regard to many - but not all - activities
of the executive branch of government.
24
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, Clarendon Press, Oxford, 1996) 141
25
Meir Shamgar, Judicial Review of Knesset Decisions by the High Court of Justice, 28
Isr.L.Rev. (1994) 43, at 49-56
26
The
Mizrahi Bank case, supra note 20
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
10
(a) Until the beginning of 1980 the Supreme Court strictly followed the
judicial policy of separation between "security" authorities and other "regular"
administrative authorities, and exercised strict self-restraint in reviewing the
substantive grounds of security related cases, despite the legal and moral
considerations often arising in connection with these cases.
27
Thus the Supreme Court was quite active in reviewing violation of
fundamental rights and freedoms by the "regular" administrative authorities, but
exercised only minimal judicial review over the executive power of the so called
"security" authorities.
28
(b) An indication for the adoption of a new judicial policy of judicial review
might be seen in the - since 1988 - shown readiness of the Supreme Court to
examine not only procedural and formal requirements, such as bad faith or
irrelevant considerations but also the merits and the reasonableness of every
administrative decision, even when the authority in question is a "security"
authority acting out of security considerations.
29
(c) Nevertheless, it must be stressed at this point that the Supreme Court of
Israel has been overly protective of the military government's position in the
Occupied Territories.
This is revealed by the fact that the majority of over 500 petitions that were
submitted to the Supreme Court by Palestinian Arab petitioners from the
Occupied Territories were decided in favor of the considerations of the military
government,
30
with the result of denying and violating mainly the basic rights
and freedoms of the Palestinian Arab people living in these areas.
27
For a discussion of the approach of the Supreme Court towards the executive power of
security authorities see Baruch Bracha, Restriction of Personal Freedom Without Due
Process of Law According to the Defence (Emergency) Regulations, 1945, 8 I.Y.H.R.
(1978) 296, at 309-317; Baruch Bracha, Judicial Review of Security Powers in Israel: A
New Policy of the Courts, Stanford Journal of International Law (1991) 39, at 40-41
28
The term "security authorities" includes the two Israeli secret services, i.e. the General
Security Service (GSS) (Hebrew "Shin Bet") and the "Mossad"; the Police, the Minister
of Defence; the Chief of Staff and the military authorities of the Israel Defence Force
(IDF). For details on this issue see Hofnung, Democracy, Law and National Security in
Israel, supra note 7, at 188-197; Bracha, Judicial Review of Security Powers in Israel,
supra note 27, at 45-47
29
H.C.
680/88,
Schnitzer v. Chief Military Censor, translated into English in 9 S.J. (1977-
1990) 77
30
From 1967 until 1994 only about 20 cases relating to the Occupied Territories were
decided in favor of the petitioners.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
11
1.7. The Declaration of the Establishment of the State of
Israel of 1948
(12) One of the most important documents of Israel's constitutional framework
is the Declaration of the Establishment of the State of Israel of 14 May 1948 -
commonly referred to as Declaration of Independence.
31
(a) Until 1992, this Declaration was never recognized as the formal
constitution of the state of Israel but rather served as an interpretative instrument
that expresses the accepted fundamental values of the whole legal system in
Israel.
In the past the Supreme Court held that the principles set down in the
Declaration shall guide the legislature and the executive branch as well.
32
(b) However, with the enactment of the two new basic laws on human rights in
1992, the Declaration of the Establishment of the State of Israel was given
special - and according to my opinion even constitutional - status.
(c) The Declaration contains three statements that are central in analyzing the
human rights situation in Israel:
First, the state was - "by virtue of the natural and historical right of the Jewish
people and the Resolution of the United Nations General Assembly - declared to
be a Jewish state in Eretz Israel" that would open its doors to every Jew and grant
the Jewish people the status of a nation with equal rights among the family of
nations.
33
At the same time, Israel was established on the basis of a democratic concept,
since the state committed itself "to foster the development of the country for the
benefit of all its inhabitants, that it will be based on freedom, justice and peace as
envisaged by the prophets of Israel and that it will ensure complete equality of
social and political rights to all its inhabitants, irrespective of race, religion and
sex."
34
And finally the Declaration "appeals to the Arab inhabitants of the state of
Israel to preserve peace and to participate in the building of the state on the basis
31
The formal title of the "Declaration of Independence" is Declaration of the Establishment
of the State of Israel, supra note 22, at 4
32
H.C.
10/48, Zeev v. Gubernik, translated into English in 1 S.J. (1948-1953) 68, at 71-72;
H.C. 87/53, Kol Ha'am Company Ltd. v. Minister of Interior, translated into English in 1
S.J. (1948-1953) 90; 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 150,
164
33
Declaration of the Establishment of the State of Israel, 1948, supra note 22, at 4
34
However, it must be said that the word "Democracy" has not been explicitly used in the
Declaration of the Establishment of the State of Israel.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
12
of full and equal citizenship and due representation in all its provisional and
permanent institutions."
35
(d) These three above mentioned statements form the background and starting
point for the crucial question, if the concept of Israel as a Jewish state and a
democracy can be considered to be truthful or fictional, and if in spite of the
commitment made in the Declaration to maintain equality, Israel really
adequately managed to cope with the implications of minority rights.
(13) In the course of this work I will show that the strong pronunciation of the
Jewish character of the state of Israel has in many fields discriminatory effect to
the non-Jewish population, i.e. mainly the Palestinian Arab people, which is not
recognized as a minority by the government.
(a) I will demonstrate that the Palestinian Arab citizens of the state of Israel
are not full citizens, since the state defines itself as the state of the Jewish people
- rather than the state of all its citizens - and since the Palestinian Arab citizens
are not authorized to decide in matters relating to the security-concept of the state
and its ideological direction.
(b) I will also show that - although the Jewish and Palestinian Arab population
is formally equal before the law - different normative and interpretative standards
are applied on both groups.
This basic approach underlies Israel's legal, judicial and socio-political system
as a whole and must therefore be considered as systematically applied policy of
discrimination.
1.8. The Enactment of Two Basic Laws on Human Rights in
1992
(14) Furthermore, I will show that - despite the enactment of the two
mentioned basic laws on human rights in 1992 - the discriminatory situation and
its underlying conditions did not really change.
I will demonstrate that these two basic laws resulted until now in an almost
empty attempt towards a real democratization of Israel's legal order as a whole.
(a) One main reason for this state of affairs is the fact that the object of the two
basic laws on human rights is "to entrench the values of the state of Israel as a
Jewish and democratic state in a Basic Law."
With this clause not only the democratic values of the state of Israel were
given constitutional status but also the Jewish values, which include not only
Jewish heritage and Jewish law but also Zionist values.
35
Supra note 22, at 5
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
13
As I will show in the course of this work, in employing the Jewish values
which also include the Zionist values, the democratic values of the state may
easily and always be suspended.
(b) Another essential reason lays in the fact that the Basic Law: Human
Dignity and Freedom explicitly determines that any law which existed prior to
the enactment of the Basic Law shall not be affected.
That means, all the legal instruments that were enacted before the Basic Law:
Human Dignity and Freedom and that were never declared invalid remain
automatically and totally unchanged in force, despite the fact that they often
constitute unjustified and severe infringements of human rights, a breach of
international law and universally recognized principles of law.
36
Important to mention is the fact that, according to Israel's rules of
interpretation, Israel's inherited and enacted legislation must be "interpreted in
harmony with the new legal environment and normative umbrella which has
been developed since the establishment of the state of Israel, and which consists
not only of the immediate legal context, but also of accepted principles, basic
aims and fundamental criteria which derive from the sources of social
consciousness of the nation within which the judges live."
37
That means in other
words:
All the laws and regulations, that have been enacted over the decades and that
were never declared invalid, but express the above mentioned "principles, basic
aims and fundamental criteria" which are accepted by the Israeli society and
which derive from the sources of Israel's social consciousness - form "the new
legal environment or normative umbrella over all legislation" - in spite of the fact
that such legal instruments are often illegal, immoral, even a gross violation of
international law and universally recognized principles of law and therefore
unacceptable.
In accordance with this line of interpretation many totally illegal,
undemocratic, immoral and therefore unacceptable legal instruments are still in
36
There is no room here to mention all the legislative instruments that are still in force and
applied by the Israeli executive apparatus, despite the fact that they are highly
discriminatory for all non-Jews, i.e. mainly the Palestinian Arab people, and constitute
severe infringements of human rights and freedoms and a breach of international law. But
see for example the following - still valid and routinely applied - legal instruments:
Defence (Emergency) Regulations, 1945, supra note 5; Law of Return, 1950, 4 L.S.I.
(1949/50) 114; Absentees' Property Law, 1950, 4 L.S.I. (1949/50) 68; World Zionist
Organization (WZO) and Jewish Agency (Status) Law, 1952, 7 L.S.I. (1952/53) 3; Keren
Kayemet Le-Israel Law, 1953, 8 L.S.I. (1953) 35; Basic Law: Israels Land, 14 L.S.I.
(1959/60) 48; Israel Lands Law, 1960, 14 L.S.I. (1960/61) 49; Agricultural Settlement
(Limitations on Use of Agricultural Land and Water) Law, 1967, 21 L.S.I. (1966/67) 105
37
Schnitzer v. Chief Military Censor, supra note 29, at 81, 87-88. (This case will be
discussed in detail in Chapter F.4.4. of this work)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
14
force and are - as the reality shows - even regularly applied by the executive
apparatus.
(c) A third reason for the empty attempt of the two basic laws on human rights
to really enhance the democratic level of Israel's legal system lays in the fact that
most of the illegal, immoral and therefore unacceptable jurisprudence, that was
developed by Israel's Supreme Court over the decades, has never been overruled
or declared as illegal and, therefore, is still in force.
38
Although it is true that especially during the year 1999, the Israeli Supreme
Court has overruled some of its earlier illegal decisions - such as the decisions
relating to the Supreme Court's legitimating of torture,
39
which is a gross
violation of international human rights law and universally recognized principles
of law - most of the illegal, immoral and unacceptable jurisprudence still lays at
the very foundations of the Israeli legal system itself, and forms its legal
environment.
This is revealed by the following two facts:
1. Israeli judges - as the reality shows - still rely explicitly on such
jurisprudence.
40
2. As already mentioned above Israel's inherited and enacted legislation must
be "interpreted in harmony with the new legal environment and normative
umbrella which has been developed since the establishment of the state of Israel,
and which consists - according to the Israeli Supreme Court - not only of the
immediate legal context, but also of accepted principles, basic aims and
38
Concerning the following issues the jurisprudence has never been overruled or declared
as illegal: Expropriations of land owned by Palestinian Arab citizens of Israel or
inhabitants of the Occupied Territories, see Chapter G. (The Right to Property);
extrajudicial killings and executions of Palestinian Arabs, see infra note 55; deportations
and mass deportations of Palestinian Arab civilians in the Occupied Territories, see infra
notes 58, 59; demolitions, sealings, forfeitures and seizures of houses belonging to
Palestinian Arab civilians in the Occupied Territories, see infra notes 60-63;
jurisprudence concerning anti-Arab racism, see supra note 20
39
E.g., H.C. 5100/94, The Public Committee Against Torture in Israel et al. v. The State of
Israel, discussed in B'Tselem,
POSITION PAPER,
Legislation Allowing the Use of Physical
Force and Mental Coercion in Interrogations by the General Security Services (Jerusalem,
January 2000)
40
See for example the present Supreme Court President Aharon Barak who relies in
paragraph 79 of the Mizrahi Bank case, supra note 20, on the decision in the matter of
H.C. 73/85, Kach Faction v. Knesset Speaker, 39(iii) P.D. 141. (In the Kach Faction case
the Supreme Court overturned the decision of the Israeli Broadcast Authority (IBA) and
ordered the IBA to broadcast the political opinions of Rabbi Meir Kahane, who was
elected to the Knesset on the extremely anti-Arab and racist Kach platform, calling for the
exclusion and expulsion of all Palestinian Arab citizens from the state of Israel and the
Occupied Territories, for discrimination between Jews and non-Jews, and for outlawing
sexual relations between Jews and non-Jews. This case will be discussed in detail in
Chapter F.5.2. of this work.)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
15
fundamental criteria which derive from the sources of social consciousness of the
nation within which the judges live."
41
That means in other words:
All the jurisprudence that has been developed over the decades and that was
never explicitly overruled or declared illegal, but that reflects "the principles,
basic aims and fundamental criteria which are accepted by the Israeli society and
which derive from the sources of Israel's social consciousness" forms "the legal
environment or normative umbrella over all legislation" - in spite of the fact that
such jurisprudence is often illegal, immoral, sometimes even a gross violation of
international law and universally recognized principles of law and therefore
totally unacceptable.
To sum up the situation one may say that - in accordance with the above
described line of interpretation - a large part of illegal, immoral and totally
unacceptable jurisprudence still enters directly or indirectly, but on a regular and
daily basis, Israel's normative system and jurisprudence in all court instances.
1.9. International Law
(15) In addition to the mentioned subjects, this work intends to show which
kind of importance has been attached by the Israeli government and the legal
apparatus towards international law.
Although in 1991 Israel has ratified all major international conventions, I will
nevertheless show in the course of this work, that the mentioned ratification had
little impact on the situation of human rights as a whole, due to the fact that - at
least until now - most of the provisions of the various covenants were not
incorporated into Israel's domestic law.
2. Basic Approaches of Israel's Supreme Court
(16) In the course of this work I will demonstrate that the judgments of the
Supreme Court influenced the Israeli Jewish society and the governmental policy
in regard to values, standards of morality, and opinions about justice and fairness.
(17) The presented cases delineate political and legal realities, prescribe power
allocations and also echo the debate between the members of the Supreme Court
concerning judicial techniques and the role of the judiciary within the society.
(18) I will argue that the legal approach of the Supreme Court is
predominantly technical, occupied with the application of existing statutes
through interpretation of their provisions.
41
Schnitzer v. Chief Military Censor, supra note 29, at 81, 87-88
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
16
The principal question is "what the law is," rather than "what the law should
be" if its constitutionality and compatibility with international law and
universally recognized values is to be upheld.
(19) There is also a big tendency of the judges to turn to comparative law
sources for assistance in the interpretation of new laws and for justifying their
decisions.
(20) But to a large extent the Supreme Court judges also rely on their own,
over the decades developed - often illegal, immoral and therefore unacceptable -
jurisprudence.
(21) An important aspect of many decisions concerning civil and political
rights and freedoms is the big influence of American realism as represented by
former U.S. Supreme Court Justice O. W. Holmes and others.
(22) On the other hand one may also find principles based on natural law.
Especially in the early years after the state of Israel has been established the
Supreme Court founded its decisions on natural law as the famous leading case in
the matter Bejerano v. Minister of Police, concerning freedom of occupation,
shows.
42
(23) Another feature is the fact that in some decisions the spiritual foundations
and sources upon which judges base their arguments are not secular law and
secular thinkers but ancient Jewish sources, such as the Talmud and
commentaries on that work.
43
(24) The judgments reflect various philosophical ideas - naturalist approaches
as well as realist and positivist conceptions - and different methods of legal
reasoning employed by the judges in order to found their opinions.
(a) Supreme Court President Aharon Barak for example, favors the flexible
test based on balancing of the competing interests and values involved. In this
work I will argue that the balancing test is a vague, not exact and sometimes even
unhelpful test.
I will demonstrate that everything depends on the question of which interests
are involved and how much weight is assigned to them in a specific situation.
Sometimes the balancing test serves to rationalize judicial restraint,
44
while in
other cases the same test serves as a rationale for judicial activism.
45
42
H.C.
1/49,
Bejerano v. Minister of Police, for a summary in English see 8 I.Y.H.R. (1978)
373
43
H.C.
72/62,
Rufeisen v. Minister of the Interior, translated into English in a Special
Volume of S.J. (1962-69) 1; H.C. 58/68, Shalit v. Minister of the Interior, translated into
English in a Special Volume of S.J. (1962- 69) 35
44
H.C.
652/81,
Sarid v. Chairman of the Knesset, translated into English in 8 S.J. (1969-
1988) 52
45
H.C.
742/84, Kahane v. Knesset Speaker, for a summary in English see 22 Isr.L.Rev.
(1987) 219, at 222-223
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
17
The discretion placed by the balancing test in the hands of the Court is
sometimes too wide and enables the judge any answer he feeds into it. It is
therefore almost impossible of assuring impartiality of results.
Furthermore, an important aspect of President Barak's judgments is the fact
that he occasionally bases his reasoning on intellectual sources with contrasting
conceptions, and consequently develops an own theory of law.
46
(b) Former Supreme Court President Justice S. Agranat on the other hand
preferred to rely on American doctrines, as in the opinion that he wrote for the
Supreme Court in the early and well known Kol Ha'am case
47
concerning
freedom of speech - a fundamental right which, until today, is not incorporated in
any written law or statute. In this case Justice Agranat resorted to the Declaration
of the Establishment of the State of Israel, 1948 as an instrument for
interpretation in order to incorporate freedom of speech into Israel's legal order.
In contrast to the Supreme Court jurisprudence that preceded the Kol Ha'am
case - in which the Court based its reasoning only on sources that were explicitly
recognized in form of legislative acts - Justice Agranat introduced with the Kol
Ha'am case the concept of extra-statutory rights into Israel's legal order. With the
Kol Ha'am case Justice Agranat also 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.
(c) Former Supreme Court President Meir Shamgar displays to a great extent
Grand Style
48
judicial reasoning. In his decisions he articulates - as it is typical
for this style of judicial reasoning - both legal and non-legal arguments in order
to explain and to justify his opinions.
His opinions are also characterized by a policy-oriented activism, and in order
to shape Israeli law in the area of fundamental rights and freedoms he borrows in
many decisions American doctrines.
(d) Deputy President Miriam Ben-Porath's decisions, on the other hand, are
characterized by a Formal Style of judicial reasoning. As it is typical for this
style of judicial reasoning, she presents the outcome of opinions as following
inevitably or mechanically from preexisting rules.
Justice Miriam Ben-Porath demonstrates strong loyalty to English law.
46
See for instance the decision in the Mizrachi Bank case, supra note 20. In this decision
President Barak bases his reasoning concerning the Constituent Authority of the Knesset
on the positivistic doctrines of Hans Kelsen (Grundnorm-model) and H.L.A. Hart (rule of
recognition) as well as on Ronald Dworkin's interpretative concept of law.
47
Kol Ha'am, supra note 32
48
For a discussion of the term "Grand Style" see Karl Llewellyn, Jurisprudence, Realism in
Theory and Practice (The University of Chicago Press, 1962) 217
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
18
(e) Justice Moshe Landau uses in his decisions a mixture of styles of judicial
reasoning, namely a Formal Style and a Grand Style.
(f) And the Justices Haim Cohn, Kister, Menachem Elon and Moshe Silberg
often base their arguments on Jewish religious sources.
(25) In analyzing the various leading judicial decisions dealing with the
subject of civil and political rights not only the majority opinion of the Court will
be presented, but also in some cases selective minority opinions worth being
portrayed.
(a) To mention for example in this context is the recent change in the
jurisprudence of Justice Mishael Cheshin regarding the demolition of houses of
Palestinian Arabs which have been convicted of the murder of Jews. In the past
the Supreme Court has consequently rejected the view that demolition and
sealing of houses constitutes collective punishment. In two minority opinions in
1992 Justice Cheshin deviated from previous rulings on this issue and held that
the security forces should "only destroy those rooms which were actually used by
the murderers", but not the whole house "in order to avoid collective
punishment."
49
However, this jurisprudence continues to be undemocratic and
illegal since in principle it still permits the demolition of houses.
(b) Another example of an important minority opinion worth being mentioned
is that of Justice Daliah Dorner, who - in a 2-1 decision handed down in
November 1997 - voted against the continued administrative detention of ten
Lebanese citizens without charge or trial, solely for the purpose of using them as
"human bargaining chips in negotiations with various organizations for
advancing the release of prisoners of war."
Nevertheless, her minority opinion is deplorable as well, since she did not
reject the legitimacy of holding hostages to attain the release of POWs and
MIAs, but rather ruled that the legal basis upon which the state relies - i.e. the
Emergency Powers (Detention) Law, 1979 - is inappropriate for this purpose.
Justice Daliah Dorner stated: "I would postpone the release of the appellants
for a reasonable period of time, in order to enable the state to examine its
authority and interest in holding the appellants by power of another law."
50
49
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. 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
50
AAD
10/94,
Plonim (i.e. Unnamed) v. Minister of Defence, para. 5 of Justice Dorner's
decision. 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, at 9, 14. 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
Justice Y. Kedmi and the present Supreme Court President A. Barak wrote absolutely
illegal, immoral and intolerable opinions in favor of holding the ten Lebanese civilians as
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
19
These are only a few examples of legal techniques and aspects of judicial
reasoning of some judges. Of course I will present in the course of this work also
arguments of other members of the Supreme Court.
(26) In this analysis I will show that the Supreme Court in his task of
protecting the individual's civil and political rights and freedoms has mainly
adopted a positivistic, formalistic, dogmatic, authoritarian jurisprudential
conception often citing the famous legal philosopher Hans Kelsen as well as
other representatives of legal positivism, such as H.L.A. Hart.
This conception is characterized (1) by the belief that the only source of the
individual's subjective right is the positive law; (2) by the distinction between
"law as it is" and "law as it ought to be"; (3) by the literal application of law
within self-imposed limits of a rigid scheme of deductions; and (4) by a complete
indifference towards individual human affairs and justice.
51
(27) I will demonstrate that especially in so called "security matters" involving
the Palestinian Arab people living in Israel and the Occupied Territories, the
Supreme Court has based its decisions on a strong formalistic and legalistic
conception, and thus succeeded - and still succeeds - to escape from dealing with
the reality and the substantive issues at stake.
As a result of this conception the Supreme Court approved - and still approves
- acts performed by the executive branch of the government
52
in the name of
"security reasons" which actually constitute unjustified and severe infringements
of human rights, a breach of international law
53
and universally recognized
principles of law.
54
hostages for the release of POWs. In doing so these High Court judges Kedmi and Barak
legitimate war crimes and become themselves part of them.
President A. Barak using again his favored test of "balancing human rights against Israel's
interests" wrote as follows: "The point is, that there is no doubt in my mind that returning
the POWs and MIAs in and of itself is a goal and interest that falls within the scope of
state security..." Ibid., para. 10 of President Barak's opinion.
"However, after thoroughly studying the material before me and the arguments of the
sides, I am satisfied that this violation [to human dignity and liberty] - as harsh and
painful as it is - is necessitated by the security and political reality, and reflects the proper
balance point in the circumstances of the case, between individual freedom and the
necessity to protect state security." Ibid., para. 12 of President Barak's opinion.
51
Mieczyslaw Maneli, Juridical Positivism and Human Rights (Hippocrene Books, New
York, 1981) at 284-286
52
The executive branch of the government consists of ordinary and military authorities as
well as of the security apparatus.
53
Violated are norms of the Hague Regulations Annexed to the Hague Convention (IV)
Respecting the Laws and Customs of War on Land, 18 October 1907; the Geneva
Convention relative to the Protection of Civilian Persons in Time of War, 12 August
1949; the Convention on the Elimination of All Forms of Racial Discrimination, 1966;
the International Covenant on Civil and Political Rights, 1966; the International Covenant
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
20
(a) Such severe infringements mainly concern the Palestinian Arab people,
living in Israel and the Occupied Territories and are caused by measures, such as
extrajudicial killings and executions,
55
administrative detention of civilians
without fair trial
56
- sometimes even over years,
57
deportation of civilians
58
- even
on Economic, Social, and Cultural Rights, 1966; the Convention Against Torture and
Other Cruel Inhuman or Degrading Treatment or Punishment, 1984
54
Universally recognized principles of law are binding on all states in accordance with
Article 38(1)(c) of the Statute of the International Court of Justice.
55
See the following cases concerning extrajudicial killings and executions:
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
Regarding extrajudicial killings and executions see also B'Tselem, The Israeli
Information Center for Human Rights in the Occupied Territories, Activity of the
Undercover Units in the Occupied Territories (Jerusalem, May 1992); B'Tselem, Law
Enforcement vis-à-vis Israeli Civilians in the Occupied Territories (Jerusalem, March
1994); B'Tselem, Lethal Training, The Killing of Muhammad Al-Hilu by Undercover
Soldiers in Hizmeh Village, Case Study (Jerusalem, March 1997)
56
See the following cases concerning administrative detention:
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
57
See the following cases concerning administrative detention 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; Plonim (i.e. Unnamed) v. Minister of Defence, supra note 50
58
See the following cases concerning 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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
21
mass deportation,
59
demolition of houses,
60
sealing off houses,
61
forfeitures of
houses,
62
seizure of houses
63
and land,
64
restrictions on residence and the right to
59
See the following cases concerning 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
60
See the following cases concerning 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; Khizran v.
Military Commander of IDF in the West Bank, supra note 47; 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; Al-Amrin v. Military Commander of IDF in the Gaza Strip, supra note 49
61
See the following cases concerning sealing off 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.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
22
family unification,
65
restrictions on travel and movement,
66
police supervision,
67
curfews,
68
closures of areas,
69
closures of institutions,
70
control of speech rights,
71
(1995) 335; H.C. 5510/92, Turkeman v. Minister of Defence, for a summary in English
see 25 I.Y.H.R. (1995) 347
62
See the following case concerning forfeitures of houses belonging to Palestinian Arab
civilians living in the Occupied Territories:
Zakik v. Military Commander of IDF in the West Bank, supra note 60
63
See the following case concerning 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
64
See the following case concerning seizure of land privately 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
65
See the following cases concerning restrictions of residence and family unification of
Palestinian Arab civilians living in the Occupied Territories:
H.C.
13+58/86,
Shaine v. Military Commander of IDF in the West Bank, Head of the
Gaza Strip Civil Administration, for a summary in English see 18 I.Y.H.R. (1988) 241
See also on this issue B'Tselem, Families Torn Apart, Separation of Palestinian Families
in the Occupied Territories (Jerusalem, July 1999) at 125
66
See the following cases concerning restrictions of travel and movement of Palestinian
Arab civilians living in Israel:
H.C.
269/60,
Watad v. Military Court (accelerated judicial procedure), Central Region,
14 P.D. 2418
See also Adalah News, http://www.adalah.org/news.htm (The Supreme Court of Israel
Dismisses Adalah's Petition against the IDF for Prohibiting Palestinian Arab Citizen of
Israel from Entering the West Bank - 4/26/00)
See the following cases concerning restrictions of travel and movement of Palestinian
Arab civilians living in the Occupied Territories:
H.C. 658, 660-62/80, Taha v. Minister of Interior, for a summary in English see 11
I.Y.H.R. (1981) 361; H.C. 448/85, Dahaar Adv. v. Minister of Interior, for a summary in
English see 17 I.Y.H.R. (1987) 301
67
See the following cases concerning police supervision of Palestinian Arab civilians living
in Israel and the Occupied Territories:
H.C.
46/50,
Al-Ayubi v. Minister of Defence, 4 P.D. 222; H.C. 56/65, Sabri Jiryis v.
Military Commander of District A, 19(i) P.D. 260; H.C. 771/80, Al-Sayad v. Military
Commander of IDF in the West Bank, for a summary in English see 11 I.Y.H.R. (1981)
364; H.C. 554/81, Baransa v. Chief of Staff, for a summary in English see 17 I.Y.H.R.
(1987) 300
68
See the following case concerning curfew in Israel:
Appeal
279-283,
Ofer, Malinki, Dahan, Mahluf, Eliahu, Gabriel, Albert, Edmund, v.
Chief Military Prosecutor, 44 Psakim (Judgments of the District Court of Israel) 362;
translated into English in 2 Palestine Yearbook of International Law (1985) 71, at 94, 104
[The Kafr Qassem case]
See the following cases concerning curfews in the Occupied Territories:
H.C.
1113/90,
Shav v. Military Commander of IDF in the Gaza Strip, for a summary in
English see 23 I.Y.H.R. (1993) 332; H.C. 477/91, Association of Israeli-Palestinian
Physicians for Human Rights v. Minister of Defence, for a summary in English see 23
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
23
declaration of associations as unlawful,
72
discrimination in law enforcement
73
and even the use of "methods of psychological and physical pressure" during the
interrogations of detained and imprisoned "security" persons.
74
I.Y.H.R. (1993) 341; H.C. 1358/91, Arshid v. Minister of Police, for a summary in
English see 23 I.Y.H.R. (1993) 342
See also on this issue B'Tselem, Annual Report 1989: Violations of Human Rights in the
Occupied Territories (Jerusalem, December 1989) at 77-83; B'Tselem, Human Rights in
the Occupied Territories During the War in the Persian Gulf (Jerusalem, January -
February 1991) at 3-4, 15-16; B'Tselem, Human Rights Violations in the Occupied
Territories 1992/93 (Jerusalem, 1994) at 93-97
69
See the following cases concerning closures of areas in Israel:
H.C.
220/51,
Asslan v. Military Commander of the Galilee, 5 P.D. 1480; H.C. 33/52;
288/51, Asslan v. Military Commander, 9 P.D. 689
Adalah, The Legal Center for Arab Minority Rights in Israel, Brief: Umm al-Fahm,
Focusing on events of 27-29 September 1998; HA'ARETZ, English Edition, 2 October
1998, at B1 (Uzi Benziman, Corridors of Power - A festering sore)
70
See the following case concerning closures of Palestinian institutions located in the
Occupied Territories:
H.C.
198/85,
Khamdan v. Military Commander of IDF in the West Bank, for a summary
in English see 17 I.Y.H.R. (1987) 316
See also on this issue B'Tselem, Annual Report 1989, supra note 68, at 93-100; B'Tselem,
Closure of Schools and Other Setbacks to the Education System in the Occupied
Territories (Jerusalem, September-October 1990); B'Tselem, Human Rights Violations in
the Occupied Territories 1992/93, supra note 68, at 99-103
71
See the following cases concerning the control of speech rights in connection with the
Palestinian Arab people:
H.C.
29/62,
Cohen v. Minister of Defence, translated into English in 4 S.J.(1961-1962)
160; H.C. 39/64, El-Ard v. District Commissioner, 18(ii) P.D. 340; H.C. 415/81, Ayoub v.
District Commissioner, 38(i) P.D. 750; H.C. 322/81, Makhoul v. District Commissioner,
37(i) P.D. 789; Cr.A. 696/81, Azulai v. State of Israel, for a summary in English see 19
Isr.L.Rev. (1984) 586; 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; H.C. 562/86, Al-Khatib v.
Minister of Interior, for a summary in English see 17 I.Y.H.R. (1987) 317; H.C. 648/87,
Kassem v. Minister of Interior, for a summary in English see 18 I.Y.H.R. (1988) 254
72
See the following cases concerning the declaration of associations as unlawful involving
the Palestinian Arab people:
H.C.
241/60,
Kardosh v. Registrar of Companies, translated into English in 4 S.J. (1961-
1962) 7; F.H. 16/61, Registrar of Companies v. Kardosh, translated into English in 4 S.J.
(1961-1962) 7; H.C. 253/64, Sabri Jiryis v. Commissioner of the Northern District, 18(iv)
P.D. 673
73
See the following report concerning the discrimination in law enforcement of Palestinian
Arab civilians living in the Occupied Territories:
B'Tselem, Law Enforcement vis-à-vis Israeli Civilians in the Occupied Territories
(Jerusalem, March 1994)
See the following report concerning the discrimination in law enforcement of Palestinian
Arab civilians living in Israel:
Adalah, News, http://www.adalah.org/news.htm, pages 10-12 [(Attorney General
Endorses Police Review of Violence at Umm El Fahm; Forced to Re-Open Investigation
after Public Outcry - 2/25/00); Adalah, Annual Report 1999, at 22]
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
24
(b) As already mentioned above, in 1987 the Landau Commission - a
Commission of Inquiry which was named after its head Justice Moshe Landau -
was set up and confirmed in a Final Report that acts of violence, such as pulling
the hair, shaking, throwing to the ground, kicks, slaps and insults, prevention of
sleeping for hours had indeed been used in many interrogations of detained and
imprisoned persons.
75
The Report of the Landau Commission discussed at great length the so called
"dilemma between the vital need to preserve the very existence of the state and
its citizens, and [the need] to maintain its character as a law-abiding state which
believes in basic moral principles,"
76
and finally concluded that the only solution
to the above mentioned "dilemma" is "the truthful road of the rule of law, i.e. the
law itself must ensure a proper framework for the activity of the General Security
Service (GSS) regarding Hostile Terrorist Activity."
The Report furthermore stated that in cases in which it is essential to extract
information from persons in order to protect the security of the state, the
interrogators could use "forms of non-violent psychological pressure" and "when
these do not attain their purpose, moderate physical pressure" is legitimate.
77
The kind of methods that may be regarded as "moderate measure of physical
pressure" has been laid down and defined in detail in secret governmental
guidelines. The Israeli government has never published these guidelines,
claiming that suspects will be able to prepare themselves to withstand
interrogations. The Landau Commission justified the use of physical force in
interrogations by the criminal "defence of necessity" embodied in Section 34 of
the Penal Law, 1977.
78
Since September 1994, following a wave of terrorist attacks committed by
Palestinian Arabs,
79
an inter-ministerial committee furnished the GSS even with
74
See the following cases concerning torture of Palestinian Arab civilians living in the
Occupied Territories:
H.C.-V.R. 336//96 (H.C. 7964/95), Bilbeisi 'Abd al-Halim v. General Security Service;
H.C. 8049/96, Hamdan Muhammad 'Abdas-'Aziz v. General Security Service; H.C.
3124/96, Mubarak v. General Security Service; all three cases are translated in B'Tselem,
Legitimizing Torture: The Israeli High Court of Justice Rulings in the Bilbeisi, Hamdan
and Mubarak Cases, An Annotated Sourcebook (Jerusalem, January 1997) at 5; H.C.
532/91, X v. The State of Israel, ibid., at 12
75
Landau Commission Report, supra note 8, at 150
76
Ibid., at 182
77
Id., at 184, 185
78
Id., at 186. The Landau Commission Report, supra note 8, still mentions the old relevant
statute for the "Defence of necessity," namely Section 22 of the Penal Law, 1977. After
an Amendment of the Penal Law in 1994, Section 22 became Section 34.
79
On 25 February 1994 an Israeli Jewish settler murdered 29 Palestinian Arab Muslim
worshippers in the Cave of the Patriarchs in Hebron and was killed during the course of
his attack. See B'Tselem, Captive Corps (Jerusalem, March 1999) at 9
Following this event a wave of terrorist attacks was committed by Palestinian Arab
suicide killers, in which dozens of Israelis and Arab civilians were killed and severely
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
25
additional "special permissions" to use "enhanced physical pressure" against
members of Hamas and the Islamic Jihad.
80
Additionally to the mentioned legal justification of criminal law (Section 34 of
the Penal Law, 1977), the Israeli government attempted several times to have get
approved by the Knesset a Draft Law on the General Security Service (GSS)
81
in
order to legally sanction the present methods of interrogation, which constitute
torture. Only due to immense pressure by the international community
82
and by
Israeli human rights organizations
83
these draft laws were withdrawn or
postponed.
But torture was - until the recent highly important decision
84
handed down by
the Supreme Court on 6 September 1999 - also effectively legalized by the Israeli
Supreme Court, who - in dozens of cases involving individuals (mostly
Palestinian Arabs) who had been tortured or ill-treated - accepted the arguments
of the state's representative that "moderate physical pressure" used by the GSS
does not constitute torture, but that in the case of a "ticking bomb" even torture
would be justified by the "defence of necessity" (Section 34 of the Penal Law,
1977).
However, in September 1999, the Supreme Court ruled for the first time that
the interrogation methods used by the GSS are illegal, and that these prohibitions
are absolute.
(28) I want to stress at this point that even before the above mentioned
decision declaring torture as illegal, the use of any physical violence and
psychological means of pressure, amounting to torture and ill-treatment, was not
only absolutely prohibited by international law, but also constituted a severe
injured: The first attack of this series occurred on 6 April 1994 in the town Afula, where a
Palestinian Arab refugee from the Qabatiyeh refugee camp committed a suicide-bombing
attack. In this attack 7 people (6 Israeli Jews and 1 Israeli Arab woman) were killed and
40 people severely injured. Ibid., at 13. The second suicide-bombing attack committed by
a Palestinian Arab took place in the same month of April 1994 - this time in the town
Hadera. Id. In October 1994, a third suicide-bombing attack was committed by a
Palestinian on the Bus No. 5 in Tel Aviv. See B'Tselem, Cooperating against Justice:
Human Rights Violations by Israel and the Palestinian National Authority following the
Murders in Wadi Qelt (joint report issued by LAW) (Jerusalem, June 1999) at 18
80
B'Tselem, Legitimizing Torture, supra note 74, at 67
81
Draft Law on the General Security Service (GSS) (Hebrew)
82
Amnesty International - News Release, New Draft Law - A Green Light to Torture (MDE
15/12/98, 10 February 1998); Amnesty International - News Release, Israel Should
Observe UN Committee Against Torture Call for Immediate Halt to Torture (MDE
15/32/98, 19 May 1998)
83
B'Tselem - Press Release, B'Tselem's Response to the Proposed GSS Law (25 January
1996)
84
H.C.
5100/94,
The Public Committee Against Torture in Israel et el. v. The State of
Israel, supra note 39. In this decision six petitions, which were filed by various human
rights organizations challenging the interrogations methods by the GSS, were grouped
together.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
26
breach of Israeli law, namely Section 2 and Section 4 of the Basic Law: Human
Dignity and Freedom, and Section 277 of the Penal Law, 1977.
(29) In this context it should also be said that torture falls within the category
of those crimes for which according to international law responsibility is imposed
not only upon the state, but also upon the individual in a personal capacity for the
commission of the act (individual responsibility).
(30) Furthermore, it should be stressed that torture has no place in a
democratic and enlightened society, built on the moral belief that the end, not
important how good it might be, does not justify the use of any means in order to
achieve it.
(31) From my point of view, situations of ethnic or national conflict cannot
and may not be resolved by employing repressive and totalitarian measures but
rather must be settled through negotiations, with the outcome of agreements -
based on universally recognized principles, justice,
85
equity and respect for
human rights for all sides of the conflict - that have durability without
enforcement through force.
To reach such agreements is - of course - the most difficult task.
3. Questions of the Legitimacy of Israel's Legal Order
(32) In the above mentioned context, the general question arises to what extent
the law shall be combined with the deployment of coercive force, i.e. a sanction.
(a) For representatives of classical positivism, such as Jeremy Bentham and
John Austin, law depends on the imposition of sanctions. According to this
concept of law, the coercive element, along with that of political sovereign
command, is the ultimately definitive characteristic of law.
(b) However, Professor H.L.A. Hart, who is another representative of the
positivist school, has stressed that law that only depends on sanctions, i.e.
coercive force, is unstable.
He has therefore emphasized, that law
86
- as distinguished from regimes of
terror - presupposes acceptance of the legitimacy of its underlying authority by
most of the people.
85
In that context the question arises "What is justice?" Justice is - specifically in situations
of a conflict - by different groups in different situations perceived differently. Justice
depends, inter alia, on the historical experience of a people involved in a conflict.
86
H.L.A. Hart equates "law" with "legal systems". H.L.A. Hart, The Concept of Law
(Oxford University Press, 1961)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
27
The central thesis of Hart's concept of law is that the foundations of a legal
system consist in an ultimate rule of recognition providing the authoritative
criteria for the identification of valid rules of the system.
87
Professor Hart emphasized that stable legal systems depend on the beliefs and
attitudes among the people, which is subjected to it.
(c) In applying Professor Hart's thesis on the case of the state of Israel I may
only observe that the policies and practices - such as extrajudicial killings and
executions, torture, administrative detention, deportations, demolition/sealing
off/forfeitures/seizures of houses, confiscations of land, restrictions on residence
and family unification, restrictions on travel and movement, police supervision,
curfews, closures of areas and institutions, control of speech rights, declaration of
associations as unlawful and discrimination in law enforcement - that were
systematically employed by the Israeli government and which were oppressive
and unjust for the main part of the Palestinian Arab people have precisely
produced the opposite than a stable legal and governmental system.
Although the said policies and practices were always strictly based on laws
and regulations, of course they could neither lead to a real identification of the
Palestinian Arab people with the values and rules of Israel's governmental
system
88
nor produce much respect for the rule of law, but naturally could only
lead to a strengthening of their national feelings.
This is specifically true with regard to the Palestinian Arab people living in the
Occupied Territories which opposed at all times since the occupation in 1967 -
up until today - the imposition of Israel's rule on them.
The above mentioned issues are the most important and central ones to be
mentioned in this work.
(33) However, before dealing in more detail with the foundations of civil and
political rights and freedoms in Israel and the Occupied Territories, it seems
necessary to me to provide in the following Chapter A some essential
information regarding the history, ideology and philosophy of political Zionism,
forming the background for the idea and decision towards a "national home" for
the Jewish people in Palestine and culminating in the establishment of the state of
Israel in Palestine in May 1948.
This background information is highly important for a deeper understanding
of Israel's concept of civil and political rights and freedoms in general, and the
implications - deriving from the establishment of the state of Israel in Palestine -
for the native Arab Palestinians in particular.
87
Ibid., at 97-98
88
In a small size even the Jewish/Israeli population does not identify with these values.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
28
At the same time this background information gives an insight into the very
beginnings of the conflict between the Israeli/Jewish/Zionist and the
Palestinian/Arab people.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
29
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
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)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
30
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
31
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 19
th
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.
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
32
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 19
th
century
21
in response to the growing anti-Semitism
22
- in the sense of anti-Jewish
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
33
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
34
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
35
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:
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
36
"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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
37
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
38
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
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
(28
th
Edition, Europa Publications Limited 1981) at 62
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
39
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 20
th
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
40
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
41
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
42
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
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.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
43
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
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.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
44
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.
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
45
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
46
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 18
th
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 20
th
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
47
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
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, 3
rd
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
48
· 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.
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.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
49
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.
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
50
3.5. The Jerusalem Programme - Established in 1951
In 1951, at the 23
rd
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 27
th
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,
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
51
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.
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
52
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.
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
53
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
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.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
54
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:
92
Kretzmer, supra note 9, at 92
93
Ibid., at 92
94
Id., at 90; Sternhell, supra note 23, at 396
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
55
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
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.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
56
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
57
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 5
th
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
58
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 5
th
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
59
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]
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)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
60
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.
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
61
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 19
th
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.
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
62
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.
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
63
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
64
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
65
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
66
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
135
Ibid., at 65
136
Id.
137
Id.
138
Id.
139
Id., at 64
140
Id., at 66
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
67
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
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)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
68
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
69
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
70
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
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)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
71
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.
157
Passfield White Paper, 1930, supra note 155, at 17-18
158
Laqueur, supra note 20, at 492
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
72
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
73
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:
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
74
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:
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
75
"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.
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)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
76
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
77
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
182
UNSCOP-Report, Report of the United Nations Special Committee on Palestine, 31 August,
1947, UN document A/364, GAOR 2
nd
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
78
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
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.
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
79
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
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)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
80
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
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 3
rd
Sess., Supplement No. 11, at 28
208
Takkenberg, supra note 7, at 243
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
81
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
82
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
83
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
84
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
85
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
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)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
86
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 19
th
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.
235
Ian Lustick, Arabs in the Jewish State, Israel's Control of a National Minority (University of
Texas Press, Austin, 1982) at 152
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
87
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
88
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'."
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)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
89
- 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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
90
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
91
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
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)
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
92
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
93
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
256
UNSCOP-Report, 1947, supra note 182, at 30
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
94
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
95
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.
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."
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
96
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
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
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
97
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.
272
Id., para. 5
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
98
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
1
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
2
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.
3
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.
4
1
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
2
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)
3
Ibid., Part I, Section B, paras. 9, 10, 10(d) and Section C
4
Id., Part I, Section C, para. 1
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
99
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.
5
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.
6
The Declaration of the Establishment of the State of Israel of 14 May 1948
7
[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
8
(ending with the words "...the Jewish
state to be called Israel"
9
) 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 1
st
October 1948
10
..."
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"
11
) describes
all those fundamental values and principles which should guide the state and upon
5
Id., Part I, Section C, Chapter 2 (Religious and Minority Rights)
6
Id., Part I, Section F
7
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
8
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 (5
th
ed., Shocken Press, Jerusalem, Tel Aviv, 1996) (Hebrew) 45
9
Declaration of the Establishment of the State of Israel, supra note 7, at 4
10
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
11
Declaration of the Establishment of the State of Israel, supra note 7, at 4
©, Mag. Dr. Yvonne Schmidt, 2001
Foundations of Civil and Political Rights in Israel and the Occupied Territories
100
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"
12
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."
13
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
14
and the Basic Law: Freedom of Occupation
15
- 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.
12
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
13
Ibid., at 4
14
Basic Law: Human Dignity and Freedom, supra note 1
15
Basic Law: Freedom of Occupation, supra note 1
0 comments