The security of the State of Israel is the central psychological factor which governs the approach of the ordinary citizen to the Palestinian problem. But how is national security interpreted? Does control over the West Bank and its inhabitants increase Israel’s national security or does it ultimately endanger the existence of the Jewish state? If a Palestinian state on the West Bank brings an end to the Intifada, will it also bring with it the prospect of Katushas raining down on Jerusalem? These are legitimate questions which all Israelis ask.
In addition to voicing the security concerns of the Jews of Israel, Likud and the parties on the far right have ideological reasons for retaining the Territories in accordance with Revisionist doctrine. It is therefore in their political interest not to differentiate between the two issues and to subsume all questions arising from the Israeli presence in the Territories within concerns of national security. Thus, whilst ensuring the security of the State of Israel, a Likud government also conducts an ideological war against all Palestinian nationalists who reject Israeli national sovereignty over the Territories. The reticence of Likud to countenance negotiations with Palestinians and Mr Shamir’s prevarications on the Baker Plan in 1989 and 1990 emerge naturally from this ideological preoccupation.
Likud views the PLO—at least publicly—as solely a terrorist organization. To accept the PLO’s political dimension and development would mean a recognition of Palestinian nationalism in a real rather than in an existential sense. It would mean the first step in the abandonment of the ideological war. The utilization of the principle of national security for means other than the safeguarding of the existence of the state has been a political weapon wielded by Israeli politicians of all colours. The ascendency of Revisionism in 1977 and the rhetoric of the far right in the eighties extended “national security” into hitherto untouched areas which ultimately impinged upon the rule of law and freedom of expression.
Yet the blame should not be laid solely at Likud’s door since the use of national security is clearly a tempting argument for any politician to utilize to make political capital. If such arguments are intended by politicians to mislead the Israeli public, they have also been successful to some extent with the judiciary. Judges are also members of society and thereby reflect a prevailing national mood. A former Attorney General, Israel’s top law officer, remarked: “Who likes to be regarded as unpatriotic, especially in times of national crises? In Israel, possibly more than in most countries, national security enjoys the status of a sacred cow.”1 Moreover, Israelis trust their military leaders and give their political leaders the benefit of the doubt on security matters even when they are couched in the vaguest and most general language. On other issues, however, Israelis demand precise and specific facts from the politicians before they are prepared to accept a position. On questions of national security, the indeterminate and often inscrutable are regarded as signals of the confidence which the public assigns to its leaders.
The argument of national security is, of course, invoked in cases which are not a cover for other designs, where it is sincerely felt that a specific action is a genuine threat. Yet here too, there is very little scrutiny in the public domain as to the meaning of the term “national security”. Is foreign press coverage of events in the Territories a threat to national security as many Likud figures have claimed? Is an atrocity carried out by terrorists on Israeli civilians a threat to the existence of the entire state? What characterizes a threat to the national existence of the State of Israel? No distinction is made in law between the general hostility towards Israel both internally and externally which has been present since 1948 and exceptional situations such as all-out war with one of its neighbours. As a result of the usage and indeed differing interpretations of “national security” by political parties and ideological forces, the civil liberties of individuals and organizations are often called into question.
A LEGAL INHERITANCE
The Israeli Government and Knesset have wide-ranging powers in the name of national security. Section 9 of the Law and Administration Ordinance (1948) enables the establishment of emergency regulations for a period of ninety days which involve a severe curtailment of civil rights, such as the ability to search and detain. Government ministers can override all other laws. Yet ironically these laws which have the potential to enact great violations of civil rights are not of Israel’s own making, but an unwanted inheritance from the days of the British Mandate.
In the pre-state days, the leadership of the Yishuv intended to set forth an Israeli Constitution in the spirit of the UN Declaration of Human Rights. Thus many basic and human rights were enshrined in the Israeli Declaration of Independence in 1948.
Indeed, the UN Resolution of 29 November 1947 which called for the establishment of two states—one Jewish, the other Arab—in Palestine also stipulated that elections for Constituent Assemblies for both states should take place two months after the termination of the British Mandate. A major task of such Constituent Assemblies would then be to draft a constitution which would enshrine civil rights for the citizens of both states and safeguard the rights of their minorities. The outbreak of war, the Arab rejection of a Palestinian state and its ultimate incorporation into Jordan delayed such elections. In the interim, a provisional State Council performed the role of the legislature in the new State of Israel. The first elections to the Knesset were eventually held at the beginning of 1949 and the legislative powers thus passed to the Constituent Assembly—the Knesset.
However, the hiatus in legal continuity which was caused by the war forced the Provisional Government to adopt an interim measure, the Law and Administrative Ordinance of 1948 (Official journal no. 1). This essentially comprised all laws which were in use in effect up until the proclamation of the state but excluded those which opposed the right of Jewish self-determination or discriminated against Jews. The detested Emergency Defence Regulations of 1945 which the British had used with great determination during the pre-state troubles—regulations which Menachem Begin had labelled “Nazi laws”—was thus inherited by Israeli law. One week after the Declaration of Independence, the Emergency Detention Law (Section 1) came into force.
The first Knesset decided against a proposal for a separate Bill of Rights which would encapsulate civil rights such as freedom of expression within the law. Instead, it was intended that an all-embracing constitution comprising separate chapters of basic laws would safeguard civil liberties.
This was the task allotted to the Knesset Constitutional, Law and Judicial Committee. However, due to differing secular and religious interpretations of such issues as the status of religion, the Committee was unable to reach a consensus. Religious members of the Knesset did not wish to create or recognize a secular document which could possibly conflict with their own vision of a Jewish state and thereby obedience to the tenets of Jewish religious law. In addition, Knesset members who supported the Government did not wish to create any legal restriction on their power. Thus Ben-Gurion argued in 1950 that Israel like Great Britain did not need a constitution. Significantly, only those members from both left and right who opposed the Mapai-led Administration argued in favour of a constitution. The lack of a constitution suited Ben-Gurion since it avoided problems of relations between the state and religion as well as the status of the Arabs in Israel. Thus, no constitution was ever drafted and no Bill of Rights ever enshrined in Israeli law. Attempts were periodically made to repeal the British Emergency Defence Regulations, but with no success. By 1984, only eight Basic Laws were on the statute book. In late 1989, a Human Rights bill floundered on the rock of religious opposition even though it had the full endorsement of the Likud Minister of Justice Dan Meridor and initially many leading figures in his party.
The Declaration of Independence clearly delineated between the powers of the legislature and the constitution. The telescoping of these powers within the authority of the Knesset in the absence of a constitution meant that it maintained “parallel powers—legislative and constituent—and that it may limit its own legislative powers while exercising its constituent powers”.2 Religious opposition to the introduction of such bills—the hallmark of many a Western democracy—led to anomalies such as Israel’s refusal to sign the International Covenant on the Civil and Political Rights of Man. The presence of the religious parties in government produced a situation where the Israeli Minister of Education has neither printed nor distributed the UN Declaration of Human Rights since 1958.3 The Mandatory Laws have thus, remained in force. The Emergency Regulations which provide the legal power to close down newspapers, to enact censorship, to carry out administrative arrests, to ban the formation of political associations, to restrict freedom of movement and to confiscate property while dormant for Israeli Jews have effectively been activated to quell all manifestations of Palestinian nationalism in the Territories. The Israeli Government promulgated the Order Concerning the Security Enactments (378) to ensure the full implementation of the Emergency Regulations in the territories to the extent that its inhabitants can be punished for what they think as opposed to what they actually do—for their opinions as opposed to their acts. In Israel, itself, although successive governments have refused to do away with such legal instruments of restriction, they have always remained passive precepts, on the statute book only.
Israeli society has always been characterized by its individualism and its frequent invocation of civil rights. This approach has only been tempered when an issue of national security required a higher level of adherence. Up until the Six Day War, there was often a consensus as to which took a higher priority in a given situation, “the rule of law” or “national security”. The post-1967 situation provided differing interpretations. Although it appeared possible to separate these two levels of legal behaviour in Israel and the Territories—in the sense that democratic practice functioned in the former but not in the latter—the reality was that the political situation psychologically affected the general Israeli perception of what was and what was not permissible to say and do.
A comparison of surveys carried out in 1975 and 1987,4—that is, before the rise of a Likud Administration and the Lebanon war, and afterwards—shows a significant increase in suspecting those who have contrary views on questions which ultimately touch on national security.
Do you suspect people who say that there is discrimination against 5% 17%
Do you suspect people who say that they favour talks with the PLO? 19% 43%
Do you suspect people who favour the establishment of a (Palestinian) 22% 45%
state on the West Bank?
Whilst tolerance of those who have a different approach to national security may have decreased, a majority of Israelis in the 1987 survey felt that abiding by the law of the land—no matter how unpalatable that law might be—was still of considerable importance.
It is our duty to obey a law adopted under proper procedure 52%
Where a law goes against a person’s conscience, he/she should be 68%
required to obey it or else all laws will lose their meaning.
Laws considered wrong should be obeyed, but we should work to 66%
It would also be incorrect to blame Likud administrations for the feeling that civil rights in Israel have become less important—especially since there have also been trends which suggest that the opposite is true. It could be argued that the Likud Ministers of Defence, Moshe Arens and Ezer Weizmann, were actually far more liberal than their Labour counterparts. It should be recalled that pre-1967 Mapai, with its nineteenth-century ideological baggage, placed civil rights on a low rung on its ladder of priorities. It was the cause and the party above everything else. Paradoxically, the coming of Likud permitted a lessening of the rigidity of such ideological regimentation.
A new generation of Israeli-born judges came of age. Unlike their predecessors they did not participate in the building of the land and did not feel that they should, as a matter of course, always defer to the executive power of the government and the military The judiciary came to believe that the overriding usage of anti-terrorist legislation as a permanent feature by the executive projected potentially dangerous prospects for the rule of law. In 1948, many justified its original usage because there was a genuine danger to Israel’s existence. Twenty years later, this was no longer the case. Since 1967, there has been a greater willingness of the judiciary to question executive wisdom— especially when it came to interpretations of national security which resulted in the subsequent, curtailment of civil rights. Such willingness to challenge the executive also extended to the press.
The Yom Kippur War nearly ended in disaster for Israel despite prior widespread knowledge that the Egyptians were conducting a huge build-up of their forces. Israeli journalists and editors refrained from reporting this news to the public on the advice of the military. They accepted that their adherence to “national security” on this occasion was on a higher plain than their journalistic duty to inform their readers. They accepted the wishes of the executive not to publish scare-mongering stories with the result that the citizens of Israel, the Government and the Army were caught by the surprise attack of the Egyptians in October 1973. The lack of preparedness brought Israel almost to the brink of defeat. The upshot of the debacle gave credence to a new form of adversarial journalism which continually questioned people in positions of authority. This accounts in part for the detailed investigation and exposure in the Israeli press of government policy and actions during the war in Lebanon in 1982. New newspapers and magazines such as Hadashot, Koteret Rashit and Monitin did not join the Editors’ Committee of Israeli newspapers which occasionally self-censored themselves collectively on the advice of the military or government.
A central consequence of Israeli failures during the Yom Kippur War was the appointment of the Agranat Commission of Inquiry into the failure of the military and the politicians to anticipate the war. It condemned the military but evaded the question of political responsibility. Public protest and criticism forced Golda Meir’s resignation as Prime Minister and Moshe Dayan’s exit from the political scene until 1977. It marked a turning point where those who wielded executive authority were held accountable for their decisions and not given the benefit of the doubt simply because of their position.
Jewish Quarterly Spring 1991