Palestinians Are Unheralded Guardians of Israel

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Palestinians inspect the damage to the Islamic Jihad club after an Israeli air strike in Beit Lahiya, northern Gaza Strip, early Thursday, Aug. 25, 2011.Credit: AP

It is the Palestinians who are struggling with fervent consistency for Israel as a democratic, law-abiding state, and the day will come when the Jews will thank them for their efforts.

Part I: Definitions

“Law” – Not in its technical, formalistic sense (which would refer to the existence of written laws that the majority legislates to oppress those who are not in the majority, and the issuing of military orders using regular legal jargon), but rather in its universal, humanistic sense, based on the intrinsic fundamental equality among human beings.

“Struggle” – The investment of thought, understanding, knowledge, time, human connections, varied human activities and financial resources to bring about social change in the spirit of the principle of equality.

“State” – The institutions of a territory within declared and known borders, which are to serve those living in it. Hegemonic classes of various kinds have stripped the term of its technical meaning and have given the term “state” fetishistic meanings (the sanctity of the land) and fascistic meanings (a deity that society serves and that demands human sacrifice). Israel refuses to declare what its borders are, which therefore brings us to:

“Israel” – In its sense as a society that we assume wants to continue to exist in the future, that thinks of its children and grandchildren.

“Palestinians” – Arabs, the descendents of those who lived in the land between the Jordan River and the Mediterranean Sea before Israel’s creation in 1948 and before the 1917 Balfour Declaration, whether they were born in the land or in exile.

“Jews” – Those whom the laws of the German Third Reich would have sent to Madagascar or Auschwitz.

Part II: Explanatory Notes

On a weekly basis, Israel’s High Court of Justice considers petitions from Palestinians – whether residents of the territories occupied in 1967 or Israeli citizens. The petitioners are Palestinian or Israeli organizations and their representatives, who are Israeli lawyers (either Palestinian or Jewish).

Space does not permit providing the head-spinning detail regarding all the petitions and the legal and bureaucratic obstacles encountered along the way. But in short, the petitions provide, in the words of Hillel in the Talmud, “That which is hateful to you, do not do to your fellow.”

A single example will suffice in the form of a petition drafted by attorney Fatmah El-Ajou of the Adalah Legal Center for Arab Minority Rights in Israel. It was filed in September 2012, after several frustrating years of requests and clarifications, during which it became clear beyond doubt that Israel was employing a variety of means to prevent Palestinian residents of the Gaza Strip from filing damage claims for harm they had suffered caused by the Israeli army. If claims were filed, the state would foil their ability to obtain preliminary legal proceeding before a judge. Such means have also been employed against West Bank residents, but in Gaza there has been the added element of the state’s blanket prohibition barring Gaza residents from leaving the Strip.

An internal document from the State Prosecutor’s Office reflects the fact that the office serves two roles: It is the legal representative of the defendant – the state – and in that capacity looks for any possible way to defeat claims of harm to innocent civilians. But it is also the arch-prison guard who decides who are the tiny minority that are allowed out of the Gaza Strip, while the majority are not.

Former State Prosecutor Moshe Lador ordered his legal staff to work to allow Palestinian witnesses to leave the Gaza Strip to give testimony when their absence would harm the state’s case in defending damage claims. In instances in which the witnesses’ absence would not harm the state’s case (meaning that it would help the claimant), he ordered his staff to be flexible: The witnesses needn’t appear and needn’t meet with their lawyers. They needn’t require that their powers of attorney be signed in their lawyer’s presence. We’ll manage without all those preliminaries.

And wonder of wonders, because of the disruption of these preliminary procedures, judges have been suspending legal proceedings on the petitions or were dismissing them altogether. (Sometimes the state prosecutor’s representatives have even encouraged the judges, mentioning that their predecessors had dismissed such complaints.)

In a petition seeking to eliminate obstacles and discriminatory practices, El-Ajou quoted former Supreme Court Justice Mishael Cheshin on the right of access to the courts: “It is of loftier importance than a fundamental right Barring the way to court undermines the raison d’etre of the judicial authority. And harm to the judicial authority means harm to the state’s democratic foundation.”

On several occasions, the State Prosecutor’s Office and Military Advocate General have boasted about Palestinian accessibility to the courts in Israel to convince the goyim not to try Israel on war-crime charges.

Up to this point, the goyim have been convinced by the declarations and assurances that all avenues of justice can be pursued to their fullest in Israel. But instructions such as Lador’s and the obstacle-strewn path to the court house, as the petition spells out, prove the extent to which the road to a Jewish and anti-democratic state is strewn with lies.

Despite the fact that over the years, High Court justices have given deference to the state’s security excuses, with the harm they inflict on democracy, the Palestinians continue to file their petitions. They have not yet lost hope – that the High Court in particular and Israelis in general will come to their senses and turn very lofty words into deeds, for the sake of the future and well-being of all of those who live in our land.

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