In Defense of Dignity and Freedom

After 43 years of occupation, Israel has lost the right to be called a state of law

Ilana Hammerman
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Ilana Hammerman

Not long ago, a foundation by the name of The Legal Forum for the Land of Israel asked the attorney general to open a criminal investigation against me for violating the Law of Entry to Israel because I took three Palestinian young women out for a day of fun in Tel Aviv ("If there is a heaven," Haaretz Magazine, May 7 ).

Ilana Hammerman with a Palestinian girl in Tel Aviv.

I am not a jurist nor am I well versed in criminal law. But as an ordinary citizen who is required to respect the laws of her country, I consider myself entitled, even obligated, to examine - including by means of common sense - the justice and morality of the laws that apply to me, and particularly with respect to other people who are subject to the laws of my country. It is on this basis that in recent years I have violated some of the laws of the State of Israel, and publicly announced that I was doing so.

I did not do this in rash defiance, but rather after much thought. Out of a need, that has become ever more pressing in the last years, to raise certain essential issues for in-depth public discussion in Israeli society - a discussion that will not relent when it comes to the word "law." Because a law formulated by political authorities should never be sanctified, anywhere. Not even in regimes that were elected by the votes of a majority of their citizens. The law must continually be reexamined. Indeed, we Jews know better than anyone how the road to the human abyss is paved with evil legislation that was properly enacted and accepted by the majority.

This discussion is necessary not only because of bitter experience, and in the name of justice and common sense, but also because of the basic knowledge that every citizen of a democratic state is obliged to possess, concerning both national and international laws.

The essential things that I believe must be discussed all have to do with Israel's military control of the territories, which were conquered in war 43 years ago, and with the hundreds of laws and injunctions that have derived from, and have been legislated by virtue of this control.

The Basic Law: Human Dignity and Freedom was enacted in Israel in 1994. It includes the following stipulations: There shall be no violation of the life, body or dignity of any person; there shall be no violation of the property of a person; there shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise; all persons have the right to privacy and to intimacy; there shall be no entry into the private premises of a person who has not consented thereto; and, all persons are free to leave Israel.

All of these rights are denied the civilian Palestinian population living in the occupied territories under Israeli military control: Their lives, dignity and property are violated; their privacy and intimacy is not respected; and their private premises are entered without their consent. But, above all, their liberty is restricted: They are not free to leave their country, to move within it or to choose their place of residence at will. They are denied their liberty by arrest and imprisonment. Indeed, since 1967, approximately 800,000 Palestinians have been arrested and imprisoned for various periods of time by the Israeli military jurisdiction to which they are subject.

All of these restrictions and violations of rights - compounded by confiscation of land, checkpoints, fences and walls, and a truly labyrinthine bureaucracy surrounding receipt of entry and exit permits - all of this leads to serious violations of another human right promised to citizens and residents of Israel: "the right to engage in any occupation, profession or trade," which is enshrined in the Basic Law: Freedom of Occupation (1992 ).

How, for example, can a Palestinian farmer engage in his livelihood if all his land has been seized for the purpose of building and expanding an Israeli settlement? How can a Palestinian construction worker engage in his profession if his workplace is in Israel and the closures that are continually imposed on the occupied territories deprive him of the possibility of getting there? How can hundreds of thousands of other laborers "engage in any occupation" if there is no job market in the areas where they live, and the Law of Entry to Israel prevents them from getting to places where there is employment?

The Knesset has bestowed upon these two basic laws supra-legal status - meaning the courts have the authority to nullify any law that contravenes them. Section 12 of the Basic Law: Human Dignity and Liberty states: "This basic law cannot be varied, suspended or made subject to conditions by emergency regulations; notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Administration Ordinance, 5708-1948, emergency regulations may be enacted by virtue of said section to deny or restrict rights under this basic law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required."

Having read this section very carefully, I reserve the right and duty to use common sense and to say that 43 years, and thousands of dead and crippled and hundreds of thousands of arrestees, do not fit the definition of a "proper purpose" or "for a period and extent no greater than is required."

I have the right and duty to know the conventions of international humanitarian law that apply to a country that holds territory by virtue of military conquest - and which are intended to protect the civilian populations of such territories - and to conclude from this knowledge that the State of Israel is violating key sections of those conventions.

Specifically, the state is permitting its citizens to settle in territories that it conquered; appropriating private land in these territories for its own needs and those of its citizens; destroying the assets of individuals, and of groups and authorities in these territories; and trying the residents of these territories in courts located within its own borders, and holding them in prisons within its territory, in contravention of the regulation stipulating that they be arrested and tried within the bounds of their occupied land. And above all: The state is persistently and systematically, in contravention of the international conventions, employing collective punishment against a civilian population.

On the basis of these facts, which do not require any legal expertise to understand, one can say that Israel has lost the right to be called a state of law. It has also to a large extent lost the right to be called a democratic state. Because the principle of democracy does not accord with a situation in which about seven million citizens who enjoy the right of free election can determine the fate of the lands and lives of about four million people whose liberties and civil rights are denied them by virtue of military control.

This is what must finally be debated in a frank manner in the State of Israel: Is Israel truly a state of law? Is it truly a democracy? Is it truly a state in which the basic rights of the person in it "are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free," as stated in the opening section of the Basic Law: Human Dignity and Liberty?

Furthermore, if it is not a democratic state or a state of law, what is the red line beyond which we can no longer continue to respect its laws and regulations without betraying our conscience, which requires us, just as the Basic Law of our country says, "to defend human dignity and liberty" - that is, the human dignity and liberty of every person, and not just the Jewish or Israeli person?



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