It is not difficult to assert that the case law of the Supreme Court of Israel is infected with racism. The judgment in the
'Abidat case' [1] is, to my mind, one of the blatant examples of this. It is interesting that this judgment was rendered by none other than Justice Ayala Procaccia who is considered a liberal among the justices of the Supreme Court. In the judgment on the Citizenship Law
[2] (for example) Justice Procaccia took a very strong stance against the danger of sweeping treatment of an entire population as an enemy, an approach expressed in Justice Cheshin’s judgment in the same case. This is what she wrote there:
We must beware of the lurking danger that is inherent in a sweeping violation of the rights of persons who belong to a particular group by labelling them as a risk without discrimination, and of the concern involved in using the security argument as a ground for a blanket disqualification of a whole sector of the public. There are cases in history in which this happened, and later constitutional thought recognized the mistake in this, a mistake that is clear on the face of it.
Returning to the ‘Abidat case: the case concerned the question of the detention until completion of proceedings of three Palestinians (most likely residents of East Jerusalem) who were accused of being activists in the Popular Front for the Liberation of Palestine (PFLP). Among the charges: transferring money for holding a party for matriculation graduates which was held at the YMCA institutions and being present at said party; transferring money for buying gifts for prisoners; involvement in food distribution to the families of prisoners and to bereaved families; an attempt to find an apartment for opening a club and activities relating to the PFLP’s campaign for the Palestinian Authority Council: participation in meetings and making speeches in a conference.
The question before the court was whether such activity, which is obviously civilian activity, renders the defendants so dangerous that they must be kept behind bars until their guilt is ascertained. Procaccia answers affirmatively and even denies the possibility of transferring the defendants to a detention alternative (such as house arrest). She denies the very distinction between civilian and military action when a “terrorist organization” is at issue. It is worthwhile to quote her verbatim:
The specific contexts of the various activities do not bear a special weight by themselves, however, upon their accumulation they draw a picture of methodic activity within the organization's actions, and indicate deep involvement in reaching its objectives – which are implementing terror against Israel aiming to harm the security of the State. It is true that financial aid for a party of high school graduates or distribution of gifts to needy families, or assistance to a released prisoner may be, on their own, "innocent" actions in other contexts. However, in the context of the subject matter, these actions are related to the leadership of a body that, alongside with its civil activity has a military-terrorist side intended for reaching the goal of terroristic fighting, aimed to cause personal injuries to the citizens of the State of Israel. On the face of it, the organization's civil activity is intended to aid the military activity and to serve as a basis and infrastructure for it. It has not been otherwise proven to us. Therefore, it is not possible to isolate the civil function from the military function in the organization's activity and any distinction and separation between them is artificial and wrong. The civil function feeds the military purpose, and the military purpose provides the cause and purpose for the civil financial activity and for the transfer of funding required for the organization's activity, including acts of aiding the needy, and performing social activities for the organization's youth, in order to encourage their involvement and belonging to the organization (M.Cr.M 7385/03 Aghabria Vs. The State of Israel; M.Cr.M 7223/03 Sheik Ra'ed (Ben Sallah) Mahajna Vs. The State of Israel).
The Popular Front's activity endangers the wellbeing of the citizens of the State. This activity is very close to the homes of the citizens of Israel and it poses a direct and severe threat to their lives and wellbeing. The State and the legal system must protect the public's wellbeing from the danger posed by the terrorist organization, and one of the ways to do that is through the disarming of the organization's leaders from their power and status, and weakening their ability to promote the organization's activity - whether directly, on the military level, or indirectly, through development of the civil arm of the organization's activity.
At the very beginning of her opinion, the justice chooses to refer to the PFLP through a very narrow perspective. From this perspective, it is an organization whose entire purpose is harming Israel’s security. Allegedly, the harm to Israel’s security is, as far as the organization is concerned, a purpose unto itself, a malicious caprice, an arbitrary obsession, rather than a means to an end – for example, the liberation of Palestine. However, from an ethnocentric point of view, the end must be focused on the State of Israel. Any question which searches beyond whether something is “good or bad for the Jews” is not only irrelevant – it is insignificant. The sun shines in order to light our day, the wind blows in order to cool the sweat off the brow of our soldiers, the cows give milk not for their calves but in order to nurture us and the PFLP exists only to harm our security.
Moreover, Justice Procaccia places all of the actions of the PFLP in one basket, terrorism which is directed at the lives and safety of the citizens of Israel. Any other form of resistance is erased as if it had never existed.
When one observes through an ethnocentric lens that sees Palestinian organizations as an enemy and nothing more, any agenda which does not relate to Israel is automatically erased. Internal Palestinian issues, social, political, economic views – all of these vanish. The movement’s civilian actions have only one purpose – to serve violent attacks against Israeli citizens. This is also the entire cause and purpose of the partisan actions of the PFLP. This is akin to the claim that since HaShomer HaTzair and Benei Akiva [youth movements] educate for service in the Israeli military, indeed, their entire raison d’être is to provide infrastructure for the bombing of civilians in the Gaza Strip.
The judgment commits the sin of flattening the civilian-partisan activity of another nation and reducing it to activity the entire raison d’être of which is creating the infrastructure for murderous attacks against Jews. This is the exact same stereotyping approach against which Procaccia cautions in the Citizenship Law judgment; the same approach which refers to people exclusively under the label of “enemy” and ignores every other aspect of their personality and activities. This is the same approach that, under the label “enemy” and under the cover of sophisticated arguments, turns people and every human action they into a danger. This is how family life turns into a danger to the public; this is how community action for youth turns into a grave danger and a criminal act.
This ethnocentric, labeling and flattening approach has a name: racism.
Justice Procaccia’s decision is not only infected with racism. It turns the court into an instrument at the hands of the administration in an ugly attack on Palestinian civil society. A large part of Palestinian civil society and almost all Palestinian political bodies have some kind of affiliation to Palestinian organizations which are defined as “terrorist organizations”. Even when no such affiliation exists, indeed it does in the eyes of the Israel Security Agency, which like Justice Procaccia looks at everything through the lens of the national conflict. The practical outcome of this is that the entire civilian and political lives of the residents of the Territories are perceived as no more than a means, with no purpose, as far as the Palestinians are concerned, other than creating an infrastructure for terror attacks against Israelis. When repressing Palestinian civil society, the administration can flaunt the legitimacy given by the Supreme Court to the cancellation of the distinction between civilian and military activity.
In the report:
Guilty – Membership and Activity in Unlawful Associations Military Courts 2008, Machsom Watch describes how this policy is reflected in the military courts. People whose entire list of charges comes down to activity which is clearly civilian, are defined as a danger to the public, so much so, that they must remain in custody until completion of proceedings, until they are sentenced. Owing to the foot-dragging prevalent in the military courts, the prolonged detention until the end of proceedings forces defendants to take plea bargains. Thus, for example, the report speaks of a 53-year-old woman who was sentenced to 18 months’ imprisonment and a 15-month suspended sentence for running a daycare center and providing counseling at a women’s association for the advancement of women. The association, which runs a school and a medical center, has worked unhindered for seven years, even after the military commander signed an internal order declaring it an illegal organization: signed, but never bothered notifying the parents or the daycare teaches of this fact, nor taking any other immediate measure. Another case described in the report is of a money changer who was imprisoned for over a year after being charged with changing currency for a charity in Ramallah. Others were charged and convicted for running for a seat in the Palestinian legislative council or a local authority, in elections carried out with Israel’s consent and under international supervision.
It is difficult to read Machsom Watch’s report and not feel that these are phenomena that characterize a totalitarian dictatorship seeking to crush any civilian organization or political movement which does not cooperate with the ruler. How can such a dictatorship exist under the auspices of an allegedly democratic country among whose justices one can find liberal, progressive women such as Justice Procaccia? Here is where the efficiency of racial thought, of labeling the other as enemy and seeing him only through this lens is revealed. For indeed, then it seems that all the actions of the other (civilian and military) are intended solely to cut the lives of men, women and children and, in any case, the oppression of the other is nothing but a vital means of defense. The only matter left to inquire is which came first: dictatorship or racism.
November, 2009.
Att. Yossi Wolfson
The author is an attorney and human and animal rights activist. Former employee of HaMoked.
[1] M.Cr.M 6552/05
‘Abidat v. State of Israel (published in Nevo) (2005).
[2] HCJ 7052/03
Adalah v. Minister of the Interior (published in Nevo) (2006)
