Hagai El-Ad

The shadows that grow shorter

The recent rejection by the Israeli High Court of Justice of the final petitions against Israel's Citizenship Law – which denies status in Israel to Palestinian spouses of Israeli citizens – was described as a 'watershed' ruling. But how exactly?

Justice Asher Grunis, the Israeli Supreme Court judge who’ll become the court’s next president in February, kept his opinion sufficiently short for the bluntness of brevity to stick between the lines. He opted to open his opinion, in the court’s recent decision to reject the petitions against Israel’s Citizenship Law, with the following succinct quote: “Human rights are not a prescription for national suicide.”

The quote, incidentally, is from decisions by Justice Aharon Barak, the court’s former president. Barak, as Grunis explained, based his words on a 1949 decision of the U.S. Supreme Court in Terminiello v. City of Chicago, where Justice Robert Jackson, of the minority opinion in that decision, warned his fellow majority justices that “there is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Grunis, who unlike Jackson 63 years earlier ruled with the majority opinion, wrote that he is “ready to… begin from the assumption that the law violates the constitutional right of the Israeli spouse to family life.” As for myself, I, in turn, am ready to begin from the assumption that the quotation Grunis selected to headline his opinion with is, in fact, a refined expression of his views on the matter.

National suicide or racial hysteria

Let us, thus, begin here: human rights are not a prescription for national suicide. The words are positioned as counterweight against a potential alternative decision, that of the minority opinion, that was rejected by the supreme judicial authority of the State of Israel. Putting it in language that is slightly less vague, here is what was (not) prescribed: to avoid what we, the majority judges, perceive as national suicide, we hereby decide to violate certain human rights – and we have the legal, and judicial, basis to do so.

One could ask about these concise words certain factual questions, such as: would the road not taken really have prescribed such a terrible danger amounting to “national suicide,” or is this just low-brow racial hysteria? Justice Melcer, also of the majority opinion, went in his opinion as far as invoking the dangers of the “use of nuclear energy and nuclear waste,” climate change, and the like. To each, one’s own inspirational sources to draw on in order to feed the nightmares. But despite the temptation to go on and roam these plains of “facts,” lies, and fantasies, we will not. Enter minority opinion Justice Edmond Levy with the following words: “outrageous statements… based in the enhancement of fears shared by many, that any insistence on the human rights of the Arab minority, is immediately entangled with an existential threat to Israel.” And after such words, there is nothing to add.

Or perhaps one may have asked legal questions, such as “whether the infringement caused befits the values ​​of the State of Israel” and whether it was “enacted for a proper purpose” and whether “its extent was no greater than required” — over two hundred pages of case law examining these questions in detail. Should we perhaps go on and roam these great plains of the limitation clause of Israel’s Basic Laws? But there is small temptation to do so in this case, for it is entirely based on the cooperation with a twofold lie. The judges carefully examine the legality of the security considerations behind the contested temporary order, while the actual reasoning is grounded not in security but in demography (as Levy puts it, ever so gently, “this insensitivity towards the infringed-upon rights becomes even clearer in light of the conclusion that the law has other purposes besides security”); and what about temporariness? “The Citizenship and Entry into Israel Law is not temporary at all, but is intended to escort us for many years despite its promising title.” To examine legality based on lies puts us over quicksand. There is no point to try and roam around here.

Or rather one can try and ask a different question. To go back to the title of Grunis’ decision and ask the following: this ruling, the fact that the Citizenship Law is now an indelible legal stain, the law of the land constitutionally sanctioned by an expanded panel of our most senior justices; this decision – what future does all of this prescribe us? As if the majority judges went ahead and stated: we will not prescribe you, the Jewish citizens of Israel, national suicide. But what exactly did they prescribe in their decision?

In Judge Levy’s words, here is what was prescribed: “a reality, whose salient result is the narrowing of the rights of [certain] Israelis but because they are Arab”; “an opening for additional legislative acts that have no place within the democratic concept”; a law such that “its legislation is a watershed event in the history of Israeli democracy.” And it has cast “a long shadow over the prospects of democracy in Israel to meet the challenges it could face thus far. Mistaken is the one who thinks, that over time even the majority, who through the power of its decisions this law came into the world, will be able to withstand the injury… for it will threaten to reach every Israeli as such, since it contains the power to undermine the foundation on which we all stand shoulder to shoulder.”

A mask of hypocrisy

When one’s breathing becomes heavy as a result of the ruling’s mask of hypocrisy, Judge Levy’s clear words are a breath of fresh air. And yet, in fact, what “watershed event” did we actually encounter here? For even before the Supreme Court’s decision in this matter not all Israelis stood equally, “shoulder to shoulder”. For “narrowing of the rights of [certain] Israelis but because they are Arab” is nothing new. In fact, this is how it has been since the state was established, with the facts well known, detailed, ongoing. Even when Judge Levy further writes that “minority discrimination because of who they are” is “something alien to our most basic concepts,” he surely knows that these beautiful words wither in the face of the ugly reality. Hollow words tend to lose their beauty, even if their author desires desperately to believe in them.

Thus, the decision’s “watershed” impact lies elsewhere. Not in the lengthening shadow that it casts over the “prospects of democracy in Israel to meet the challenges it so far has” — for it has not — but in the shadows that are becoming shorter, as the gap between beautiful words and an ugly reality narrows. In the declaration to all that the State of Israel really thinks of how essential it is “that human rights should be protected by the rule of law,” as the language of The Universal Declaration of Human Rights demands. Essential? Here is what is now essential, after the high court openly approved the trampling of human rights by virtue of a racist law; what is necessary is to protect human rights from being trampled “by the rule of law.”

This op-ed was originally published in Hebrew at ‘Haokets.’

About the Author
Former executive director of B'Tselem