January 9, 2013
Celebrating human rights in Israel
Because I suffered through an international human rights (IHR) class I took in law school, I used to joke that I hated human rights. In my learned view, IHR wasn’t law but a series of well-meaning declarations written and signed by diplomats on paid vacation in Manhattan. The meager IHR jurisprudence of various international courts paled in comparison to the intricate web of constitutional precedent and statutory protections that have developed around our Bill of Rights over the course of more than two centuries. Studying civil and criminal rights law was inspiring and challenging. Studying human rights law was like reading a phone book.
I never doubted that people are endowed with rights — in practice, however, this endowment only seemed relevant to the extent it was codified into the laws of a state. The United Nations could keep their declaration on human rights — I had my civil rights, chief among them the due process of law, guaranteed by the Constitution and enforced by the courts. Standing on the shoulders of giants, I was content to simply enjoy the view. It never occurred to me that the giants were once humans — lawyers and activists who took up unpopular causes with nothing but lofty ideals for support.
Israel, where I live today, has no bill of rights. The Basic Law: Human Dignity and Liberty lays out certain general principles (e.g., “All persons are entitled to protection of their life, body and dignity”) and affords them with presumptive constitutional authority, but they can still be modified or overturned by an ordinary act of parliament. Although Israel’s Supreme Court, notably under the leadership of former Justice Aharon Barak, has read several substantive rights into the Basic Laws, without a constitution and without the benefit of comprehensive legislation like Title VII of the United States Code, these rights are still precarious.
Substantive civil rights in Israel are thus yet few in number and far from enshrined. Even more glaring is the absence of absolute procedural guarantees; though the right to due process is recognized in Israeli jurisprudence, the particulars remain vague. Unfortunately, the country’s infamous ad hoc approach to everything from geopolitics to street parking extends to the legal process here. Even where courts have laid down certain procedural protections, police and other enforcement agencies often find ways to avoid adopting them.
Eventually, civil rights (by which I mean the human rights codified in the laws of a state) will be as fundamentally entrenched in Israeli law as they are in the United States. In the meantime, the importance of vibrant discourse, zealous advocacy and active jurisprudence in the field of human rights is imperative to the continuing health of the state. Yet when it comes to human rights in Israel, many people otherwise committed to civil liberties feel conflicted.
Part of this conflict is born of IHR’s highly politicized branding, especially with regard to Israel. But the intensity with which human rights and human-rights workers are vilified by the current Israeli government’s domestic and international supporters suggests something more fundamental than opposition to the IHR brand.
More frightening, and arguably more effective in shaping public opinion on IHR, is the false perception that the only beneficiaries of human-rights work in Israel are Arabs, coupled with the embattled notion that if you’re for the Arabs, you’re against the Jews. In today’s Israel, telling people you’re a human-rights activist is like telling them you’ve got a job house-sitting for Hassan Nasrallah. The stereotypes are not only wrongheaded and misleading; they also obscure the real tensions inherent in the relationship between the state and the individual in the context of rights.
The true substantive core of the IHR conflict is the need to balance the rights of individuals against the interests of the state. Because rights are guaranteed by the state, it is natural that it (or one of its agencies) is the respondent in the vast majority of legal petitions seeking to enforce such rights. In Israel, most rights petitions are filed by civil society organizations such as the Association for Civil Rights in Israel (ACRI), either on behalf of an individual or on their own behalf (these organizations have standing to prosecute many types of rights claims in Israel). A petition called “ACRI vs. The Ministry of Defense” gives the impression that the civil organization is anti-government, anti-state or even anti-Israel.
But nothing could be further from the truth. The true party in any human rights litigation is not the petitioner but society, present and future. At issue isn’t just a prisoner who hasn’t been informed of the charges against him, a village wrongly denied access to water or a protestor whose freedom of speech has been unduly stifled. At issue are the principles behind these actions.
Human-rights advocates were the ones who urged an Israeli court to rely on the IHR principle of “the child’s best interest” in a human rights case involving children. That principle is now an accepted part of Israeli law, applicable in all kinds of cases involving children. And human-rights advocates were the ones who sued the Israel Lands Authority in 1995 on behalf of an Arab-Israeli citizen who was told flat out by the regional council that he could not buy land in a “Jewish” town because he was an Arab. The decision in that case is now the basis for the principle that prohibits discrimination in the allocation of land, whether by the state or by third parties, and protects a diverse range of people, including Asian Jews, single parents, disabled people and same-sex couples from being excluded from communities.
On Dec. 7, I had the privilege to join thousands of people at the annual Human Rights March in Tel Aviv. The march celebrates myriad organizations and initiatives in Israel that view human rights as the moral and social foundation for change. Together we communicated a united front — to Israel and the world — that a large and thriving community is dedicated to advancing human rights for all people in Israel and the Occupied Territories.
Holding the state’s feet to the fire is not a method of attacking it but rather a way of strengthening it. The economic and social health of a country depends heavily on the predictability of the law and its guarantees of equality. Although the existing jurisprudence affords protection for our fundamental civil rights, the extent to which government agencies routinely circumvent their implementation undermines their substance. Until civil rights law is firmly enshrined in statutory and constitutional jurisprudence, Israel’s civic organizations will continue relying on human rights law to enforce and entrench the basic protections that millions of people around the world take for granted. Case by case, Israel’s human-rights organizations are building the infrastructure of a legal system crucial to the ongoing development of the country.
Marc Grey is the international press liaison at the Association for Civil Rights in Israel. He is a graduate of Stanford Law School.