Israel's "demographic demon" in court
JONATHAN COOK
Middle East Report Online, 1 June 2006
A low-key but injudicious war of words briefly broke out between Israel's two most senior judges in the wake of the May 2006 decision by the Supreme Court to uphold the constitutionality of the Nationality and Entry into Israel Law. A temporary measure passed by the Knesset in July 2003, the law effectively bans marriages between Palestinians in the Occupied Territories and Israeli citizens.
The two judges' squabble was an indication of how crucial each believes the statute's permanent addition to or removal from the books will be in determining Israel's future in the new era of separation from the Palestinians that Prime Minister Ehud Olmert hopes will dawn as he seeks unilaterally to determine his country's final borders. Will Israel be a state that is ruthless and unselfconscious about protecting its Jewishness, or one that maintains at least a pretense of respecting universal rights of citizenship?
Separation, physical and emotional
The law has been roundly condemned in Israel and abroad as racist because it amends a founding piece of legislation -- the 1952 Nationality Law -- in order to prevent Palestinians from gaining any residency or citizenship rights inside Israel upon marrying an Israeli citizen. In effect, Palestinians have been barred from joining their spouses and offspring in Israel.
The Israeli government has argued the need for such a sweeping ban on security grounds: It says a small number of Palestinians has used residency as a way to assist in terror attacks inside Israel. Before the Supreme Court, the government cited a figure of 25 such Palestinians who have been questioned on security-related matters, though it has not said how many of them were involved directly in attacks or convicted of an offense.
The law has mainly harmed the interests of Israel's large Arab minority -- more than one million Palestinian citizens -- because they, rather than Israeli Jews, have a history of marrying Palestinians from the Occupied Territories, often neighbors or distant relatives living in towns and villages that, until Israel's building of the fence-cum-wall, straddled the Green Line, the pre-1967 border that was effectively erased with Israel's occupation of the West Bank and Gaza.
Compounding this injustice, the law has also made any kind of life together for such couples almost impossible because the Israeli spouse is banned under military regulations from entering Palestinian-controlled areas of the West Bank and Gaza Strip. The law has created an emotional separation between Palestinians with Israeli citizenship and Palestinians in the Occupied Territories that parallels the physical separation established by the wall.
In May 2005, the government made a small adjustment in an attempt to dampen protests from global organizations such as Amnesty International and Human Rights Watch. The interior minister was given the power to approve temporary residency permits for Palestinian male spouses over the age of 35 and female spouses over 25. However, the great majority of cases -- which involve younger couples -- remain unaffected. Even those spouses technically entitled to residency have limited rights to work and receive medical and welfare benefits, and their applications can be refused on security grounds without explanation or right of appeal.
A "technical loss"
The Supreme Court, which has been faced with a series of suits from human rights groups targeting the law, finally issued its verdict on May 14. Six judges sitting on an expanded 11-member panel rejected the petitions and upheld the statute. The closeness of the vote was a reflection of the deep divisions separating the two camps, one led by the chief justice, Aharon Barak, and the other by the deputy chief justice, Michael Cheshin, both of whom are quickly approaching retirement.
In his minority report, Barak argued that the law violated the right to a family life and the right to equality that are both implicit in Israel's Basic Law, the nearest thing Israel has to a constitution. He also claimed that, in view of the indiscriminate nature of the ban, the damage done to family life outweighed security justifications. The chief justice concluded that the temporary law, which is due to expire at the end of July, should be extended for a further six months while the state redrafts it.
Cheshin, on the other hand, denied that Israeli citizens enjoy a constitutional right to bring a "foreign national" into Israel, contending that the state has the right to protect the "face of its society." Furthermore, he claimed that because Israel is at war with the Palestinians, it is a proportional measure to deny entry to enemy nationals. He compared Israel's position in trying to prevent entry of Palestinians to that of other countries facing infiltration from enemy states, citing as an example Britain's blocking of immigration from Nazi Germany. This comparison implied that Cheshin believed the Palestinians were not only enemy nationals, but also from an enemy state (an odd formulation for referring to Palestinians, as several commentators would soon point out). He concluded: "[It] is the right -- moreover, it is the duty -- of the state, of any state, to protect its residents from those wishing to harm them. And it derives from this that the state is entitled to prevent the immigration of enemy nationals into it -- even if they are spouses of Israeli citizens -- while it is waging an armed conflict with that same enemy."
From early on in the hearings, Cheshin demonstrated little sympathy for the families affected by the law. In February, he observed to lawyers that an Israeli who married a Palestinian "should live in Jenin," a Palestinian city in the West Bank besieged by the Israeli army and which Israeli civilians are banned from entering.
The majority view was termed "shameful" by the liberal daily Haaretz newspaper, and several columnists elegantly picked Cheshin