Commission of Detainees and Ex-Detainees Affairs, filed a petition to the SCT. Common to all of these cases is the arbitrary use of state power.

The Supreme Court further entrenches discrimination

The Supreme Court continues to be highly averse to delivering rulings and/or favorable  rulings  in human rights cases and other controversial matters. The court often pressures the parties to reach agreements between themselves in clear cases of rights violations, and/or delays hearings and the issuance of decisions in certain cases for many years, allowing rights violations to persist. The SCT also frequently dismisses cases on procedural grounds or fails to respond in written decisions to arguments of clear discrimination, both of which result in the sanctioning of discriminatory and racist policies.

For example, the SCT avoids issuing rulings that may draw criticism of it from right-wing MKs and the mainstream Jewish Israel public by cancelling petitions on procedural grounds of “prematurity” or “un- ripeness”. The court took this route in the case of petitions challenging the “Nakba Law”, which cuts state funding to entities that commemorate the Nakba (the Palestinian catastrophe), and the Admissions Committee Law, which authorizes such committees to reject candidates to live in small towns built on state land on the basis they are “not suitable for the social life of the community.” However, the SCT’s approach in these cases disregards the fact that such laws have a “chilling effect” even before their application in concrete cases. Further, the court’s insistence on ruling only after a specific individual case has been brought before it changes the nature of the determination from one of principle to that of an individual case of discrimination, which may be resolved without dismantling the discriminatory policy, law or system itself.

Furthermore, issuing decisions without ruling on the substantial issues of discrimination they raise has resulted in the sanctioning of discriminatory and racist policies. An example is the SCT’s decision in 2014 to approve regulations that ban Palestinians from Gaza from entering Israel in compensation cases that they brought against the Israeli military. This ban on the entry of Palestinian complainants and their witnesses repeatedly led to the dismissal of these cases in the lower courts. However, in its decision, the SCT did not address the grave rights violations of the complainants, including of their rights to compensation for damages. Instead, Justice Rubinstein stated that the case should not be viewed “from a constitutional perspective, but a practical perspective…” adding that the filing and pursuit of lawsuits must not “harm security”. While the court repeatedly stated that Israeli courts were open, the AG was unable to provide one example of a case, pursuant to the regulations, in which a Palestinian from Gaza had been able attend his/her court hearing. The court’s judgment, in fact, denies Gaza residents the right to access courts in Israel in order to gain an effective remedy.

Another recent example is the SCT’s decision to approve the destruction of the Bedouin village of Umm al-Hiran. Here, the court was asked to rule in a case involving blatant racism, of Bedouin villagers being forcibly displaced from their land in order to build a Jewish town on it. However, the court never legally discussed the core issues of discrimination raised in the petition, but instead chose to focus on the technicalities of the planning process. Its decision approved the state’s racist plan to move the residents to another Bedouin town, despite the grave violations of the core constitutional rights of Umm al- Hiran’s residents.

Attacks on the Supreme Court and the separation of powers

The SCT itself is a key target of those who wish to undermine the principles of the separation of powers and judicial independence in order to pursue their own political agendas unhindered. Knesset  members, including the Justice Minister Ayelet Shaked, have introduced legislation that attacks the court and seeks to alter its composition. They include bills aimed at: restricting the authority of the Supreme Court to review and strike down laws; privileging Jewish religious law within the judicial system; and altering the system followed by the Judicial Appointments Committee.  Further,  the Justice Minister is resorting to the tactic of intervening directly in the state’s responses to the Supreme Court in petitions that relate to the Israeli settlements. Her intervention has involved hiring outside private legal counsel to redraft the state’s official responses in such cases, bypassing the professional legal teams in the State Prosecutor’s and AG’s Offices. The Justice Minister’s unprecedented intervention is intended to further the interests of the settlers, despite the international law violations entailed, and to promote positions that go well beyond current Israeli laws and legal principles.

IV. Settlements and the Annexation of the West Bank

Over the past year, Members of Knesset have introduced numerous bills designed to annex parts of the West Bank to Israel, via the application of Israeli domestic law to these areas, similar in manner to Israel’s annexation of East Jerusalem in 1967. The annexation of these areas, on which hundreds of thousands of Jewish Israeli citizens have settled, is taking place unilaterally, outside any process of negotiations with the Palestinians.

A major example is the Law for the Regularization of Settlement in Judea and Samaria – 2017 (“Settlement Regularization Law”), passed by the Knesset on 6 February 2017. The law is designed to de facto expropriate land from Palestinians and to allocate it to Israeli settlers. It thereby “regularizes” – from the perspective of domestic Israeli law – settlements in the West Bank that were built on privately-owned Palestinian land. It instructs the authorities in the area to appropriate the land, or the rights to use and hold it, if there has been “settlement” on it that was carried out “in good faith” or “received the state’s consent for its construction” (Article 3). It dispossesses Palestinians in the West Bank of their private property and strips them of their basic rights, leaving them without the protection of international law, in the pursuit of an ethno-ideological goal.

At least 20 bills seek to annex Palestinian land to Israel by applying Israeli law to specific settlements, settlement blocs or other areas of the West Bank. They include the Greater Jerusalem Bill to annex settlements around Jerusalem that contain over 230,000 settlers; the Jerusalem and its Daughters Bill to annex five settlements around Jerusalem; the bill to apply Israeli law to the Jordan Valley Settlements; the Negev Development Authority Bill (NDA) to apply the authority of the NDA to settlements in the southern West Bank around the Hebron Hills; the Jordan Valley Bill; the Ma’ale Adumim Sovereignty Bill; the Gush Etzion Bill; the Ariel Bill; and the Modi’in Bill.

Other bills currently at various stages of the legislative process seek to strengthen the position of the Israeli settlements/settlers in the West Bank, including the Income Tax Ordinance (Tax Benefits for Threatened Settlement in the Area [West Bank]), which grants tax benefits to the settlements on the grounds that they are located in a dangerous area, and the proposed Basic Law: Referendum (Amendments – inclusion of the West Bank), which stipulates that a decision by the government to cede any part of Eretz Yisrael must be approved by public referendum. A Bill to Amend the Law and Administration Ordinance (Legislation in the [West Bank] by Order) aims to apply all Israeli domestic laws to the settlements in the West Bank as a whole, as does an additional, similar bill. A bill to amend the 2005 Disengagement Law in the northern West Bank allows for the return of settlers to the area in order to revert to the pre-Disengagement situation. This latter bill is currently high on the Knesset’s agenda, alongside the Jerusalem and its Daughters Bill, and the Negev Development Authority Bill.

Many of these bills enjoy strong support from the pro-settler right, including the ruling coalition, which is in favor of annexing parts of the West Bank to Israel in perpetuity, leaving the Palestinians with disconnected areas under Palestinian Authority control, encircled by the settlements, settler roads, the Separation Wall, and other Israeli civilian and military infrastructure.

V. Shrinking Space for Human Rights Organizations

Legislation

The Israeli Knesset continues to enact discriminatory and anti-democratic laws restricting freedom of expression, opinion, assembly and association, many with a disparate impact on Palestinian citizens of Israel and Palestinian residents of the OPT, as well as the HROs that defend them. These laws and proposed bills demonstrate that civil society space in Israel is under serious threat.

The NGO Foreign Funding Transparency Law (2016) limits the operation and financing of HROs by requiring NGOs registered in Israel which receive more  than  50%  of  their  annual  budget  from foreign governments (not private sources) to declare their sources of funding in all publications, including letters to government and public officials, and reports to the registrar of Non-Profit Associations. As 25 of the 27 organizations that currently receive more than half their budget from foreign governments (including the EU and EU member states) are HROs, it is clear that the law targets these groups. Further, Prime Minister Netanyahu has stated on a number of recent occasions that he intends to pass legislation that would cut all foreign government funding to NGOs, another clear move to try to close down HROs working to end the occupation and to achieve equality for Palestinian citizens of the state. The Israeli media also reported that the government coalition, under Netanyahu’s leadership, is planning to establish a parliamentary committee of inquiry into the issue of foreign government funding received by NGOs in Israel; the Knesset’s Legal Advisor nixed this inquiry. Currently-tabled bills include legislation that seeks to deny tax-exempt status to NGOs that criticize the State of Israel abroad, and to outlaw groups seeking to try Israeli soldiers in international courts.

In addition to proposed bills and inquiries into HROs, other laws use various means to further stifle criticism of the government’s policies. For example, the new Law Banning BDS Supporters from Entering Israel, enacted by the Knesset on 6 March 2017, bans the entry of foreign nationals and of Palestinians from the West Bank if they or the organizations they belong to have publicly expressed support for a boycott against the State of Israel or against Israeli settlements. It violates most basic tenets of democracy by making political opinions a consideration that may prevent non-citizens from entering Israel and the OPT. The EU and more recently the Netherlands, Ireland and Sweden have reaffirmed  that the right to boycott, advocate for change, express non-violent opinions and similar activities are protected by the rights of freedom of expression and assembly.

Previously enacted laws that have a “chilling effect” on speech include the Anti-Boycott Law (2011), which makes the public promotion of boycott by Israeli citizens and organizations against Israeli institutions and illegal settlements in the West Bank a “civil wrong” or an actionable tort. It enables parties targeted by boycotts to sue those who call for boycott. The Nakba Law (2011) authorizes the Finance Minister to cut state funding or support to an institution if it holds an activity that rejects the existence of Israel as a “Jewish and democratic state” or commemorates “Israel’s Independence Day or the day on which the state was established a day of mourning.” Further, the Anti-Terror Law (2016) contains broad and vague definitions of “terrorism” and “terrorist organizations”, which may be exploited to criminalize political activities by Palestinian citizens of Israel in support of Palestinians living under occupation in the West Bank and Gaza Strip. The law establishes new criminal offenses such as public expressions of support or empathy for terror organizations, and significantly increases the potential sentences for such offenses, reclassifying the political activities and expression of Palestinians Arabs in Israel – including those of a social, humanitarian and charitable nature – as acts of terror.

De-legitimization campaigns by right-wing groups

Right-wing groups claim that HROs’ engagement with international human rights mechanisms, including UN bodies, is by definition a form of de-legitimization of Israel by “foreign agents” or “traitors”. Groups involved in smear campaigns against HROs include the NGO Monitor, Im Tirtzu, and the Institute for Zionist Strategies. The NGO Monitor is among the most vocal opponents of HROs. The group electively campaigns against HROs, including Adalah, and directly targets their donors abroad, accusing them of engaging in “anti-Israel propaganda” abroad. The NGO Monitor, while portraying itself as a neutral watch-dog, issues false, inaccurate and biased reports that reveal its clear political agenda and is far from a balanced observer. Notably, the website of the NGO Monitor, which always deplores foreign influence on Israeli politics, reveals that the group is funded almost entirely by private American donors.

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