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2018 | OriginalPaper | Chapter

Emergency as a State of Mind—The Case of Israel

Author : Suzie Navot

Published in: The Rule of Crisis

Publisher: Springer International Publishing

Abstract

Since its establishment in 1948, Israel has been in a state of war and in extended periods of emergency. The Declaration of Independence founded Israel as a ‘Jewish and democratic’ state, but since the very beginning a ‘state of emergency’ was declared, which is permanent ever since. Furthermore, one-fifth of Israel’s citizens are Arab nationals (Palestinian Israelis) who wish to preserve their culture, religion and language, while sympathizing with the Palestinian nation and the Arab world, with which the state of Israel is in a state of ongoing belligerency. In the 1967 war, Israel occupied populated territories, which created serious debates about the civil status and general fate of the Palestinian population of the West Bank and the Gaza Strip. The Supreme court of Israel allowed Palestinians to appeal against decisions made by the military commanders of the occupied regions, sharply defending the need to protect human rights even in times of emergency. War and terror acts have resulted in an almost daily examination of restrictions of human rights, pressing the need to find the right balance between defending those rights and protecting national security. This paper will present, first, the Israeli model of a state of emergency, the different types of power granted to the executive, its normative framework, and its uses in the past and present as well as parliamentary and judiciary control. Second, it will disclose the difficulties a permanent state of emergency poses: how the ongoing executive power may lead to the misuse of emergency rules by politicians, applying unusual methods and procedures in circumstances that have nothing to do with emergency; how parliamentary control tends to weaken, how power shifts from Parliament to the executive and how emergency legislative tools seem to ‘migrate’ even to constitutional amendments. The article will discuss the unique role of the Supreme court of Israel (sitting as the High court of Justice) as a powerful controller of emergency regulations, measures and decisions. The court’s activist rulings on military and security cases, coupled with its criticism of government powers, have played a most significant role in shaping Israel’s state of emergency. Last, it will analyse the new anti-terrorism law approved on 15 June 2016—a further step within the global war on terror—a law which creates new offences, significantly expands both the state’s counterterrorism powers and its definitions of terrorist organizations and terrorist acts.

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previous chapter Polish Martial Law on the Docket—Judging the Past and the Clash of Judicial Narratives

next chapter The French Case or the Hidden Dangers of a Long-Term State of Emergency

For a theoretical overview and a comparative study of legislation and practices see: Khakee (2009), Ackerman (2004).

HCJ 3091/99 Citizens’ Rights Association v The Knesset (decided on 8 May 2012).

General Assembly Resolution 181, Resolution Adopted on the Report of the AD HOC Committee on the Palestinian Question, A/Res/181 (II) (29 November 1947), www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/181(II) (Last Visited 21/3/2017).

The Question of Palestine & the United Nations (United Nations Department of Public Information—DPI/2276—March 2003), www.un.org/Depts/dpi/palestine/ch2.pdf (Last Visited 21/3/2017).

The declaration of the Establishment of the state of Israel, Official Gazette: Number 1; Tel Aviv, 5 Iyar 5708, 14.5.1948 Page 1 www.knesset.gov.il/docs/eng/megilat_eng.htm.

Ibid.

The Law and Administration Ordinance, 5708-1948.

British (Mandatory) defence emergency regulations derive from British enactments between 1937 and 1945, during Britain’s mandate over Palestine. These regulations have the status of primary laws, they apply notwithstanding any law, and they may amend any law with and without modification, and remain in force with no time limit.

Section 9 reads: When a state of emergency has been declared by the legislature, any member of government empowered by the government to do so may ‘introduce emergency regulations for the benefit of state protection, public safety and the maintenance of vital supplies and services’. These regulations stay in force for a period of three months and can be extended only by an act of Parliament.

Barak Erez (2013), p 430.

Since 2001 Basic Law: the Government (clause 38) grants the authority to announce a state of emergency to the Knesset (for a year) and if the Kneesset cannot convine to the government (for a week with a possibility of extension), the Knesset has announced a state of emergency on 7/11/2016, thus prolonging the state of emergency by year another year. This practice was challenge at the HCJ 3019/99 Association for Civil Rights in Israel v Knesset (decided 8.5.2012) the petitioner claimed that the announcement was not justified and undermines the rule of law. The court criticized but did not rule the state of emergency void. ‘The Israeli government, in its reply to an HCJ appeal … has admitted that the use of emergency powers is a governmental practice. Its officials stated in their reply to the appeal submitted by the Association for Civil Rights in Israel (ACRI), that ending the declaration of emergency would deny the ability of the government to administer effectively since several civil laws are conditioned by the declaration of an SOE and that the process of replacing them with formal normative laws is still ongoing, Thus, part of the logic of sustaining the state of emergency is to prevent a legal vacuum, rather than simply to ensure security’ at Mehozay (2012).

Friedberg and Hazan (2010).

The Harrari Resolution reads: ‘The First Knesset charges the Constitution, Law, and Justice Committee with preparing a draft of the State Constitution. The Constitution will consist of separate chapters, each chapter constituting a basic law in its own. The chapters will be presented to the Knesset … and all of the chapters shall be consolidated into the State Constitution’. www.knesset.gov.il/description/eng/eng_mimshal_hoka.htm#4 (last visited 21/3/2017). For a historical overview and discussion see Navot (2014), pp 8–12.

Bascic Law: The Knesset (1958); Basic Law: Israel Lands (1960); Basic Law: The President of the state (1964); Basic Law: The Government (1968—amended 1992: mixed election system, amended 2001: return to system of proportional elections); Basic Law: The State Economy (1975); Basic Law: The Military; Basic Law: Jerusalem Capital of Israel (1980); Basic Law: The Judiciary (1984); Basic Law: The State Controller (1988); Basic Law: Freedom of Occupation (1992); Basic Law: Human Dignity and Liberty (1992); Basic Law: Referendum (2014); Two temporary provisions Basic Law: State Budget (Special Provisions) (Temporary Provision) enacted in 2009 and extended since till 2016 and an additional Temporary Provision for the years 2017–2018 all in order to determine that the state budget would become a biannual judgment. The first amendment let to a petition to the Supreme court at the case of HCJ 4908/10 Bar-On MK v The Knesset (2011) that challenged the constitutionality of the amendment. The petition was rejected. A new petition questioning the amendment of 2017 is awaiting the courts rulling.

CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, 49(4) P.D. 221 (1995).

For an opposite view see Gavison (2005–2006).

Mehozay (2016), p 41.

Section 39 of Basic Law: The Government.

The anti-terrorism law, 2016. See also Hofnung (1991), Dershowitz (1971).

Section 10 of Basic Law: Human Dignity and Freedom, all laws enacted prior to 25.3.1992 are immuned from judicial review according to this basic law.

HCJ 2161/96 Sharif v. Home Guard Commander IsrSC 50(4) 485, Section 7 [1996]; HCJ 5290/14 Qawasmeh v. Military Commander of the West Bank, Section 22 (11.8.2014); HCJ 4597/14, Awawdeh v. Military Commander of the West Bank, Section 17–18 (1.7.2014).

See the case of Abu Fareh, HCJ 2006/97Abu Fareh Ganimat v GOC Central Command 51(2) PD 651 [1997]. For elaboration on this subject see Kretzmer (2002), p 69.

In 2014, several human rights organizations submitted a petition to the HCJ requesting the court to declare the use of regulation 119 unlawful. The court rejected the petition while reciting its previous decisions according to which the regulation is to serve as a deterrence tool and not as a punishment one that the use of the regulation should be done with caution and subjected to the principle of proportionality. See HCJ 8091/14 Hamoked: Centre for the Defence of the Individual v The Defence Minister (31.12.2014). See summary of the case in English at the Motion for further hearing in the judgment handed down by the Supreme court in HCJ 8091/14, HCJFH 360/15 HaMoked—Centre for the Defence of the Individual, founded by Dr. Lotte Salzberger v Minister of Defence (12 November 2015) www.hamoked.org/files/2015/1159125_eng.pdf.

Mehozay (n 19) 43.

Section 39 of Basic Law: The Government.

As amended in 1992.

Section 38(b) to Basic Law: the Knesset states: The declaration will remain in force for the period prescribed therein, but may not exceed one year; the Knesset may make a renewed declaration of a state of emergency as stated.

HCJ 243/52 Bialer v. Minister of Finance, 7 PD 429, where it stated that ‘Where the Knesset, by its own legislation, extends the ‘validity’ of national emergency regulations enacted by a particular minister, it effectively expresses its affirmative view of the regulations, and furthermore that for the duration of the extended period it vests them with a stamp of approval in the form of primary legislation. What this means is that at least from the date of the extension, the regulations are legal in every sense’.

In HCJ 2994/90 Poraz v The Government of Israel 44(3) PD 317 [1990], the court stated that providing for new immigrants (‘Alya’) is an essential service; in HCJ 6971/98 Paritzky v Minister of the Interior 53(1) PD 763 [1998], the court ruled that the preservation of the right to vote is an essential service.

AAD 1/82 Kawassma v. Minister of Defence PD 36(1) 666, 669 [1982].

The Prevention of Terror Ordinance prevented the creation, and activities, of terrorist organizations, and its application was restricted to states of emergency. A group of people was considered to be a terrorist organization if ‘it resorts in its activities to acts of violence calculated to cause death or injury to a person or to threats of such acts of violence’. The Ordinance established a prohibition on the activities of a terrorist organization, including membership thereof, and delivering propaganda speeches at a public meeting or over the radio on behalf of the organization. The goal of the Prevention of Terror Ordinance was to prevent all activity of terrorist organizations, the same aim as the new anti-terrorism Law. Over the years, a number of organizations have been declared, by the government, to be terrorist organizations (according to the Defence Ministry web site—eighteen declarations under the Prevention of Terror Ordinance and one under the new anti-terrorism law). See www.mod.gov.il/Defence-and-Security/Fighting_terrorism/Pages/default.aspx.

Section 32.

See HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v Prime Minister 61(1) PD 1 [2006] (in Hebrew). See Barak Erez (n 12) 429–432.

HCJ 6204/06 Beilin v. Prime Minister [1.8.2006] versa.cardozo.yu.edu/sites/default/files/upload/opinions/Beilin%20v.%20Prime%20Minister.pdf.

Ibid.

For an overview see Barak (2014).

Barak (2002).

HCJ 3091/99 Association for Civil Rights v the Knesset (decided 8.5.2012).

Section 39(5) of Basic Law: The Government.

Section 39(6) of Basic Law: The Government, HCJ 6971/98 Paritzky v Minister of the Interior 53(1) PD 763 [1998].

Barak Erez (n 12) 434.

HCJ 2994/90 Poraz v The Government of Israel 44(3) PD 317 [1990].

HCJ 6971/98 Paritzky v Minister of the Interior PD 53(1) 763 [1998].

AAD 8788/03 Federman v Minister of Defence PD 58(1) 176 [2003].

AAD 4/94 Ben Horin v The state of Israel PD 48(5) 329, Section 9 [1994].

AAD 7048/97 Anonymous v Minister of Defence, 53(1) PD 721 [2000].

Section (b)(1) of the Imprisonment of Illegal Fighters Law (2002).

Marcus Tullius Cicero. His actual wording was ‘Silent enim leges inter arma’.

Barak (n 39) 151.

HCJ 168/91 Morcos v Minister of Defence 45(1) PD, 467, 470–71 [1991].

HCJ 769/02 The Public Committee Against Torture in Israel v The Government of Israel 62(1) PD, 507, Section 39 [2006].

Most of these verdicts were published in English on the Supreme court’s official web site, under ‘Fighting Terrorism within the Law’. See elyon1.Court.gov.il/VerdictsSearch/EnglishStaticVerdicts.html.

HCJ 769/02 The Public Committee Against Torture in Israel v The Government of Israel (1)62 PD, 507 [2006]. elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.HTM.

HCJ 5100/94 Public Committee against Torture v The Government of Israel 56(4) PD, 817 (1999). See also Amand (1999).

This term refers to a situation in which a suspect, arrested by the GSS, has information about an imminent and even evolving terrorist event that cannot be prevented without that information.

For additional reading; see Rubinstein and Roznai (2011).

Mehozay (n 19) 105.

By November 2016, there were 23 decrees which regulate the following: pesticide, cosmetics, radiation machinery for medicinal use, dangerous toys, import and export of diamonds, activating of a cable car, manufacturing and selling of honey, manufacturing and trading of animal feed, manufacturing of milk, treatment of fish, installation of elevators are just some of the examples. There are still seven laws linked to the emergency state declaration dealing, among others, with supervision over seacraft, arrests, seizing of land and over time; see The Joint Committee regarding declaration of state of emergency—an overview regarding legislation which validity conditional of a state of emergency declaration (November, 2016) main.knesset.gov.il/Activity/committees/ForeignAffairs/LegislationDocs/Emergency_5.pdf (Hebrew).

Friedberg and Hazan (n 14) 184–185.

Martinez (2006).

Mehozay (n 13) 84.

Nahmias and Klein (1999); The Arrangements Law: Issues and International Comparisons (Written in Hebrew and translated into English by Dr. Susan Hattis Rolef Head of the International Desk The Knesset Research and Information Centre, 2006) www.knesset.gov.il/mmm/data/pdf/me01237.pdf.

The Omnibus Law of Arrangements is presented to the Knesset as a government-sponsored law. The law is considered supplementary to the Budget Law and combines an assortment of laws and legislative adjustments that the government deems it necessary for the Knesset to adopt and approve in order to enable it to carry out its policy and economic plan. The Omnibus Law of Arrangements differs from the majority of laws enacted by the Knesset in its structure and its legislative process. While regular laws deal with one specific, well-defined topic, the Omnibus Law of Arrangements serves as a ‘platform’ for laws and legislative adjustments in various areas. Moreover, while other proposed legislation is turned over to particular Knesset committees for deliberation as per the legislative norm in parliamentary systems, the Omnibus Law of Arrangements is passed to one committee (usually the Finance Committee) as a single unit and that committee deliberates on all sections of the law within a short, predetermined period of time at the end of which it returns the legislation to the Knesset plenary for final approval. In the current situation, the Omnibus Law of Arrangements serves as a unique governmental instrument that aids the government, through reliance on the coalition majority, in speeding up legislation, overcoming parliamentary obstacles and proposing legislative activities and bringing them to completion without systematic deliberation, appropriate oversight and critiquing. The special structure of the Omnibus Law of Arrangements and its speedy and peculiar legislative process arouse strenuous criticism both within and outside of the Knesset. The criticism is focused on the political-civic and legal aspects; deviation from the norm of democratic governance that demands accountability, transparency and an effective system of checks and balances in public policy formation in general and in legislation in particular. Despite repeated criticism, to date no significant steps have been taken to rescind the law or to introduce qualitative changes in its makeup.

HCJ 4885/03 The Poultry Growers Organization v The Government of Israel 59(2) PD, 14 [25] [2005].

Ittai Bar-Siman-Tov, Temporary Legislation, Better Regulation and Experimentalist Governance: An Empirical Study (July 10, 2016). Forthcoming, Regulation and Governance. Available at SSRN: https://ssrn.com/abstract=2807564: the study showed that even though only 8/7% of Israeli legislation is of the temporary kind there is a rising trend in the use of such legislation in the last fifteen years, during which, the temporary legislation comprises 15.41%. See page 14.

HCJ 7052/03 Adalah v The Interior Minister 71(2) PD, 202 [2006].

Deputy HCJ President Eliezer Rivlin stated that the legal proceeding does not address absentees but only present individuals. One of the most basic foundations of criminal law is that a person should not be tried in absentia. Justice Rivlin stressed that the defendant’s right to be present at his own trial is part of the right to honest proceedings, which is a basic premise of the law and a protected constitutional right. He deducted the importance of this principle from the habeas corpus doctrine; see CC 8823/07 John Doe v The State of Israel, at [20] (decided on 11.2.2010).

HCJ 6298/07 Ressler v The Knesset (21.2.2012). versa.cardozo.yu.edu/sites/default/files/upload/opinions/Ressler%20v.%20Knesset.pdf.

By the power of the instruction contained in Section 3(a) of Basic Law: The State’s Economy, s 3(a)(1) states that ‘the state budget shall be anchored in a law’ and s 3(a)(2) reads: ‘The budget will be marked for one year and present expected and planned government expenditures.’

HCJ 3019/99 Association for Civil Rights in Israel v Knesset (decided 8.5.2012) Justice Rubinstein’s verdict at [11].

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Amand MGS (1999) Public Committee against Torture in Israel v. The State of Israel et Al: landmark human rights decision by the Israeli High Court of Justice or Status Quo maintained. N C J Int Law Commercial Regul 25:655

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Barak A (2014) International humanitarian law and the Israeli Supreme Court. Israel Law Rev 47:181

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Gavison R (2005) Legislatures and the quest for a constitution: the case of Israel. Rev Const Stud 11:345

Hofnung M (1991) Israel–state security versus the rule of law. Nevo, Jerusalem

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Title: Emergency as a State of Mind—The Case of Israel
Author: Suzie Navot
Publisher: Springer International Publishing
Book: The Rule of Crisis
Print ISBN: 978-3-319-74472-8

Electronic ISBN: 978-3-319-74473-5

Copyright Year: 2018
DOI: https://doi.org/10.1007/978-3-319-74473-5_9