In this L.L.M thesis I am following a number of eminent scholars who have attributed those ideological and political motivations to the mainly Jewish and Israeli actors who devote themselves to the furthering of the uniqueness thesis in their respective fields of knowledge. In my view, from the culmination of those corresponsive activities emerges a pattern that can and should be applied to the Israeli judges in their abnormal reluctance from interfering in administrative decisions by recognizing present day asylum seekers as refugees.
In the larger scope, there is a lot in common between Jewish and Jewish-Israeli historians, diplomats or museum directors, with their persistent effort to reject the calls of other victim-groups for recognition of their own tragedy as a genuine genocide, and the Israeli judges that in the same vain derogate from the constitutive theoretical principles of their field of work when it comes to the dealing with the Holocaust.
As much as the Jewish-Israeli genocide scholar may fear the decline in value, morally and politically, of the Holocaust, as a result of possible recognition of other tragedies as additional valid examples in line with the Holocaust, which all belong to the general category of the definition ‘genocide’, the Israeli judge must also believe that the Holocaust would lose its uniqueness if the legal definition of ‘refugee’ is applied to the situation of contemporary asylum seekers. Conceptually situating them in the same group of the Jewish -refugees who fled from Nazi-Germany, might then dissipate the “Israeli advantage” in “justifiably” keeping the whole moral capital to itself.
In the second chapter I shall present and elaborate about the Holocaust’s uniqueness thesis, and its promotion by its proponents in different fields, and especially within history studies.
What might make the definition ‘refugee’ intimately associated with the Holocaust in the Israeli judges’ mind is the Jewish context of the 1951 Convention relating to the Status of Refugees, and the conventional wisdom about Israel’s historical commitment to the refugee protection regime it has established. For them, the Refugee Convention connotes so strongly to the Holocaust, that when they examine its applicability and implementation in a specific case, the memory of the Jewish-refugee who fled his Nazi perpetrators is being instantly evoked. In other words, the Jewish context of the Convention serves as a nexus between the Holocaust with its Jewish refugees and the contemporary forms of persecution and the refugees resulting from them. Rather than considering the international refugee law as their only valid point of reference, the judges are more attached – consciously or not – to the Holocaust framework and to what lies at its center, the Holocaust’s uniqueness. Compelled by the ideological imperative to distinguish the Holocaust from any other historical atrocity, and so to avoid such possible implication if comparing the legal situation of the Holocaust’s refugees to the contemporary asylum seekers, the judges seem to mistake the unique form of persecution witnessed by the Jewish-refugees for the actual yardstick with which to measure the appellant’s entitlement for the refugee status.
In the third chapter I examine the involvement of Israel and Jewish organizations in the drafting and acceptance of the Refugee Convention, as well as the sources for the conventional wisdom about Israel’s historical commitment to the Convention, and its fallacy.
In the last chapter of this thesis I conduct an analysis of the figurative language used by the judges in trying to establish – through the allusions occasionally made by them to the Holocaust at large and more commonly to the Jewish context of the Refugee Convention – that when thinking about the asylum seeker appellant standing before them, they also bear in mind a phantom of the Jewish refugee, whose suffering’s magnitude overshadows any possible fear of being prosecuted proclaimed by the actual appellant. Since present day asylum seekers do not withstand the unique standards of persecution witnessed by those poor phantoms of Jewish refugees, their asylum claims are inevitably being discarded and consequently they all pass for nothing but mere economical migrants, a fact that is exemplified in the inexistent refugee recognition rate both at first instance and at the Court level.
This study explores the process of endogenous institutional change. It utilizes the concepts policy layering and displacement to explain gradual but yet significant and cumulative institutional change that has taken place in civic national service policy in Israel. Layering was an expedient strategy of change given the highly charged politics surrounding national service and the opposition of ultra-orthodox and Israel’s Arab citizens to any form of service. While the government and administrative agencies were the primary agents of change, we will also take note of the important and contentious role of Israel’s High Court of Justice which served as a catalyst to policy change, compelling the government to end policy drift. However, it is important to note that judicial intervention may also derail gradual reform as will be shown in the Israeli case.
The role of tour guides has not been widely discussed in the literature, and neither has the policy that governs the place of tour guides in relation to the pilgrimage in the Holy Land. The Israeli Supreme Court (1987) has enabled pilgrims to guide without a licence, in clear opposition to the position of the Israeli Tour Guides’ Association. This led to a public ‘storm’, as a result of the tension between law, tourism, religion and state. It seems that the pilgrims’ debate is not over yet in Israel. This paper will try to analyse the court decision within a neo-institutionalism approach emphasising non-governability and alternative political culture as explanatory variables.
Sasley, Brent E., and Harold M. Waller. Politics in Israel: Governing a Complex Society. New York: Oxford University Press, 2016.
This is the first textbook on Israel to utilize a historical-sociological approach, telling the story of Israeli politics rather than simply presenting a series of dry facts and figures. The book emphasizes six specific dimensions of the conduct of Israeli politics: the weight of historical processes, the struggle between different groups over how to define the country’s identity, changing understandings of Zionism, a changing political culture, the influence of the external threat environment, and the inclusive nature of the democratic process. These themes offer students a framework to use for understanding contemporary political events within the country. Politics in Israel also includes several chapters on topics not previously addressed in competing texts, including historical conditions that led to the emergence of Zionism in Israel, the politics of the Arab minority, and interest groups and political protest.
Table of Contents
Chapter 1: Israel in Historical and Comparative Perspective
Israel in a Comparative Framework
Major Themes of the Book
A Note on Terminology
PART I: HISTORICAL PROCESSES Chronology of Key Events Chapter 2: Zionism and the Origins of Israel
Jewish History before Zionism
The Jewish Predicament in the 19th Century
The Founding of the Zionist Movement
Implications of Zionism
Herzl’s Path to Zionism
Organizing the Zionist Movement
The Palestine Mandate
Chapter 3: Yishuv Politics during theMandate Period
Constructing a Jewish Society
Development of a Party System
Conflict between Arabs and Jews in Mandatory Palestine
Deteriorating Zionist-British Relations
The End of the Mandate
The Mandate Period in Perspective
Chapter 4: State Building After 1948 Mamlachtiut
The Political Arena
Personal Status Issues
Other State-Building Efforts
PART II: ISRAELI SOCIETY
Chapter 5: Political Culture and Demography
The Pre-State Period
Foundational Values of the State
Changes since 1967
From Collectivism to Individualism
Political Culture in the Arab Community
Chapter 6: Religion and Politics
Religion and the Idea of a Jewish State
Setting the Parameters of the Religion-State Relationship
Growing Involvement in Politics
Issues in Religion-State Relations after 2000
Religious Parties and Coalition Politics
Chapter 7: The Politics of the Arab Minority
What’s in a Name?
Changing Politics of the Community
Jewish Attitudes toward the Arab Minority
Arab Leaders and the Arab Public
Sayed Kashua as Barometer?
PART III: THE POLITICAL PROCESS
Chapter 8: The Electoral System
The Development of an Electoral System
Parties and Lists
Chapter 9: Political Parties and the Party System
Center or “Third” Parties
Ethnic or Special Issues Parties
Chapter 10: Voting Patterns
Four Main Issues
Chapter 11: Interest Groups and Political Protest
Changing Access in the Israeli Political System
Chapter 12: The Knesset
Structure of the Knesset
Functions and Powers of the Knesset
Relationship to the Government
Chapter 13: The Government
The Government at the Center of the System
Powers of the Government
Forming a Government
Maintaining and Running a Government
Relations with the Knesset
The President of the State
Chapter 14: The Judiciary and the Development of Constitutional Law
The Judicial System
Structure of the Court System
The Religious Court System
The Attorney General
Basic Laws: A Constitution in the Making?
Interpreting the Constitution
PART V: POLITICS AND POLICYMAKING
Chapter 15: Political Economy
Ideas about Economic Development in the Yishuv
A State(ist) Economy
Likud and the Free Market
Chapter 16: The Israeli-Palestinian Conflict
Three Levels of Threat Perception
Israel’s Threat Environment
Hawks and Doves in the Political System
The Defense Establishment
PART VI: THE TRANSFORMATiON OF ISRAELI POLITICS Chapter 17: The Changing Political Arena
A More Complex Society
An Economic Transformation
Transformation of the Security Situation
The Israeli-Palestinian Relationship
Dampening of Ideology
Political Culture and the Party System
The Passing of a Heroic Generation
A More Consequential Arab Sector
The Transformation of the Judiciary
Change versus Continuity
Chapter 18: Confronting the Meaning of a Jewish State
The Political Question: What is Jewish and Democratic?
The Social Question: Who Belongs?
The Academic Question: Whose Historiography?
BRENT E. SASLEY is Associate Professor of Political Science at The University of Texas at Arlington. HAROLD M. WALLER is Professor of Political Science at McGill University.
The ongoing case of Bannai v Erez before the Israeli and English courts provides an unfortunate example of international commercial arbitration gone astray as a result of shortsighted and aggressive decision making by domestic courts.
Simmons, William Paul, and Leonard Hammer. “Privatization of Prisons in Israel and Beyond: A Per Se Violation of the Human Right to Dignity.” Santa Clara Journal of International Law 13.2 (2015): 487-515.
Making a rather ambitious, broad-form decision, the Israeli Supreme Court (ISC) in 2009 ruled that privatization of prisons is a per se violation of human rights, in particular the rights to liberty and dignity. The Court ruled that it was not the often deleterious consequences of privatization that violated the rights to liberty and dignity, but that privatization of prisons by itself was a violation. This decision has been subject to much negative commentary and criticism with most analyses focusing on the Court’s argument on the right to liberty. Scholars that have dismissed the opinion seemed to have misread it, often grounding their counter-arguments with faulty and wildly abstract premises that misrepresent the human rights issues at stake. This article focuses on the Court’s novel argument on the right to human dignity, and especially how privatization of prisons turns inmates into commodities. While this argument may have been under-developed in the Court’s opinion, teasing out and expanding on the Court’s logic could provide an important new avenue to consider when litigating matters that pertain to the fundamental human right to dignity in other forums, both domestic and international.
The Israeli Court decision briefly mentions that similar decisions have not been made in other forums and cited a brief that suggested that “were arguments of this kind to be raised before those courts, they would not be expected to be successful.” This paper argues instead that the logic of the Israeli decision on the human rights to dignity could be successful in other jurisdictions, especially those that have strong case law on the rights of vulnerable populations and the right to human dignity, such as South Africa, the African Commission of Human and Peoples’ Rights, and the Inter-American Human Rights system. Indeed, the viable contentions based on the human right to dignity that could be raised before the Inter-American Commission on Human Rights serve as potential grounds for challenging the widespread privatization of prisons in the United States.
This paper begins with an analysis of the Israeli prison privatization case with a focus on the Court’s finding of a per se violation of the human right to dignity. The second section analyzes two previous commentaries of the Israeli case to show how even those in agreement with the Court’s decision have misread the case. This analysis provides a deeper and more nuanced reading of the Israeli Court’s logic on the human right to dignity, especially how the commodification of inmates in a private prison inherently is a violation of that right at least in the Israeli context. The third section expands upon the Court’s reasoning through a discussion of what has been referred to as “cauterization,” which involves branding a group as inferior, sealing it off from the social and political sphere, and reducing sympathy for its members. Interestingly, the same logic was also used in a recent groundbreaking mental health decision, Purohit and Moore v. Gambia, a case before the African Commission on Human and Peoples’ Rights. The fourth section teases out the key elements of the Israeli decision to show which elements would need to be present to successfully bring such a case in other jurisdictions. These elements are present not only in the Israeli context, but also in the African Commission on Human and Peoples’ Rights, the South African Constitutional Court, and the Inter-American Human Rights system.
In this Article, I suggest that “religion,” both as it is commonly understood, and as it is understood and applied by courts as a legal term of art, refers chiefly to belief. This understanding of “religion” is incorrectly, if tacitly, assumed to be both neutral and broadly applicable. Building on previous work focusing on British courts, I now turn to investigating how Israeli courts understand the concept of religion. And, as before, I focus on cases addressing the question “who is a Jew?” as a window into how courts understand religion and membership in a religion more generally.
To set the legal issues in context, in Part II, I briefly trace the emergence of the State of Israel. Part II.A discusses the early Zionist movement with particular attention to the philosophy of Theodor Herzl. Part II.B traces the early legal foundations of the State of Israel from the Balfour Declaration through the Proclamation of the State. Part III concerns the legal system created by the State. Part III.A introduces the legal structure of the state of Israel. Part III.B details the function and authority of the courts within that structure. Part III.C addresses the legal status of religion in the state, and Part III.D looks at the Law of Return, a unique feature of Israeli law applicable only to Jews (and certain relations). Part IV concerns the substantive debate on “Who is a Jew” under Israeli civil law. Part IV.A discusses in detail three seminal cases addressing the legal relationship between Judaism and the State-Rufeisen (also known as Brother Daniel), Shalit, and Beresford-along with significant legislation passed in the wake of Shalit. Part IV.B attempts to reconcile these decisions and tease out the factors that the Israeli Supreme Court has considered significant and the assumptions that it has made in adjudicating issues of religious identity.
Part V turns to the historical validity and neutrality of the understanding of “religion” applied by the Israeli Supreme Court. Part V.A offers an overview of the Christian origins of the modern concept of “religion” as primarily a matter of belief. Part V.B reflects on how the Jewish state, through its secularist Supreme Court, could have come to a Christian understanding of religion. Finally, Part VI takes a step back to place the findings in the wider debate on secularization. Part VI.A provides the necessary background on this secularization paradigm, and Part VI.B suggests that these cases may point to a useful refinement. Part VII offers a brief conclusion.
Kagan, Michael. “Limiting Deterrence: Judicial Resistance to Detention of Asylum-Seekers in Israel and the United States.” Texas International Law Journal Symposium: Immigration and Freedom of Movement, February 5, 2015.
Governments have advanced the argument that asylum-seekers may be detained in order to deter other would-be asylum-seekers from coming. But in recent litigation in the United States and Israel, this justification for mass detention met with significant resistance from courts. This essay looks at the way the American and Israeli courts dealt with the proposed deterrence rationale for asylum-seeker detention. It suggests that general deterrence raises three sequential questions:
1. Is deterrence ever legitimate as a stand alone justification for depriving people of liberty?
2. If deterrence is sometimes legitimate, is it valid as a general matter in migration control, or is it limited to certain exceptional circumstances?
3. If deterrence is a legitimate goal, is there any effective proportionality limit on the measures a government may take against asylum-seekers?
The American and Israeli courts did not answer these questions in the same way, and they did not foreclose all potential future uses of deterrence by their respective governments. But they signaled considerable judicial resistance, which may make it more difficult for governments to justify mass detention in the future.
The legal concept of ‘amicus curiae’ (friend of the court) was unknown in Israeli law until 1999 when, in the course of a well-known legal decision (the Kuzli case), the Israeli Supreme Court adopted this common law concept as part of Israeli law. Almost fifteen years have elapsed since the legal precedent set in Kuzli, during which time the criteria for participation as an amicus curiae have been established.
The aim of this study was to empirically explore and analyse the ways in which the procedural institution of amicus curiae has been used and adopted under Israeli law, and the extent to which it has influenced judicial decisions. The study has used empirical methods, including the collection of quantitative data from computerised databases in Israel concerning cases in which an application to be recognised as an amicus curiae was made.
The main findings indicate that, over the last decade, the number of applications for recognition as an amicus curiae has grown steadily. Most of these applications were made by non-governmental organisations in attempting to support private individuals engaged in legal proceedings against the state or for-profit corporations. The findings reveal that the courts have approved most of these applications.
Solomon, Solon. “From the Barrier to Refugee Law: National Security’s Transformation from a Balancing Right to a Background Element in the Realms of Israeli Constitutionalism.” International Journal of Human Rights 19.4 (2015): 447-64.
Mapping cardinal cases of the Israeli Supreme Court, the article will demonstrate how, in the Israeli constitutional experience, the concept of national security came to be transformed from a balancing right to a background element. Along these lines, the article will argue that while Israeli constitutionalism indeed awarded national security parameters a decisive role in the realms of the human rights balance judicial discourse, it equally embarked on a procedure of delineating the existence of national security as an autonomous consideration, in cases where national security exigencies ceased to be obvious in the Israeli reality. Compelling the examination of a national security debate under the human rights lens, the Israeli Supreme Court aligned its jurisprudence with that of other supreme courts as well as with the international thematic constitutionalism model, aspiring to interpret the different fields of laws and various provisions under the concept of the right to dignity.
Navot, Suzie. The Constitution of Israel: A Contextual Analysis. Oxford: Hart, 2014.
This book presents the main features of the Israeli constitutional system and a topical discussion of Israel’s basic laws. It focuses on constitutional history and the peculiar decision to frame a constitution ‘by stages’. Following its British heritage and the lack of a formal constitution, Israel’s democracy grew for more than four decades on the principle of parliamentary supremacy. Introducing a constitutional model and the concept of judicial review of laws, the ‘constitutional revolution’ of the 1990s started a new era in Israel’s constitutional history. The book’s main themes include: constitutional principles; the legislature and the electoral system; the executive; the protection of fundamental rights and the crucial role of the Supreme Court in Israel’s constitutional discourse. It further presents Israel’s unique aspects as a Jewish and democratic state, and its ongoing search for the right balance between human rights and national security. Finally, the book offers a critical discussion of the development of Israel’s constitution and local projects aimed at enacting a single and comprehensive text.
Marriage and divorce in Israel is regulated by religious laws. Same-sex marriage, therefore, has no formal place in Israel. The legal system, however, has shown flexibility mainly through Supreme Court decisions recognizing obligations and benefits to same-sex couples. The lack of a religion in Israel that would accept same-sex marriage, and the lack of a secular marriage to fill the void of religious marriage systems has not meant a total invisibility of same-sex couples. On the contrary, in addition to Supreme Court decisions expressly granting rights to same-sex couples, foreign same-sex marriage can be registered as valid marriages performed abroad. More importantly, same-sex parenting has become a possibility through progressive decisions of Israeli courts.
In conclusion, the articulation of the democratic dilemma in the Israeli judicial and political arena has been revealed to be much more than a theoretical or institutional discussion. During the course of the various debates, which ultimately recognized the need to disqualify political parties, defensive democracy has imposed itself as a new regime of truth delimiting what is legitimate and what is not in the matter of party representation in a democracy. This dominant discourse has not only led to the institutionalization of limits on political participation by legitimizing the passing of the amendments studied above, but has significantly transformed the accepted meaning of democracy, its identity and boundaries. The construction of a narrative according to which democracy would have to defend itself against enemies has conferred a meaning to democracy that largely differs from the original model of democracy, as defined by the Israeli discourse itself. By “defending itself,” the Israeli democracy has been transformed into a regime in which democratic rights have become a conditional attribute of the nation-state, ready to be sacrificed in the name of the latter’s survival and where allegedly suspicious citizens can be excluded from the polity. Under those circumstances, the room for substantial — rather than formal — pluralism has itself become considerably limited.
The conference is free and open to the public, but registration is required. Please email ISCP@yu.eduwith your name, affiliation, and contact information.
Constitutional Conflicts and the Judicial Role in Comparative Perspective
This conference will explore the Israeli Supreme Court’s jurisprudence on complex and challenging questions facing open and multi-cultural societies everywhere. Because these issues are salient in, but by no means peculiar to, Israel, a comparative perspective will enrich our understanding of how such issues are, and might be, dealt with in other democratic societies.
Panels will address the general question of the value and challenges of comparative legal study, differing conceptions of the role of the judiciary and doctrines of justiciability, and substantive areas of current controversy, including the role of the courts in overseeing national security and intelligence gathering; immigration, asylum, and treatment and status of refugees; and religion in the modern nation-state.
The Israeli Supreme Court Project at Cardozo
This conference marks the launch of the Israeli Supreme Court Project at Cardozo Law (ISCP). Intended to both inform and engage constitutional scholars, lawyers, and judges in democracies around the world, the ISCP is a center of study and discussion of the decisions of the Israeli Supreme Court, one of the great judicial bodies of the world and a court at the forefront of dealing with issues at the core of what it means to be a democratic society.
The central undertaking of the ISCP is the translation into English and dissemination of key opinions of the Israeli Supreme Court. In this, the Project is continuing, and will expand on, two decades of work and over 200 translations by the Friends of the Library of the Supreme Court of Israel. Translated opinions, other relevant material about the Court, and more information about the ISCP can all be found on the Project’s website, VERSA, at versa.cardozo.yu.edu.
This conference, as well as the other work of the ISCP, are made possible by essential support from the David Berg Foundation, which is gratefully acknowledged.
2:30-3 p.m. Registration and Coffee3-3:15 p.m. Welcoming Remarks
This panel will consider the value and challenges of comparative legal study. Why should scholars and judges in one country care what their counterparts elsewhere are up to? Is it ever possible for outsiders to understand the details, cultural meanings, and historical underpinnings of a foreign legal system? What are the settings, issues, or circumstances that make for a successful comparative work?
8:30-9 a.m. Registration and Coffee 9-10:30 a.m. The Role of the Judiciary in Comparative Perspective
The Israeli Supreme Court hears over 10,000 cases a year, has a large mandatory docket, for many of its most important cases is the court of first instance rather than a court of appeal, and has only limited threshold “justiciability” doctrines (such as standing requirements or the bar on political questions). In these features it is utterly different from its U.S. counterpart. This panel will consider such structural characteristics, then turn to their broader implications regarding the role of the judiciary in governance and in society, including the question of whether a Supreme Court leads or follows civil society, whether it is an educational institution, and the sources of its legitimacy.
10:45 a.m.-12:15 p.m. Judicial Oversight of National Security and Intelligence Gathering
Effective national security and intelligence gathering are generally understood to depend on secrecy, dispatch, and subterfuge. These characteristics would seem to leave little room for judicial oversight, which assumes transparency, forthrightness, and deliberate pacing. On the other hand, there is a very real danger of abuse without some sort of oversight and legal restraint. This panel will consider how national security issues differ (if at all) from other issues that come before the courts and what exactly the judicial role should be in overseeing national security agencies.
12:30-1:30 p.m. Lunch (Lunch will be provided for all attendees.)
1:30-3 p.m. Immigration, Asylum, and the Treatment and Status of Refugees
Of the Israeli Supreme Court’s recent decisions, one of the most important, divided, and divisive have concerned the detention of asylum seekers. Issues surrounding immigration and citizenship are hugely important, and hugely contested, in Israel and elsewhere. This panel will examine the ISC’s decisions in this area and consider what lessons can be drawn, positive or negative, for Israel and for the rest of the world.
3:15-4:45 p.m. Religion in the Modern Nation-State
Israel’s Basic Laws designate it as “both Jewish and democratic.” The Supreme Court, and many commentators, have struggled to reconcile these two fundamental commitments. Is it possible to construct a constitutional identity that privileges Jewish culture, history, and religion while remaining essentially democratic? The answer to that question has ramifications for religious liberties in many settings as well as minority rights in general.
This essay analyzes the decisive role of the 1961 Eichmann trial and the pivotal judicial perspective of its presiding judge, Supreme Court Justice (later Chief Justice) Moshe Landau. Justice Landau’s part in the trial has been neglected in previous studies, and his own perspective on the trial has been—until now—utterly unknown. The article considers new historical materials—Landau’s private memoir—in the context of the “objective” legal facts as established in the trial transcripts and videotapes. The analysis focuses on Landau’s leadership in an extraordinary courtroom situation, as well as on the path-breaking decisions he made during the proceedings. The trial became the landmark that it was because of the presiding judge’s meticulous professionalism and his deep understanding of its potential significance for the state of Israel.