Hostile face of human rights

By Frances Raday, October 17, 2011

As an Israeli member of a UN Human Rights Council working group I have seen first-hand that much of the current international human-rights criticism of Israel suggests that the country is no longer a democracy.

This criticism is not restricted to the issue of the occupation and the settlement policy beyond the Green Line. It blurs the question of Israel's democracy within the Green Line, a question of constitutional law, with issues of international human rights law and also the laws of war and international relations.

Much of the criticism of Israeli constitutional democracy has been based on recent laws relating to the citizenship oath, the denunciation of Israel as a Jewish and democratic state, including calling Independence Day "the Naqba", and reception committees for 400-unit "gated communities".

These laws were introduced by right-wing elements in government who aim to entrench the Jewish character of the state and to legitimise the settlements. However, under pressure from Israeli human-rights organisations claiming the laws discriminated against Arabs, the Knesset drew back from the brink and, in its final form, the legislation either included express anti-discrimination clauses or restricted their purview to partial reduction of government funding for organisations that participated in prohibited activities.

The laws are not discriminatory though implementation has to be monitored. Only the recent "Boycott Law" failed to meet the test of democratic human rights, allowing private parties to take action against
persons boycotting the settlements.

Critics now suggest that Israel is no longer a democracy

Other condemnations of Israel's democracy are levelled at the Supreme Court. Some academics and lawyers are critical on the grounds that its justices are too activist and hence subvert the democratic will. This seems a surprising claim. The review powers of the Supreme Court are derived from Israel's Basic Law: Human Dignity and Liberty, which provided in 1992 that the rights guaranteed under the Law must not be violated except by legislation that is for a proper democratic purpose and is proportional.

This Basic Law is a partial written constitutional bill of rights. True, the list of guaranteed rights should be expanded to include express rights to equality, freedom of religion, thought and expression. However, in the absence of such express rights, the Supreme Court has, correctly, held that these rights are an inherent component of human dignity. This is not a left-wing attack on Israel's character but merely conforms to Israel's international human rights obligations under treaties that it has ratified.

Human-rights critics of the court, even if not intentionally, join forces with the religious lobby and the court's right-wing opponents, threatening a central pillar of Israel's constitutional democracy.

Israel has a functioning democracy. However, there are grounds for concern that the constitutional democracy is not fully respected and implemented.

Too often, orders issued by the Supreme Court are ignored by the government and administration. For example, the orders relating to the evacuation of properties in East Jerusalem by Jewish settlers, or to the funding of special-needs education within the state school system.

This threat, and the related negative atmosphere around the Supreme Court, is all the more regrettable when you place the court in an international context. A comparative analysis with other democratic countries shows the court in a positive light and with it the strength of Israel's constitutional democracy.

The need to ensure accuracy in how Israel is perceived from the outside world is clear. At the same time, it is crucial that we work to ensure the health of Israel's functioning democracy.

Frances Raday is professor of Law at Hebrew University, and a member of the New Israel Fund International Council

Last updated: 11:39am, October 17 2011