Foundations of civil and political rights in Israel and the occupied territories

Table of Contents

INTRODUCTION

A. HISTORICAL PERSPECTIVES REGARDING THE RIGHT TO SELF-DETERMINATION OF THE JEWISH AND THE PALESTINIAN ARAB PEOPLE

1. INTRODUCTION

2. IDEOLOGY AND DOCTRINES OF THE CONCEPT OF POLITICAL ZIONISM

3. SOURCES OF THE CONCEPT OF POLITICAL ZIONISM

3.1. THE BASLE PROGRAMME - DECLARED IN 1897

3.2. THE BALFOUR DECLARATION OF 2 NOVEMBER 1917

3.3. THE MANDATE FOR PALESTINE - GRANTED TO GREAT BRITAIN IN 1922

3.3.1. General Remarks

3.3.2. What is the "Self" of a Nation and Who has the Right to Express its Will?

3.3.3. US President Woodrow Wilson's "Fourteen Points", 1919 and The Mandate for Palestine, 1922: Self-Determination For Whom?

3.4. THE BILTMORE PROGRAMME - ESTABLISHED IN 1942

3.5. THE JERUSALEM PROGRAMME - ESTABLISHED IN 1951

3.6. REVISION OF THE JERUSALEM PROGRAMME IN 1968

4. ESTABLISHMENT OF "JEWISH NATIONAL INSTITUTIONS" BY THE ZIONIST MOVEMENT

4.1. INTRODUCTION

4.1.1. The Fundamental Principle of "Inalienability of Land"

4.1.2. The Fundamental Principle of "Jewish Labour"

4.1.3. The "Jewish National Institutions" and their Significance for the State of Israel

4.2. THE WORLD ZIONIST ORGANIZATION (WZO) - ESTABLISHED IN 1897

4.3. THE JEWISH AGENCY (JA) - ESTABLISHED FORMALLY IN 1922 - CONSTITUTED IN 1929

4.4. THE JEWISH NATIONAL FUND (JNF) - ESTABLISHED IN 1901

5. PALESTINIAN ARAB OPPOSITION TO POLITICAL ZIONISM IN THE 1920'S AND 1930'S: MAJOR EVENTS LEADING TO THE REJECTION BY THE PALESTINIAN ARAB PEOPLE OF THE UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 181 (II) OF 29 NOVEMBER 1947

5.1. THE PERIOD FROM 1880 UNTIL 1919

5.1.1. The Henry McMahon - Sharif Hussein Correspondence (1915 - 1916)

5.1.2. The King-Crane Commission - Established in August 1919

5.2. THE DISTURBANCES IN PALESTINE IN THE YEARS 1920, 1921, 1925 AND 1929

5.2.1. The Shaw Commission - Established in 1929

5.2.2. The Hope Simpson Report - Published in October 1930

5.2.3. The Passfield White Paper - Published in October 1930

5.2.4. The Ramsay MacDonald Letter - Issued in 1931

5.3. THE GENERAL STRIKE IN 1936 AND THE OPEN REBELLION FROM 1936 TO 1939

5.3.1. The Royal (Peel) Commission - Established in 1936

5.3.2. The MacDonald White Paper - Issued in 1939

5.4. THE PERIOD FROM 1940 UNTIL THE ADOPTION OF THE UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 181 (II) OF 29 NOVEMBER 1947

5.5. THE PERIOD AFTER THE ADOPTION OF THE UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 181 (II) OF 29 NOVEMBER 1947 UNTIL THE SIGNMENT OF ARMISTICE AGREEMENTS IN 1949

6. SUMMARY AND CONCLUSIONS

B. ISRAEL'S INITIAL OBLIGATIONS TO ENACT A CONSTITUTION INCLUDING A BILL OF HUMAN RIGHTS AND THE ISSUE OF JUDICIAL REVIEW

1. INTRODUCTION

2. THE ROLE OF THE ISRAELI SUPREME COURT IN THE SPHERE OF CIVIL AND POLITICAL RIGHTS

2.1. GENERAL REMARKS

2.2. THE INSTITUTIONAL ORGANIZATION OF ISRAEL'S JUDICIAL SYSTEM

2.2.1. General/Civil/Regular Courts of Law

2.2.2. Tribunals and Authorities Vested with Judicial Powers

2.3. THE SUPREME COURT OF ISRAEL

2.3.1. The Jurisdiction of the Supreme Court

2.3.2. Judicial Activism and Judicial Restraint

2.3.3. The Normative Status of Human Rights Case Law

2.3.4. Summary and Conclusions

3. THE NATURE AND LEGAL STATUS OF THE DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL, 1948

3.1. GENERAL REMARKS

3.2. SUPREME COURT JURISPRUDENCE

3.2.1. The Declaration of the Establishment of the State of Israel - Considered as "Political Instrument"

3.2.1.1. Zvi Zeev v. Gubernik (1948)

3.2.1.2. El-Karbutli v. Minister of Defence (1948)

3.2.2. The Declaration of the Establishment of the State of Israel - Considered as "Instrument of Interpretation"

3.2.2.1. Kol Ha'am Company Limited v. Minister of Interior (1953)

4. ISRAEL'S OBLIGATION TO ENACT A CONSTITUTION INCLUDING A BILL OF RIGHTS AS REQUESTED BY THE DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL, 1948

4.1. THE ELECTIONS TO THE CONSTITUENT ASSEMBLY AND ITS TRANSFORMATION INTO "THE FIRST KNESSET"

4.2. THE HARARI RESOLUTION - ADOPTED IN 1950

4.3. ARGUMENTS RAISED AGAINST THE ENACTMENT OF A CONSTITUTION INCLUDING A BILL OF RIGHTS

4.3.1. General Remarks

4.3.2. The View of David Ben Gurion

4.3.3. The View of the Religious Parties

4.3.4. Other Arguments Raised Against the Enactment of a Constitution including a Bill of Human Rights

4.4. THE POWER OF THE KNESSET TO ENACT A CONSTITUTION

4.4.1. Background

4.4.2. The Opinion of Legal Scholars

4.4.2.1. Professor Melville B. Nimmer's Opinion

4.4.2.2. Professor Claude Klein's Opinion

4.4.2.3. Professor Amnon Rubinstein's Opinion

4.4.2.4. Professor Eliahu Likhovski's Opinion

4.5. SUMMARY AND CONCLUSIONS

5. THE ATTITUDE OF THE ISRAELI SUPREME COURT TOWARDS JUDICIAL REVIEW OF PRIMARY LEGISLATION OF THE KNESSET IN HUMAN RIGHTS CASES

5.1. BACKGROUND

5.2. INITIAL ARGUMENTS AND REASONS FOR THE OBJECTION TO JUDICIAL REVIEW

5.2.1. The Doctrine of Sovereignty of the Israeli Parliament

5.2.2. The Principles of Separation of Powers and Democracy

5.2.2.1. Leon v. Gubernik (1948)

5.2.2.2. Other Decisions and Arguments of the Supreme Court

5.3. FIRST STEPS TOWARDS JUDICIAL REVIEW OVER PRIMARY LEGISLATION: ENTRENCHED CLAUSES IN BASIC LAWS

5.3.1. The Basic Law: The Knesset (1958)

5.3.2. Bergman v. Minister of Finance (1969)

6. NORMATIVE RELATIONSHIP BETWEEN BASIC LAWS AND REGULAR LAWS

7. THE ENACTMENT OF TWO BASIC LAWS ON HUMAN RIGHTS IN 1992 AND THEIR IMPACT ON THE ISRAELI LEGAL SYSTEM

7.1. GENERAL REMARKS

7.2. THE BASIC LAW: HUMAN DIGNITY AND FREEDOM, 1992 (AMENDED IN 1994)

7.3. THE BASIC LAW: FREEDOM OF OCCUPATION, 1992 (RE-ENACTED IN 1994)

8. UNITED MIZRAHI BANK v. MIGDAL COOPERATIVE VILLAGE (1995)

8.1. GENERAL REMARKS

8.2. THE FACTS OF THE CASE

8.3. THE DECISION OF THE DISTRICT COURT

8.4. THE DECISION OF THE SUPREME COURT

8.4.1. The Opinion of Supreme Court President Barak

8.4.1.1. The Knesset’s Authority to Enact a Constitution

8.4.1.2. Kelsen's Basic Norm or "Grundnorm" Model

8.4.1.3. Hart's "Rule of Recognition" Model

8.4.1.4. Dworkin's Empirical Model

8.4.2. The Opinion of Supreme Court Justice Shamgar

8.4.3. The Opinion of Supreme Court Justice Cheshin

8.4.4. The Opinion of Supreme Court Justice Bach

8.5. THE SIGNIFICANCE OF THE UNITED MIZRAHI BANK CASE

9. CONCLUSIONS AND RECOMMENDATIONS

C. THE CONCEPT OF THE STATE OF ISRAEL AS A "JEWISH STATE" AND ITS IMPACT ON THE RIGHT TO EQUALITY AND OTHER CIVIL AND POLITICAL RIGHTS

1. INTRODUCTION

2. THE RELATIONSHIP BETWEEN STATE AND RELIGION IN ISRAEL

2.1. GENERAL REMARKS

2.2. THE OTTOMAN MILLET SYSTEM AND ITS ADOPTION BY THE BRITISH MANDATORY REGIME AND THE ISRAELI GOVERNMENT

2.2.1. The Ottoman Period

2.2.2. The British Mandatory Period

2.2.3. The Establishment of the State of Israel

2.3. HISTORICAL BACKGROUND OF THE "STATUS QUO" ARRANGEMENT

2.3.1. The Doctrine of Ultra-Orthodox Judaism and its Original Position towards Political Zionism

2.3.2. The Changing Position of Ultra-Orthodox Judaism towards the Concept of Political Zionism

2.4. THE PRESENT IMPORTANCE OF THE "STATUS QUO" ARRANGEMENT

2.5. THE NATURE OF RELIGIOUS LAW IN ISRAEL'S LEGAL SYSTEM

2.5.1. General Remarks

2.5.2. The Question of the Legal Nature of Canon Law

2.5.3. The Nature of Jewish Law

2.6. HISTORICAL BACKGROUND REGARDING THE POSITION OF JEWISH LAW IN ISRAEL'S LEGAL SYSTEM

2.7. THE OFFICIAL AND ACTUAL POSITION OF JEWISH LAW IN ISRAEL'S LEGAL SYSTEM

3. THE CONCEPT OF ISRAEL AS A "JEWISH STATE" AND ITS IMPACT ON THE RIGHT TO EQUALITY AND MINORITY RIGHTS

3.1. GENERAL REMARKS

3.2. THE IMPACT OF THE "JEWISH STATE" CONCEPT ON THE RIGHT TO EQUALITY AND PALESTINIAN ARAB MINORITY RIGHTS

3.2.1. The Absence of a Constitutional and Ordinary Law Protecting the Right to Equality and Minority Rights and The Non-Recognition of the Arab Community in Israel as National (Palestinian) Minority

3.2.2. The Flag and Emblem Law, 1949

3.2.3. The National Anthem of Israel

3.2.4. The State Stamp Law, 1949

3.2.5. The Days of Rest Ordinance, 1948

3.2.6. The Martyrs and Heroes Remembrance Day Law, 1959

3.2.7. The Yad Yitzhak Ben-Zvi Law, 1969 and The Mikve Yisrael Agricultural School Law, 1976

3.2.8. The State Education Law, 1953

3.2.9. The Broadcasting Authority Law, 1965

3.2.10. The Chief Rabbinate of Israel Law, 1980 and The Kashrut (Prohibition of Deceit) Law, 1983

3.2.11. The Foundations of Law Act, 1980

3.2.12. Other Legislation

3.3. THE IMPACT OF THE "JEWISH STATE" CONCEPT ON JURISPRUDENCE RELATING TO THE RIGHT TO EQUALITY AND MINORITY RIGHTS FOR PALESTINIAN ARAB CITIZENS IN ISRAEL

3.3.1. Abu-Gosh v. Minister of Education and Culture (1971)

3.3.2. Watad v. Minister of Finance (1983)

3.3.3. Adalah & Others v. Minister of Religious Affairs & Others (1998)

3.3.4. Follow-Up Committee for Arab Education in Israel & Others v. Ministry of Education & Others (1997)

4. THE CONCEPT OF ISRAEL AS A "JEWISH STATE" AND ITS IMPACT ON THE RIGHT TO CITIZENSHIP AND NATIONALITY

4.1. GENERAL REMARKS

4.2. THE IMPACT OF THE "JEWISH STATE" CONCEPT ON LEGISLATION RELATING TO THE RIGHT TO CITIZENSHIP AND NATIONALITY

4.2.1. The Law of Return, 1950 and The Nationality Law, 1952

4.2.1.1. Acquiring Citizenship by Return

4.2.1.2. Acquiring Citizenship by Residence

4.2.1.3. Acquiring Citizenship by Birth

4.2.1.4. Acquiring Citizenship by Naturalization

4.2.2. Conclusions

4.3. THE IMPACT OF THE "JEWISH STATE" CONCEPT ON JURISPRUDENCE RELATING TO THE RIGHT TO CITIZENSHIP AND NATIONALITY

5. THE CONCEPT OF ISRAEL AS A "JEWISH STATE" AND ITS IMPACT ON THE RIGHT TO ASSOCIATION

5.1. GENERAL REMARKS

5.2. THE IMPACT OF THE "JEWISH STATE" CONCEPT ON LEGISLATION AND JURISPRUDENCE RELATING TO THE RIGHT TO ASSOCIATION

5.2.1. The Prevention of Terrorism Ordinance, 1948

5.2.2. The Penal Law, 1977

5.2.3. The Non-Profit Societies Law, 1980

5.2.4. The Political Parties Law, 1992

5.2.5. The Defence (Emergency) Regulations, 1945

5.2.5.1. Jiryis v. District Commissioner of Northern District (1964)

6. THE CONCEPT OF ISRAEL AS A "JEWISH STATE" AND ITS IMPACT ON THE RIGHT TO POLITICAL PARTICIPATION

6.1. GENERAL REMARKS

6.2. THE IMPACT OF THE "JEWISH STATE" CONCEPT ON LEGISLATION AND JURISPRUDENCE RELATING TO THE RIGHT TO POLITICAL PARTICIPATION

6.2.1. The Period from 1949 to 1985

6.2.1.1. Yeredor v. Central Elections Committee for the 6th Knesset (1965)

6.2.1.2. Neiman v. Central Elections Committee for the 11th Knesset (1984)

6.2.2. The Basic Law: The Knesset (Amendment No. 9) (1985)

6.2.2.1. Ben-Shalom v. Central Election Committee for the 12th Knesset (1988)

6.2.3. The Political Parties Law, 1992

6.2.3.1. Ganem Yaseen v. Yamin Israel (1995)

7. SUMMARY AND CONCLUSIONS

D. ISRAEL'S PERMANENT STATE OF EMERGENCY AND THE QUESTION OF ITS COMPATIBILITY WITH THE CONCEPT OF A LIBERAL DEMOCRACY BASED ON HUMAN RIGHTS AND FREEDOMS

1. INTRODUCTION

2. THEORETICAL DISCUSSION OF "NATIONAL SECURITY" AND "LIBERAL DEMOCRACY"

3. ISRAEL'S CONCEPT OF "STATE SECURITY" AND THE QUESTION OF ITS COMPATIBILITY WITH THE IDEAS OF A "LIBERAL DEMOCRACY AND HUMAN RIGHTS"

3.1. IDEOLOGICAL FOUNDATIONS OF ISRAEL'S CONCEPT OF "STATE/NATIONAL SECURITY"

3.2. THE CONCEPT OF BALANCING INTERESTS IN "SECURITY MATTERS"

3.3. ISRAEL'S RULES OF EVIDENCE IN "SECURITY MATTERS"

3.4. ISRAEL'S PERMANENT STATE OF EMERGENCY: LEGAL SOURCES AND JUSTIFICATIONS

4. ISRAEL'S FORMAL "SECURITY" AND "EMERGENCY" LEGISLATION: LEGAL SOURCES AND JUSTIFICATIONS

4.1. BACKGROUND

4.2. BRITISH MANDATORY "EMERGENCY" LEGISLATION

4.3. ISRAELI "SECURITY" AND "EMERGENCY" LEGISLATION

4.3.1 "Emergency" Legislation Enacted by Israel's Parliament

4.3.2 "Emergency" Legislation Based on: The Law and Administration Ordinance, 1948 and The new Basic Law: The Government (1992)

5. THE BRITISH MANDATORY DEFENCE (EMERGENCY) REGULATIONS, 1945

5.1. HISTORICAL BACKGROUND AND NORMATIVE NATURE OF THE BRITISH DEFENCE (EMERGENCY) REGULATIONS, 1945

5.2. THE VALIDITY AND SCOPE OF APPLICATION OF THE BRITISH DEFENCE (EMERGENCY) REGULATIONS, 1945 WITHIN ISRAEL SINCE 1948

5.2.1 The Validity of the Defence (Emergency) Regulations, 1945

5.2.2. Challenges to the Validity of the Defence (Emergency) Regulations, 1945

5.2.2.1. Herzl Kook v. Minister of Defence (1948)

5.2.3. The Defence (Emergency) Regulations, 1945 as Legal Basis for the System of Military Government within Israel from 1948-1966

5.2.3.1. General Overview

5.2.3.2. The Military Government's Systematic Violation of the Civil and Political Rights of the Palestinian Arab People (1948-1966)

5.2.3.3. The Role of the Israeli Supreme Court in the Context of the Military Government

5.2.3.4. Summary and Conclusions

5.3. THE VALIDITY AND SCOPE OF APPLICATION OF THE BRITISH DEFENCE (EMERGENCY) REGULATIONS, 1945 WITHIN THE OCCUPIED TERRITORIES SINCE 1967

6. CONCLUSIONS

7. RECOMMENDATIONS

E. THE ADMINISTRATIVE, LEGAL AND JUDICIAL SYSTEM IN THE OCCUPIED TERRITORIES

1. INTRODUCTION

2. THE ADMINISTRATIVE SYSTEM IN THE OCCUPIED TERRITORIES SINCE 1967

2.1. THE PERIOD FROM 1967 UNTIL 1981

2.2. THE ESTABLISHMENT OF A "CIVIL ADMINISTRATION" IN 1981

2.3. ISRAEL'S UNDERSTANDING OF "SECURITY MATTERS" ?

2.4. THE ESTABLISHMENT OF JEWISH SETTLEMENTS IN THE OCCUPIED TERRITORIES

2.4.1. General Remarks

2.4.2. The Allon Plan and Labor Settlement Plan

2.4.3. The Gush Emunim Settlement Plan

2.4.4. The Suburbia Settlement Plans

2.5. ISRAEL'S METHODS AND JUSTIFICATIONS FOR THE EXPROPRIATION AND RESTRICTION ON THE USE OF OCCUPIED PALESTINIAN LAND

2.5.1. General Remarks

2.5.2. Military Orders and other Normative Sources concerning Expropriations of Land in the West Bank

2.5.2.1. Declaration of Occupied Land as "Absentees' Property" - Military Order No. 58, 1967

2.5.2.2. "Requisition" of Occupied Land for "Military Purposes" - Hague Regulations, 1907

2.5.2.3. Declaration of Occupied Land as Israeli "State Land" - Military Order No. 59, 1967 and Military Order No. 291, 1968

2.5.2.4. Expropriation of Occupied Land for "Public Purposes" - Military Order No. 321, 1969

2.5.3. Military Orders and other Normative Sources concerning the Restriction on the Use of Land in the West Bank

2.5.3.1. Declaration of Occupied Land as "Combat Zones" - Military Order No. 271, 1968

2.5.3.2. Declaration of Occupied Land as "Closed Areas" - Military Order No. 378, 1970

2.5.3.3. Declaration of Occupied Land as "Nature Reserves" - Military Order No. 363, 1969

2.5.3.4. Prohibition of Construction on Occupied Land - Military Order No. 393, 1970

2.5.4. Israel's Settlement Policy in Jerusalem

2.5.5. Settlement and By-Pass Roads in the West Bank

3. THE LEGAL AND JUDICIAL SYSTEM IN THE OCCUPIED TERRITORIES SINCE 1967

3.1. ISRAEL'S APPROACH TOWARDS THE APPLICATION OF INTERNATIONAL LAW IN THE OCCUPIED TERRITORIES

3.2. LEGAL DUALISMUS AND APARTHEID IN ISRAEL AND THE OCCUPIED TERRITORIES

3.3. THE QUESTIONABLE ROLE OF ISRAEL'S SUPREME COURT

4. THE IMPACT OF THE OSLO I AND II AGREEMENTS SIGNED IN 1993 AND 1995 ON THE OCCUPIED TERRITORIES

5. CONCLUSIONS

F. THE RIGHT TO FREEDOM OF EXPRESSION, SPEECH AND THE PRESS

1. INTRODUCTION

2. JURISPRUDENCE

3. LICENSING OF NEWSPAPERS AND THE PRINTING PRESS

3.1. STATUTORY PROVISIONS

3.1.1. The Press Ordinance, 1933

3.1.2. The Defence (Emergency) Regulations, 1945

3.2. SUPREME COURT CASES CONCERNING SECTION 19(2) OF THE PRESS ORDINANCE, 1933

3.2.1. Kol Ha'am Company Limited v. Minister of Interior (1953)

3.2.2. Omar International Inc. NY v. Minister of Interior (1981)

3.3. SUPREME COURT CASES CONCERNING REGULATION 94(2) OF THE DEFENCE (EMERGENCY) REGULATIONS, 1945

3.3.1. Adoption of a Strong Legal Formalistic and Positivistic Approach

3.3.2. El-Ard v. District Commissioner (1964)

3.3.3. Al Assad v. Minister of Interior (1979)

3.3.4. Makhoul v. Jerusalem District Commissioner (1981)

4. CENSORSHIP

4.1. PHILOSOPHICAL AND HISTORICAL DIMENSIONS OF CENSORSHIP

4.2. STATUTORY PROVISIONS FOR MILITARY CENSORSHIP

4.2.1. The Defence (Emergency) Regulations, 1945

4.3. THE CENSORSHIP AGREEMENT BETWEEN THE EDITORS' COMMITTEE AND THE ISRAEL DEFENCE FORCES (IDF)

4.4. SUPREME COURT CASES CONCERNING MILITARY CENSORSHIP

4.4.1. Hadashot v. Minister of Defence (1984) - "The Bus No. 300 Affair"

4.4.2. Schnitzer v. Chief Military Censor (1988)

4.5. SELF-CENSORSHIP IMPOSED BY NEWSPAPERS EDITORS

4.6. THE PRIOR CLEARANCE ARRANGEMENT

4.6.1. Cohen v. Minister of Defence (1962)

4.7. FOREIGN PRESS AND JOURNALISTS

5. THE ISRAELI BROADCASTING MEDIA - RADIO AND TELEVISION

5.1. STATUTORY PROVISIONS

5.1.1. The Broadcasting Authority Law, 1965

5.1.2. The Second Television and Radio Broadcast Authority Law, 1990

5.2. SUPREME COURT CASES CONCERNING ISRAEL'S BROADCASTING AUTHORITY (IBA)

5.2.1. Zichroni v. Broadcasting Authority (1982)

5.2.2. Kahane v. Broadcasting Authority (1985)

6. CONCLUSIONS

7. RECOMMENDATIONS

G. THE RIGHT TO PROPERTY

1. INTRODUCTION

2. ISRAEL SINCE 1948

2.1. GENERAL REMARKS

2.2. DECLARATION OF PALESTINIANS AS "ABSENTEES" AND CONFISCATING THEIR LAND AND MOVABLE PROPERTY

2.2.1. The Emergency Regulations (Absentees' Property), 1948 and The Absentees' Property Law, 1950

2.2.2. Main Features and Institutions Involved in the Context of the Application of the Absentees' Property Law, 1950

2.2.2.1. The Custodianship Council for Absentees' Property

2.2.2.2. The Development Authority

2.2.2.3. The Jewish National Fund (Keren Kayemet Le-Israel)

2.2.3. Jurisprudence regarding "Absentees' Property" Cases

2.2.4. The Creation of so called "Present Absentees"

2.2.4.1. Statutory Provisions

2.2.4.2. Jurisprudence regarding "Present Absentees"

2.2.5. The Klugman Report - Published in 1992

2.3. REQUISITION OF PRIVATE LAND AND HOUSES DURING AN OFFICIALLY PROCLAIMED "STATE OF EMERGENCY" FOR THE PURPOSES OF "STATE SECURITY" AND "ESSENTIAL SERVICES"

2.3.1. The Emergency Regulations (Requisition of Property), 1948 and The Emergency Land Requisition (Regulation) Law, 1949

2.3.2. Jurisprudence regarding Land Requisition in a "State of Emergency" for the Purposes of "State Security"

2.4. DECLARATION OF LAND AS "CLOSED AREAS" AND THE CREATION OF THE SO CALLED "UPROOTED VILLAGES"

2.4.1. Regulation 125 of the British Mandatory Defence (Emergency) Regulations, 1945

2.4.2. Supreme Court Cases concerning Regulation 125 of the Defence (Emergency) Regulations, 1945

2.4.2.1. Asslan & Others v. Military Governor of Galilee (1951)

2.4.2.2. The Establishment of Military Firing Ranges in the al-Roha Area of Wadi Ara and in Umm al-Fahem (1976, 1985 and 1998)

2.5. DECLARATION OF LAND AS "SECURITY ZONE " AND CONFISCATING THIS LAND

2.5.1. The Emergency Regulations (Security Zones), 1949

2.5.2. Supreme Court Cases concerning the Emergency Regulations (Security Zones), 1949

2.5.2.1. Daoud & Others v. Minister of Defence & Others - First Case (1951)

2.5.2.2. Daoud & Others v. Security Zones Appeal Committee, Office of the Military Governor of the Galilee - Second Case (1951)

2.5.2.3. Committee of Displaced Persons from Ikrit & Others v. Minister of Defence - Third Case (1981)

2.6. DECLARATION OF LAND AS "WASTE LAND" AND CONFISCATING THIS LAND

2.6.1. The Emergency Regulations (Cultivation of Waste Lands), 1949

2.6.2. Supreme Court Cases concerning the Emergency Regulations (Cultivation of Waste Lands), 1948

2.7. LEGALIZATION OF ACTIONS BY MEANS OF "TRANSFER OF OWNERSHIP" OF LAND

2.7.1. The Land Acquisition (Validation of Acts And Compensation) Law, 1953

2.7.2. Supreme Court Cases concerning the Land Acquisition (Validation of Acts And Compensation) Law, 1953

2.8. EXPROPRIATION OF LAND FOR "PUBLIC PURPOSES"

2.8.1. The Land (Acquisition for Public Purposes) Ordinance, 1943

2.9. ISRAEL'S SYSTEM OF OWNERSHIP AND ADMINISTRATION OF LAND

2.9.1. The Basic Law: Israel’s Land (1960)

2.9.2. The Israel Land Administration Law, 1960

2.9.3. The Agricultural Settlement (Restrictions on Use of Agricultural Land and of Water) Law, 1967

2.9.4. The World Zionist Organization (WZO) and Jewish Agency (Status) Law, 1952

2.9.4.1. General Remarks

2.9.4.2. The Covenant between the Israeli Government and the WZO

2.9.4.3. The Covenant between the Israeli Government and the JA

2.9.4.4. Ka'adan v. Israel's Land Administration (1995)

3. SUMMARY AND CONCLUSIONS

H. SUMMARY AND FINAL CONCLUSIONS

Objectives and Research Themes

The primary objective of this dissertation is to provide an in-depth examination of the regulation of civil and political rights in Israel and the Occupied Territories, exploring the normative and religious sources of these rights, and analyzing how judicial principles are applied and interpreted by the Israeli Supreme Court in its stated duty to protect individual liberties. The research questions center on whether the Israeli legal system successfully reconciles its self-definition as a "Jewish and democratic state" with international human rights standards, specifically investigating how the concept of "state security" is used to justify legislative and judicial policies that disproportionately impact the Palestinian Arab population.

• The legal and constitutional framework of Israel since its establishment in 1948.
• The historical sources and ideology of political Zionism and its impact on the Israeli legal order.
• The role of the Israeli Supreme Court, particularly regarding judicial review in human rights cases.
• The impact of Israel's "Jewish state" concept on rights such as equality, property, citizenship, and freedom of expression.
• The systemic effect of a permanent state of emergency on the legal and administrative system in Israel and the Occupied Territories.

Auszug aus dem Buch

Summary of Chapters

A. HISTORICAL PERSPECTIVES REGARDING THE RIGHT TO SELF-DETERMINATION OF THE JEWISH AND THE PALESTINIAN ARAB PEOPLE: This chapter analyzes the historical, ideological, and political roots of Zionism, its claim to self-determination, and the resulting historical and legal conflict with the indigenous Palestinian Arab population leading up to the 1948 establishment of Israel.

B. ISRAEL'S INITIAL OBLIGATIONS TO ENACT A CONSTITUTION INCLUDING A BILL OF HUMAN RIGHTS AND THE ISSUE OF JUDICIAL REVIEW: This chapter examines the lack of a formal constitution in Israel, the reliance on a series of Basic Laws, and the Supreme Court’s inconsistent approach to judicial review of legislation in the context of human rights.

C. THE CONCEPT OF THE STATE OF ISRAEL AS A "JEWISH STATE" AND ITS IMPACT ON THE RIGHT TO EQUALITY AND OTHER CIVIL AND POLITICAL RIGHTS: This chapter investigates how the definition of Israel as a "Jewish state" influences legal and jurisprudential standards, often creating discriminatory frameworks for non-Jewish populations in areas such as religious law, equality, and minority rights.

D. ISRAEL'S PERMANENT STATE OF EMERGENCY AND THE QUESTION OF ITS COMPATIBILITY WITH THE CONCEPT OF A LIBERAL DEMOCRACY BASED ON HUMAN RIGHTS AND FREEDOMS: This chapter critiques the Israeli government's use of a permanent state of emergency, rooted in pre-state and British mandatory laws, to justify expansive security legislation and executive power that often infringes upon fundamental human rights.

E. THE ADMINISTRATIVE, LEGAL AND JUDICIAL SYSTEM IN THE OCCUPIED TERRITORIES: This chapter details the administrative and judicial structures implemented by Israel in the occupied territories since 1967, arguing that these systems facilitate colonial objectives, land expropriation, and systematic discrimination against Palestinians.

F. THE RIGHT TO FREEDOM OF EXPRESSION, SPEECH AND THE PRESS: This chapter evaluates the legal restrictions on expression and the press in Israel, contrasting the relative freedom of the Hebrew press with the heavy censorship and licensing requirements often applied to the Palestinian Arab press.

G. THE RIGHT TO PROPERTY: This chapter focuses on the normative standards governing land and property rights, detailing how legislative and administrative mechanisms were used to facilitate land seizure from Palestinians for the benefit of Jewish institutions and settlements.

H. SUMMARY AND FINAL CONCLUSIONS: This chapter synthesizes the main arguments of the work, reiterating that Israel's legal system, fundamentally shaped by Zionist ideology and a permanent state of emergency, systematically prioritizes Jewish national interests over the rights and equality of the Palestinian Arab people.

Keywords

Israel, Occupied Territories, Political Zionism, Human Rights, Judicial Review, Supreme Court of Israel, Palestinian Arab population, Basic Laws, State of Emergency, Rule of Law, Right to Equality, Right to Property, Land Expropriation, Jewish National Institutions, International Humanitarian Law.

Frequently Asked Questions

What is the primary focus of this dissertation?

The work provides an in-depth analysis of how civil and political rights are regulated in Israel and the Occupied Territories, focusing on the normative sources and judicial interpretations that have shaped the legal landscape for different populations.

What are the central themes discussed in the book?

The central themes include the influence of Zionist ideology on the legal system, the nature of Israel’s constitutional framework, the use of a permanent state of emergency to restrict human rights, and the systemic discrimination against the Palestinian Arab population in matters of land, citizenship, and political participation.

What is the core research question or objective?

The primary objective is to investigate how the state of Israel's legal system and judicial jurisprudence, influenced by the "Jewish state" concept, impact the protection of civil and political rights for all inhabitants, particularly examining the discrepancies in treatment between the Jewish and Palestinian populations.

Which scientific methods are employed in this analysis?

The author employs a comprehensive analysis of domestic Israeli law, Supreme Court jurisprudence, and relevant international human rights and humanitarian law to evaluate the compatibility of state policies with democratic principles.

What topics are covered in the main body of the work?

The main body covers the history of Zionism, Israel's constitutional structure, the role and stance of the Supreme Court, the impact of religious law, the administrative and legal systems in the Occupied Territories, and specific rights such as freedom of expression and the right to property.

Which keywords best characterize this research?

Key terms include Israel, Occupied Territories, Political Zionism, Human Rights, Judicial Review, Supreme Court, Palestinian Arab population, State of Emergency, and Right to Property.

How does the author analyze the role of the Israeli Supreme Court?

The author argues that while the Supreme Court has occasionally promoted liberal principles in the context of freedom of speech, it has predominantly adopted a formalistic and positivistic approach, particularly in "security matters," often deferring to the executive branch and facilitating the policies of the state at the expense of Palestinian rights.

What is the author's conclusion regarding the compatibility of a "Jewish state" with a liberal democracy?

The author concludes that the state of Israel's ideological commitment to a "Jewish state" creates a fundamental conflict with the principles of a liberal democracy that requires equal rights for all citizens, arguing that the priority given to Jewish national interests systematically results in the discrimination and marginalization of the Palestinian Arab population.