Jerusalem, 8 March 2000

High Court: Decision on Katzir

(Communicated by Court’s Spokeswoman)

The High Court of Justice today (Wednesday) 8.3.2000 ruled in the Katzir case. Following is the case summary:

Petitioners are an Arab couple who live in an Arab settlement. They seek to build a home in Katzir, a communal settlement in the Eron River region. This settlement was established in 1982 by the Jewish Agency in collaboration with the Katzir Cooperative Society, on State land that was allocated to the Jewish Agency (via the Israel Land Authority) for such a purpose. The Katzir Cooperative Society only accepts Jewish members. As such, it refuses to accept the Petitioners and permit them to build their home in the communal settlement of Katzir. The Petitioners claim that the policy constitutes discrimination on the basis of religion or nationality an that such discrimination is prohibited by law with regard to State land.

The Court examined the question of whether the refusal to allow the petitioners to build their home in Kaztir constituted impermissible discrimination. The Court’s examination proceeded in two stages. First, the Court examined whether the State may allocate land directly to its citizens on the basis of religion or nationality. The answer is no. As a general rule, the principle of equality prohibits the State from distinguishing between its citizens on the basis of religion or nationality. The principle also applies to the allocation of State land. This conclusion is derived both from the values of Israel as a Democratic state and from the values of Israel as a Jewish state. The Jewish character of the State does not permit Israel to discriminate between its citizens. In Israel, Jews and non-Jews are citizens with equal rights and responsibilities. The State engages in impermissible discrimination even it if is also willing to allocate State land for the purpose of establishing an exclusively Arab settlement, as long as it permits a group of Jews, without distinguishing characteristics to establish an exclusively Jewish settlement on State land ("separate is inherently unequal").

Next, the Court examined whether the State may allocate land to the Jewish Agency knowing that the Agency will only permit Jews to use the land. The answer is no. Where one may not discriminate directly, one may not discriminate indirectly. If the State, through its own actions, may not discriminate on the basis of religion or nationality, it may not facilitate such discrimination by a third party. It does not change matters that the third party is the Jewish Agency. Even if the Jewish Agency may distinguish between Jews and non-Jews, it may not do so in the allocation of State land.

The Court limited its decision to the particular facts of this case. The general issue of use of State lands for the purposes of settlement raises a wide range of questions. First, as the petitioners themselves agreed, this case is not directed at past allocations of State land. This petition looks to the future. Second, this petition focuses on the particular circumstances of the communal settlement of Katzir. In discussing this issue, the Court stated:

"Naturally, there are different types of settlements, for example, kibbutzim and moshavim. Different types of settlements give rise to different problems. We did not hear arguments regarding other types of settlements and therefore, we do not take a position with regard to these types of settlements. Moreover, we must consider the possibility that special circumstances, beyond the type of settlement, may be relevant. We did not hear arguments with regard to such special circumstances, and therefore we do not take a position with regard to their significance. Moreover, it is important to understand and remember that today we are taking the first step in a sensitive and difficult journey. It is wise to proceed slowly, so that we do not stumble and fall, and instead we will proceed cautiously at every stage, according to the circumstances of each case."

With regard to the relief requested by the petitioners, the Court noted various social legal difficulties. In light of these difficulties, the Court rendered the following judgement:

A. "We hold that the State of Israel was not permitted, by law, to allocate State land to the Jewish Agency for the purpose of establishing the communal settlement of Katzir on the basis of discrimination between Jews and non-Jews.

B. The State of Israel mist consider the petitioners’ request to acquire land for themselves in the settlement of Katzir for the purpose of building their home. The State must make this consideration based on the principle of equality, and considering various other relevant factors – including those factors affecting the Jewish Agency and the current residents of Katzir. The State of Israel must also consider the numerous legal issues. Based on these considerations, the State of Israel must determine with deliberate speed whether to allow the petitioners to make a home within the communal settlement of Katzir."

President Aharon Barak filed an opinion in which Justices T. Or and I. Zamir joined. Justice M. Cheshin concurred in the judgement and filed an opinion. Justice Y. Kedmi dissented in the judgement and filed an opinion.