Deputy Attorney General of the State of Israel
On the Presentation of the Report of the State of Israel to the Human Rights Committee (ICCPR)
Geneva, 15 July 1998
Madam Chair, distinguished members of the Committee,
I am pleased to present Israel’s Initial and First Periodic Report on the implementation of the International Covenant on Civil and Political Rights. As you can see, we have taken the task of preparing this report very seriously. Our determination to be as thorough and comprehensive as possible resulted, regrettably, in a delay in submitting the report. But the final product justifies, I think, the time, effort and resources that were put into it. The report is, to my knowledge, the most extensive review of the status of human rights in the State of Israel written to date. It has been, and will continue to be, disseminated in Israel, in and outside government. The report was sent to some 130 NGO’s active in the country, to the Justices of the Supreme Court, to other senior judges, to the directors-general of all Governmental Ministries and to the contact persons in those Ministries who provided the information needed in preparing the report. These contact persons now comprise, in effect, an inter-departmental network for exchange of information on human rights, and plans are being made for formalizing this network and creating a permanent apparatus for reporting on the implementation of the various human rights instruments to which Israel is a party. We also met with representatives of many of the NGO’s, in a session organized by the Ministry of Justice and the Ministry of Foreign Affairs and heard their comments and criticism. The dialogue between the Government and the NGO’s, one of the welcome products of the reporting process, was a valuable experience, helping us to identify those issues which evoke particular concern.
The report is before you, and it includes a wealth of information. Unfortunately, I understand that technical constraints have prevented it from being translated into the other working languages of the United Nations. I hope, nonetheless, that the report will be translated, even after this session, into other languages. As a Middle Eastern country, we would have particular satisfaction seeing our report produced and disseminated in Arabic. In any case, I hope very much that the lack of translations will not impede the consideration of the report by the distinguished members of this Committee.
The report is lengthy and detailed, and I will not attempt to summarize it in these brief opening remarks. I would just like to say a few words of introduction about my country and about the context in which political and civil rights have developed and are guaranteed in Israel. Thereafter, I will offer a brief update on recent developments.
Israel is celebrating its fiftieth anniversary this year, in parallel with the fiftieth anniversary of the Universal Declaration on Human Rights. Indeed, Israel’s history has been intertwined with that of the United Nations. The General Assembly, which adopted the Universal Declaration, also adopted, one year before, the Resolution on the Future Government of Palestine, or, as it is perhaps better known, the "Partition Resolution". That Resolution provided for the establishment of a Jewish State and an Arab State in Palestine. The Jewish Community, in Palestine and elsewhere, greeted that Resolution with jubilation, and so it was that Israel, the Jewish State, declared its independence on May 14, 1948, a few short years after one third of the Jewish people was wiped out in the Holocaust. I can only point out, with pain and regret, that had the Arab world, including the Arab population of Palestine, also accepted that United Nations Resolution, rather that launching an armed attack against the fledgling State, not only would the history of the Middle East in the second half of the twentieth century have been much different, but Israel’s report on the implementation of the Covenant would not have to deal with many of the issues that the current report addresses.
Israel, faithful to the principles embodied in the Partition Resolution, is a Jewish and democratic state. I will not say that there is never tension between those two terms, but there is most certainly no contradiction. As Justice Cheshin of our Supreme Court put it:
"All the citizens of Israel – Jews and non-Jews – are ‘shareholders’ in the State, and the proposition that the State is the ‘State of all its citizens’ does not detract from it being a Jewish State, the State of the Jewish people. We must remember – how can we forget – the Jewish people did not and do not have any other state but the State of Israel, the Jewish State. However, within the State, all citizens are entitled to equal rights."
We our proud of being a Jewish state and we are equally proud of being a democracy. An imperfect democracy to be sure – what democracy isn’t? – but given the obstacles we were and continue to be faced with, the free, open and vibrant society that has developed in Israel is no small accomplishment. The population of Israel has increased tenfold since 1948, both through natural increase and through the absorption of millions of immigrants from all over the world, most of them from countries without a democratic tradition. War was declared on Israel, even before its inception, and the armed attacks against the country and its citizens, by those who don’t recognize the legitimacy of our very existence, have continued since then. The Arab minority, whose proportion within the population has risen over the years, has suffered the ramifications of the Arab-Israeli conflict, which has impeded its legitimate quest for equal rights. Within the Jewish community, fundamental differences on what it means to be a Jewish State have made the issue of religion and state a particularly divisive one.
But despite these obstacles, Israel is a true representative democracy, in which the enjoyment of rights by all of its residents and citizens has improved significantly over the years. I was pleased to read, in a publication released last month by Sikkuy, a Jewish-Arab NGO for the advancement of equal opportunity in Israel, that a study conducted by Jewish and Arab researchers among Israeli citizens showed that some 86% of Jews and 83% of Arabs said that they would prefer being citizens of Israel than of any other country in the world. Life expectancy has risen, as has the level of education and of health care. Infant mortality has decreased dramatically. The rate of improvement is significantly greater in the Arab population than in the Jewish population, though the gaps between the two sectors stiff exist. Public debate on all issues is free and robust, and the full range of ideas, even the most extreme, are aired widely both in the press and in parliamentary debate. The status of women has greatly improved, and in a few moments I’ll mention some recent developments in this area.
Certainly, many problems still exist, some of which will be discussed in the context of the issues that will be discussed today. The legal framework for addressing these problems is, I think, quite interesting.
As I’m sure you know, Israel has no formal written constitution. Our constitutional framework is set out in a series of Basic Laws. Only recently did the process of enacting Basic Laws on human rights begin, and we do not yet have a full Bill of Rights.
But we have not depended on a constitution in order to guarantee human rights. In the forefront of human rights protection were the courts of Israel, and in particular, the Supreme Court. Under our judicial system, cases challenging governmental action are generally brought directly to the Supreme Court, sitting as the High Court of Justice. Over the years, the rules of standing were relaxed, and the doors of the Court open to
all. Any person, regardless of citizenship, residency or other status who feels that his or her rights were unlawfully denied or infringed can petition the Supreme Court. A Justice of the Court reviews the petition, usually on the day of its filing, and can issue temporary orders as he or she sees fit. After hearing the case on its merits, if the Court finds that the government has acted unlawfully it can order the Government to rectify the situation. Because these cases go before the Supreme Court, whose decisions are universally binding, an individual petition often results in wide ranging changes in governmental policy. Often, NGO’s go to court, even without representing a particular individual, to challenge the Government on prison conditions, discrimination or other policies or actions.
In this way, a judicial bill of rights has evolved. As a result of High Court decisions, a permit to hold a demonstration cannot be denied unless there is a near certainty of serious danger to public order. The police must employ adequate resources to protect demonstrators. The Court has established a journalists privilege, though there is no such privilege in our statutes. The Supreme Court has, in effect, ruled film and theater censorship out of existence, with only the power to limit the dissemination of pornography, particularly to minors, remaining. The Supreme Court ruled that excluding a woman from an Air Force fighter pilots course is illegal discrimination. Our Court can even require a prosecutor to press criminal charges, after a case has been closed, a power which led, in one well-known case, to the court-martial of a senior army officer for crimes committed, on his order, against Palestinians. These are only a few examples of the judicial activism that has been shown by our Supreme Court, since the early days of the State.
The judiciary is completely independent. Judges are chosen by a special committee, on which politicians are in a minority, and they serve until the mandatory retirement age of 70.
Another institution which plays a role in the protection of human rights is the Attorney General. The Attorney General enjoys a unique status in Israel. His legal opinions am binding on the Government. If he refuses to defend a particular action of policy which is being challenged in court, the Government has no choice but to comply with his position. I can attest, both from my experience in representing petitioners in many human rights cases and from my later experience in the Attorney General’s office, that a large number of problems are solved in this way, with the Attorney General requiring significant changes in governmental policies even before the cases reach court.
In 1992, the judicial bill of rights was supplemented by the Basic Law: Human Freedom and Dignity and the Basic Law: Freedom of Vocation. Even though these do not include an exhaustive list of basic rights, the Supreme Court sees human dignity in its widest scope, and has said that it will interpret the Basic Law as guaranteeing freedom of religion, freedom of expression, freedom of movement, as well as other accepted basic rights. The Justices of the Court have also indicated that discrimination which offends dignity, such as discrimination on the basis of race, religion, sex or national origin, is prohibited under the Basic Law. The Basic Laws have also been applied to the private sphere, and not just to governmental actors.
These recent developments have been called "a Constitutional Revolution", and they allow, for the first time, judicial review of Knesset statutes passed after the Basic Laws.
The Ministry of Justice has proposed three additional Basic Laws, which are under consideration: Basic Law: Legal Rights, which will deal primarily with the rights of the individual in the criminal justice system, Basic Law: Freedom of Expression and Basic Law: Social Rights. These, we hope, will continue and advance this positive trend.
I would like to elaborate a bit on the central role of NGO’s in protecting human rights in Israel. We have mentioned this in our report, though the NGO’s may not have received the prominence they deserve. There are dozens of NGO’s doing important human rights work, bringing court cases, drafting proposed legislation, lobbying in the Knesset, handling individual complaints and educating the public. Needless to say, not only are there activities not hindered in any way by the government, they receive governmental encouragement and co-operation. Several NGO’s, such as the Association for Civil Rights in Israel and Defense of Children International, have been given access to prisons and they conduct inspection visits. The Education Ministry, the National Police, the Border Guard and the Army work together with NGO’s in conducting human rights education and training programs. The General Security Service has joined this trend and has invited human rights advocates to address its personnel. While some NGO’s, like the Association for Civil Rights in Israel, do not accept government funding, others have applied for and received money from the government to carry out important programs. Just by way of example, significant grants have recently been made to the Israel Women’s Network, the National Council for the Child, Defense of Children and B’Zchut – the Center for the Rights of Persons with Disabilities. These are all organizations which challenge governmental policies and bring litigation against the Government, but never has this adversary relationship in court prevented co-operation, since the Government and these NGO’s all strive toward a common goal.
Some of you have met with representatives of the Israeli NGO’s who have come to Geneva and you have received materials that they have prepared. They are quite open in their criticism of Government policies, and that is as it should be. They put the spotlight on what they see as the shortcomings and problem. In our report, while we obviously prefer to accentuate the accomplishments made on human rights issues, we have not ignored the problems and the areas in which full equality and full enjoyment of human rights have yet to be achieved.
I would now like to mention a few recent developments in the legislative sphere. Things are so dynamic in Israel, that in just the few months that have elapsed since we filed the report, the Knesset has passed several major pieces of civil rights legislation,
The Freedom of Information Act was enacted in May, and it guarantees by statutes a right that was previously recognized in the case law. This law is based on the premise that the Government holds information in trust for the people, and the people are entitled to receive it. The Act calls for public access to internal departmental regulations, and for the right to obtain specific information by request. Exceptions to that right, for reasons of privacy, national security, trade secrets and the like, draw heavily from the laws of other democratic countries. Special provisions providing for the release of environmental information, regardless of claim of trade secrets, were added to the final enactment.
A law setting up the Authority for the Advancement of the Status of Women was passed in March. This is a unique authority in Israel, in that its governing bodies include both representatives of governmental Ministries and NGO’s. On the same day, a far-reaching law prohibiting sexual harassment was passed, whose primary purpose is to protect women and homosexuals, the main victims of such harassment, in the workplace, in the armed forces, in the educational system and in every other context. This is one of the most comprehensive laws of its kind in the world, and has received international attention. An English translation of the law was submitted to the Secretariat.
The Knesset also intervened in what are ostensibly the internal affairs of private companies, in the interest of achieving equal opportunity. Corporations whose stock is publicly traded will now be required to ensure that there will be at least one woman on their Boards of Directors. The first part of the Law for Equal Rights for Persons with Disabilities was enacted, establishing the fundamental principle of equality for such persons, and for non-discrimination and affirmative action in employment. The law also requires making public transportation systems accessible for people with disabilities. Additional chapters, dealing with education rights, housing rights, accessibility of public accommodations and other issues, are currently before the Knesset. We have also submitted a translation of this law.
One more new law deserves mention, in light of the inherent right to life in Article 6. The Knesset passed a so-called "Good Samaritan Law", drawing on common religious traditions, which requires a person who sees another individual in immediate mortal danger, as a result of an unexpected situation, to take appropriate action to save that person’s life or to prevent him or her serious injury.
Our Declaration of Independence speaks of our commitment to the principles of liberty, justice and peace, as envisaged by the Prophets of Israel. I would like to conclude by quoting one of those Prophets, the Prophet Micah, from the weekly portion read this past Sabbath in synagogues in Israel and all over the world. Micah tells us what God expects of man: not sacrifices, not worship but rather three things: to do justice, to love compassion and to walk modestly with the Lord.
We in Israel have tried to live up to that standard. We have established a system of justice under which every individual his access to an independent judiciary, which applies the norms of human rights and natural justice to all actions of government. We have established a social welfare system which strives to ensure human dignity to all residents of the State, and has succeeded in achieving a standard of living, a level of health care and life expectancy which am among the highest in the world. And in all modesty we must admit that we have not yet accomplished all that we have wanted to, and indeed not all that we should have.
We will continue in our efforts to ensure full civil and political rights to all Israelis, men and women, Jews and Arabs. We have great hopes that the achievement of peace with the Palestinians and with our neighboring States will help solve many of the lingering human rights problems that we still face. We welcome the discussion which will follow and the comments of this Committee, as well as the ongoing dialogue with the NGO’s which will continue when we return home. We see this process as one of the ways to clarify the issues and problems, to remove misunderstandings, when possible, and to move closer to attaining the goals which are imbedded in the Covenant and are common to all of us.