Alan Baker and Ady Schonmann
Published in Justice – The International Association of Jewish Lawyers and Jurists (Vol. 19, Winter 1998), 23.
Alan Baker is the Legal Adviser of Israel’s Foreign Ministry. Ms. Ady Schonmann is a human rights lawyer, member of the Legal Office of the Israeli Foreign Ministry. The views expressed are the authors’ and do not necessarily represent the views of the Government of Israel.
In the formative years following its establishment as a State, Israel found itself faced with a basic quandary touching on the very tenets of its existence as a member of the international community. This quandary arose, first and foremost, out of the unique composition of its population, and the concomitant problems which arose in the integration, absorption and day to day dealing with the religious, cultural, social and political aspects inherent in the development of a new society based on communities of differing religions and cultures. Added to this, were the security and external political problems emanating from a situation of belligerency imposed by its neighbours, including periods of open hostility as well as ongoing acts of terror systematically directed against its civilian population.
With this internal situation as a factor in its early development and in the development of its internal political, legal, economic, cultural and social infrastructure, Israel had to weigh this unique quandary vis a vis the desire, in the external context, to realize, in every way, its rights and duties as a bona fide member of the international community.1
Thus, throughout the early years, the oft-repeated question was asked whether Israel, faced with such a unique internal, political and social mosaic, and dealing, in its own way, with the legislation and application of human rights norms in a uniquely developing society, could undertake the additional burden inherent in the reporting requirements of various human rights Conventions which were then being drafted and adopted. Additionally, and in light of Israels political standing in United Nations bodies, the question also arose whether the human rights monitoring bodies functioning according to the norms and criteria set out in the human rights instruments which serve as a basis for reviewing implementation, were duly equipped and able to objectively and impartially consider Israels position in the context of its unique problems and social and political structure.
This dilemma remained until the second half of the 1980s when governmental authorities came to the conclusion that Israels legislative and legal infrastructure as well as governmental practices in the social, economic, cultural and political spheres had developed to the extent that Israel was able to open itself to the international scrutiny accompanying accession to the human rights instruments. In retrospect, this trend in policy may perhaps be attributed to the drafting of a series of "Basic Laws" forming the basis of a constitutional framework, and to the growing judicial activism of Israels Supreme Court since the 1980s. That is to say, Israels accession to the human rights treaties was a manifest affirmation of its existing law, as developed in a body of jurisprudence protecting human rights and liberties.
Accordingly, on 3 October 1991, Israel notified the Secretary General of the United Nations of its ratification of five of the principal human rights instruments cited below2, and in so doing reaffirmed worldwide its already existing commitment to the on-going process of protecting and promoting human rights within its territory. Accordingly, like every other State Party, Israel undertook to submit to the respective treaty bodies, periodic reports on the measures adopted by it to give effect to the rights and duties set out in the Conventions, and to openly and constructively discuss its policies and practice with those treaty bodies.
In the endeavor to comply with the treaty requirements for reporting, the Ministries of Justice and Foreign Affairs embarked on extensive research in order to produce the required Reports. Government ministries as well as other relevant government institutions were asked to supply information and data concerning their areas of operation. To this end, local non-governmental organisations (NGOs) as well as other independent and academic research authorities were involved in the preparation process of the reports. NGOs also were given opportunities to consider and comment upon the State reports, and to submit complementary "shadow" reports.
This article is intended to provide a brief description of Israels recent presentations under the human rights instruments to the monitoring committees pursuant to the International Covenant on Economic, Social and Cultural Rights (ICESCR)3; the International Covenant on Civil and Political Rights (ICCPR)4; the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)5; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)6, and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)7. Israels initial report pursuant to the Convention on the Rights of the Child8 is currently in preparation and is thus not covered by the present article.9
II Special Considerations
In proceeding to research and produce the reports required by the human rights instruments, it became evident that several very unique questions, applicable only to Israel in the light of its special sui generis character, population composition, and political environment, had to be addressed and explained. These involved such matters as Israels character as a Jewish and Democratic State (an issue repeatedly raised by rapporteurs of the treaty bodies and discussed in some of the Reports as well as in the oral presentations by the Israeli delegations). The continued, formal existence of a state of emergency in Israel since the creation of the State also gave rise to wide-ranging comment and the need for general explanation. In addition, the question of the applicability of the human rights instruments to areas beyond Israels "national territory", and specifically to the areas of the West Bank and the Gaza Strip, arose in all the various contexts in which Israel was required to report on implementation of the instruments. This issue was, and continues to be especially relevant in light of the political developments taking place in the area at any given moment during the course of the reporting process.
- Jewish and Democratic State
Israels constitutional system is based on two fundamental tenets: that the State is democratic and that it is also Jewish. These principles are rooted in the 1948 Declaration of Independence, which defined the State of Israel as a Jewish State10, founded as the only homeland of the Jewish people – the need for which became apparent after the unfolding of the horrors of the Holocaust. Yet, on an equal footing, this Declaration also guaranteed to all of its citizens, irrespective of religion, race or ethnic background, the right to enjoy equal social and political rights within the State. Although there has been some question whether the Declaration of Independence constitutes a binding constitutional document, the 1992 Basic Law: Human Dignity and Liberty11 explicitly provides both that the human rights set out in that law shall be interpreted in the spirit of the principles of the Declaration of Independence, and that the purpose of the Basic Law is to establish the values of the State of Israel as a Jewish and democratic State.12
The Jewish nature of Israel is reflected, inter alia, in the demographic composition of the State, in the automatic citizenship bestowed upon any Jew who wishes to immigrate to Israel, in the design of the countrys flag, and in the celebration of Jewish festivals as national holidays. Furthermore, the religion-oriented character of the State is reflected also in personal status issues, which generally fall within the jurisdiction of the religious courts of each respective religious sect. The fact that within the Jewish community itself, fundamental differences exist as to what it means to be a Jewish State, render the interrelationship between religion and state a particularly complicated one. While these two tenets may find themselves, on occasion, at odds with each other, there is no inherent impediment to reconciling them, and the constitutional challenge facing Israel is to create a synthesis between them.
- State of Emergency
A State of Emergency has existed in Israel since 5 May 1948, due initially to the basic threat and realisation of hostilities directed by neighbouring states, aimed both at Israels existence as well as against the life and property of its population. The on-going struggle against acts of violence and terror committed by extremist groups and individuals in centres of civilian life, including public markets and means of transport, compounded the problem and obliged the Government to take measures to meet the exigencies of the situation, both for the defense of the State as well as for the protection of life and property. Such a need was addressed by the declaration and maintenance of the state of emergency, which included the exercise of powers of arrest and detention.13
Faced with the conflicting imperatives of preserving the democratic character of the State on the one hand, while maintaining public security and defending the lives of individuals under its jurisdiction on the other, Israel has consistently sought to maintain its democratic character, preserving and implementing human rights despite the need to act both against terror and external hostility. In 1992 the Knesset approved the "Basic Law: Government"14, which provided that a state of emergency could only apply for one year and could only be renewed by vote in the Knesset. This altered the pre-existing situation in which a continuing state of emergency had existed ever since the establishment of the State. Consequently, a state of emergency is no longer necessarily a permanent situation, but is subject to annual parliamentary debate and scrutiny. In this context, the Ministry of Justice is also currently reviewing all emergency regulations in order to minimise the number of emergency provisions to those which are absolutely vital.
- Scope of Application
Israels position with regard to the applicability of the human rights instruments to the West Bank and the Gaza Strip has become the subject of extensive debate in the human rights treaty monitoring bodies. Israel has consistently maintained, pursuant to Article 29 of the 1969 Vienna Convention on the Law of Treaties, that a States jurisdiction is not binding beyond its national territory unless otherwise determined in the treaty. In the context of Israel, the West Bank and the Gaza Strip, the question arises which legal regime applies in the West Bank and the Gaza Strip (hereinafter: the territories) – human rights law or humanitarian law.15
Even assuming that a State Party is indeed accountable for implementation of human rights conventions in areas over which it exercises actual and effective civil or military control, this assertion is, to a very large extent, not applicable in Israels sui generis context. In light of the on-going negotiating process with the PLO on implementation of the 1995 Interim Agreement on the West Bank and the Gaza Strip, and of the more recent 1998 Wye River Memorandum, the legal regime in the territories is in a state of constant change, with powers and responsibilities being transferred to the Palestinian autonomous administration in varying spheres of civil life. In fact, virtually all spheres of government covering civil aspects of life in the West Bank and the Gaza Strip, as well as a variety of security issues, are now under complete Palestinian responsibility. Accordingly, both legally as well as practically, Israel is not in a position to enforce compliance with human rights norms in the territories in many of the spheres covered by the Covenants.
Israel remains responsible for powers and responsibilities which have not been transferred to the Palestinians, including external security and to a certain extent, in specific areas, internal security and public order, as well as a number of civilian responsibilities relating to land in areas where there is little civilian population. Consequently, to the extent that it still has relevant data, Israel has expressed its willingness to share information and to respond to queries raised in the various human rights monitoring bodies.16
Notwithstanding the difference in origin and content of the various human rights instruments, they nevertheless share common elements of convergence and overlapping, both as regards concept as well as in their application. With a view to addressing this problem and reducing duplication in the different supervisory bodies, a special Report of the Secretary-General was prepared17 in 1989 indicating the extent and nature of the overlapping issues dealt with in the six principal human rights treaties.
As most of the reports presented by Israel, as cited above, are initial reports, there exists, of necessity, a greater level of overlapping in some spheres, mainly in the background presentation required by each Covenant, but also in substantive matters covered by the Covenants. Hence, in this present review of Israels presentations before the international human rights bodies, despite the fact that various issues figure repeatedly and extensively, both in Israels reports as well as in the discussions of Israels implementation of the various Covenants, reference is made only once to each such issue.
III Appraisal of Israels Most Recent Presentations under Human rights instruments
- The International Covenant on Economic, Social and Cultural Rights (ICESCR)
The development and protection of civil rights and personal freedoms for all citizens and residents of Israel has been, and still remains dynamic and ongoing. Given the lack of a written constitution, Israels constitutional framework is set out in a series of Basic Laws and Supreme Court decisions. The Supreme Court views human dignity in its widest scope, indicating that it would interpret the 1992 "Basic Law: Human Dignity and Liberty" as guaranteeing rights and freedoms which are not explicitly mentioned in it, such as the freedom of religion and conscience18 and the freedom of expression19. It has also affirmed that discrimination which offends human dignity, such as discrimination on the basis of race, religion, sex or national origin, is prohibited under the Basic Law20. In addition, the Supreme Court has applied the Basic Laws to the private sphere.21
Since the creation of the State, Israeli governments have consistently exercised responsibilities for the provision of social services in those spheres covered by the Covenant. There is an effective social safety net; illiteracy and school drop-out rates have declined, and infant mortality have significantly dropped while immunization percentages of children has reached around 95 per cent between 1982 and 1995.This trend of gradual development complies with the norm of progressive realization of rights set out in the Covenant.22
An illustration of the trend of legalizing welfare in Israel is manifest in the area of social security. Since the enactment in 1995 of the National Health Insurance Law the sphere of health insurance has been revolutionised, improving in particular the situation of Arab and Bedouin populations in Israel by obligating health provision institutions to accept all applicants as members and to provide residents with a "basic package of services" as determined by the government. Equal access to health care is also ensured in the 1996 Patients Law, which prohibits discrimination in health care, and instructs that medical care be provided under professional standards while protecting the patients human dignity and privacy.
With regard to equality, the first part of the 1998 "Equal Rights for People with Disabilities Law" was recently enacted23, establishing the fundamental principles of equality, non-discrimination and affirmative action in employment for people with disabilities. It also requires accessibility by the disabled to all means of public transportation.
While Hebrew and Arabic are official languages in Israel, the Arab minority, whose proportion within the population has risen over the years, has indeed suffered the ramifications of the Arab-Israeli conflict, and that impeded its legitimate quest for equal rights. However, the rate of improvement in the rights of the Arab population had been more pronounced, although gaps between the Arab and non-Arab sectors of the population still exist. Substantive steps have been taken to gradually remedy this situation. Hence, even during a period of budget cuts, budgets were divided 64:45 per cent between Jews and Arabs, while Jews constitute almost 80 per cent of Israels population. Progress has also been made in construction of classrooms, nurseries and day-care centers in the Arab sector.
Questions arose in the ICESCR Committee with regard to the legal status of the World Zionist Organization (WZO), and the Jewish Agency for Israel (JAFI), which are private non profit organizations funded by donations from Jews throughout the world. These institutions receive a special status under Israeli law, and their activities are dedicated to helping Jews, in particular those at risk, to bringing them to Israel and supplying them with basic housing and needs. However, it was stressed that these activities are not discriminatory vis a vis non-Jews. Israel still remains responsible for meeting the economic, social and cultural needs of all its citizens under the Covenant. Moreover, there are organizations in Israel that assist only Arabs, yet it is not claimed that such activity is discriminatory. Similarly, the 1950 Law of Return which provides every Jew with the right to immigrate to Israel, does not prevent others from immigrating.24
With regard to questions raised concerning citizenship status of Arab residents of East Jerusalem, most have not opted for citizenship and have rather preferred to remain permanent residents.
- The International Covenant on Civil and Political Rights (ICCPR)
One of the central questions raised in the context of this Covenant (as well as in other contexts) was that of administrative detention25 – a measure used by Israel as part of the above-mentioned balance between human rights and security considerations. This measure has been part of Israeli law since the end of the British Mandate in 1948, with the enactment of the emergency laws. It has been in use in the territories since 1967 (pursuant to British mandatory legislation still valid there), being considered necessary in situations where the military commander felt it was needed in order to maintain security in the area. Faced with continuing terrorism and threats to security, Israel thus finds itself obliged to resort, in specific situations, to the preventive measure of administrative detention. Strict limitations have been imposed on the scope of the emergency provisions under which administrative detention orders are issued, in order to minimise the potential harm to human rights.
From the point of view of internal Israeli law, the emergency regulations, are not considered incompatible with the provisions of the "Basic Law: Human Dignity and Liberty", dealing with encroachment on human rights, since they are used "for a proper purpose and for a period and to an extent that is no greater than required".26 While it was alleged in the Human Rights Committee that administrative detention is used to justify incarceration of persons where there is insufficient evidence to convict them, Israeli representatives, in rejecting this allegation, stressed that it is only used in circumstances where the usual judicial procedures are inadequate because of a danger to sources of information or a need to safeguard classified information which cannot be revealed in open court. It is resorted to as a consequence of extreme circumstances, acknowledged and provided for in the 1949 Fourth Geneva Convention.27 Moreover, the administrative detention procedure in the territories adheres to and in several respects surpasses the protections to the rights of detainees provided therein.28
Among other issues raised within the ambit of Israels presentation before the United Nations Human Rights Committee were questions regarding equality and non-discrimination, the state of emergency, the right to life and interrogation techniques used by the General Security Services (GSS). These subjects were raised in other Committees and are discussed in the relevant sections of this article.
With regard to the right to self-determination, and without entering here into a detailed discussion of the components of self-determination (external and internal), Israels position, as presented to the United Nations Human Rights Committee, held that a process of external self-determination is presently taking place through the ongoing Middle East peace process, as established in the series of agreements between Israel and the PLO, in which the Palestinians are in the process of freely negotiating their status.
In this context, and in response to claims in the Committee (as well as in other Committees, including the CERD – see below) that Israels policy of settlements is inconsistent with the right of self-determination, Israel clarified that the establishment of any settlement is predicated upon an extensive analysis of the title to land concerned, as well as an intricate appeals procedure (both to an Appeals Board, as well as to the Supreme Court sitting as the High Court of Justice) in order to ensure that private rights are not prejudiced. Moreover, it was mutually agreed by Israel and the PLO that the issue of settlements will be negotiated between them during the final stage of their negotiations on the permanent status of the territory. As such, this issue is indeed part and parcel of the external self-determination process.
As regards the right to life, the 1945 Defense (Emergency) Regulations in force in the territories, allow for the imposition of the death penalty for offenses involving illegal use of firearms against persons, or use of explosives or inflammable objects with intent to kill or to create grievous bodily harm (Regulation 58). However, in practice, the death penalty is neither requested nor has it been imposed, even for the most severe offenses. In any event, pursuant to the 1982 Criminal Procedure Law (Consolidated Version), imposition of the death penalty requires an automatic appeal to the Supreme Court even if the defendant has not appealed the sentence or conviction.
- The International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
In presenting its report to the CERD Committee, Israel elaborated on its policy of closing the gaps in treatment between Jewish and non-Jewish sectors, stressing the policy of affirmative action and other efforts by the government to reduce and eventually eradicate the social, economic and educational gaps between the Jewish majority and the Arab minority.
During the 1990s there has been a significant move toward equality in the allocation of resources to Arab localities, by several government ministries. The standard of living of most elements of the Arab population in Israel has risen considerably, including a rise of more than ten years in life expectancy,29 which is now the highest in the Middle East. Arab citizens have become part of the political system in Israel; in addition, as Israeli laws prohibit all forms of discrimination by private or public employers, the 1995 amendment of the Equal Opportunity in Employment Law prohibits discrimination in the labor sphere on the grounds of national, ethnic origin, country of origin, beliefs, political views, political party, affiliation or age.
In its presentations before this Committee, and despite all efforts aimed at maintaining the professional and substantive nature of the subject, Israel has been obliged to reject repeated attempts by Rapporteurs and Committee members to represent various aspects of the Arab-Israeli conflict in terms of racial discrimination, or in a selective or generalised manner, as a means of justifying the Committees dealing with political aspects of matters related to the conflict. The need to maintain a strict differentiation between the substantive subjects covered by the Convention and the political issues dealt with in the various political fora of the United Nations did not, however, prevent the Committee from adopting clearly politically orientated conclusions and recommendations bearing little relation to the subject matter of the Committees mandate.
- The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(CAT)
In presenting its position to the United Nations Committee on Torture, Israel elaborated on the dilemma confronted on a daily basis, stemming from its obligation, on the one hand, to comply with international human rights norms as reflected in the provisions of the Convention, and the necessity, on the other hand, to conduct an ongoing struggle against acts of terrorism, which carry alarming threats to public safety. This struggle against terrorism narrows down in many cases to a need to interrogate suspects who have knowledge of imminent acts of terror. As torture is categorically prohibited under Israeli Law,30 the 1987 Landau Guidelines31 sanctioned the use of "moderate physical pressure" vis a vis detainees, in exceptional cases in order to gain vital information on impending terrorist actions, including suicide bombings.
The Committee discussed, together with Israels representatives, allegations that measures such as sleep deprivation, loud music, hand-cuffs and shaking of detainees, constitute "torture" or "cruel, inhuman or degrading punishment" according to the Convention. In this context Israel reiterated its position calling for some analysis by the Committee of the definitions built into the Convention with a view to establishing acceptable criteria by which to determine if any particular act may or may not be considered to constitute "torture" or "cruel, inhuman or degrading punishment".
Israel detailed in its presentation a number of reforms, such as the creation of the Office of Public Defender, the creation of a committee to recommend oversight of police violence, amendments to the Criminal Code, ministerial review of several security service interrogation practices and the creation of a committee to review the rules of evidence. Moreover, a number of legislative reforms have taken place in the area of arrest and detention, such as the recent 1996 Criminal Procedure (Powers and Enforcement – Arrest) Law, which aims at ensuring maximal protection of a persons liberty and rights in all phases of the detention process.
In response to calls by the Committee for the publication of the classified sections of the Landau guidelines, Israel asserted that the secrecy of the interrogation procedures used by the General Security Service (GSS) is crucial, and making that information public could undermine efforts to prevent terrorist actions. However, clear guidelines and detailed instructions have been established which guide the GSS in all aspects of the interrogations process. Additionally, a unique real-time mechanism of judicial review of interrogation procedures enables detainees under interrogation to petition the Israeli Supreme Court at any given moment, and the Court is empowered to prohibit any practice which it considers to be contrary to the law, constituting torture or cruel, inhuman or degrading treatment.
- The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Having acknowledged the importance of taking a proactive stance both in the public and the private sphere, there have been various governmental initiatives to promote the advancement of women. The principle of equality is perceived as substantial and not formal, and is manifest in legislation such as the Equal Pay (Male and Female Employees) Law of 1996, the Prevention of Domestic Violence Law of 1991, and the Single Parent Family Law of 1992 entitling single-parent families to higher income support. In addition, the 1997 Prevention of Sexual Harassment Law32 which expands the prohibition on sexual harassment, broadly defined, from being solely a criminal offense to grounds for civil action as well, and the 1998 Law setting up the Authority for the Advancement of the Status of Women,33 created a unique authority in that its governing bodies include both representatives of government ministries and NGOs. The progressive legislation as well as comprehensive programs for dealing with violence against women and equal employment opportunities were commended by the Committee34 in its consideration of Israels Report.
The Supreme Court also contributes to the ongoing process of instilling norms and values of gender equality by ruling that the exclusion of women from participating in an Air Force Fighter pilots basic training course is illegal discrimination.35 It has also ruled36 that women who were obliged to retire from work at the age of 60, were discriminated against, vis a vis men, and consequently women may now choose to retire at the age of 65.
The problem of illiteracy in Israel is virtually non-existent among Jewish women and has significantly diminished among Arab women. More and more women are receiving advanced education and there is steady growth in womens participation in the workforce. Womens health has been steadily improving among all population groups in Israel, and infant mortality has fallen steadily. Pregnant women, as well as those who have just given birth, are provided with legislated rights and protections, and both men and women are allowed to take leaves of absence while undergoing fertility treatment. The latter has been covered under the basic package of health services. In addition, much progress has been made with regard to gender-based violence in Israel.
Following a 1995 enactment,37 the use of affirmative action has been introduced into the boards of directors of government companies and into the civil service, thereby contributing significantly to the advancement of women. While there has been little progress in the advancement of women at the national political level, womens participation in local politics is more encouraging. In addition, womens participation at the senior levels of government and the civil service has shown gradual improvement as well.
Admittedly, there still exist gaps in living conditions between Jewish and Arab women, which is partly due to reluctance of traditional Arab communities to allow women to work outside their homes. Similar problems are also common to Jewish immigrants from Ethiopia and eastern Europe. Hence, the government is allocating more resources in order to integrate them in Israeli society, and to improve their health, education and employment conditions.
Matters of personal status are governed by religious law in Israel, although the civil system does, in some spheres circumvent some of the difficulties facing women by religious laws. Since the role of religious tribunals in governing personal status has been considered basic and essential to Israels social fabric, Israel, upon ratifying the Convention, submitted reservations on this matter. Consequently, religious courts have exclusive jurisdiction in matters of marriage and divorce and concurrent jurisdiction in other matters of family law. However, there has been a gradual removal of issues from the jurisdiction of religious tribunals, and their rulings under certain circumstances are subject to Supreme Court review.
Notwithstanding significant substantive progress which has been achieved in the various fields of human rights covered in the different instruments, difficulties and dilemmas affecting their implementation still lie ahead.
As issues relating to human rights are drawing growing public interest, both within and outside Israel, Israel has welcomed the opportunity to conduct an open and constructive dialogue in the international sphere and to address the many queries – whether based on a genuine lack of information or on biased and manipulative propaganda issued for politically motivated reasons.
Upon becoming party to the various human rights instruments, Israel approached the task of reporting to the monitoring committees with openness and with a sincere effort to comply with the international standards and guidelines. Israel regarded, and continues to regard the fulfilment of its reporting duties both as a vital component of its foreign relations, in implementing its international obligations pursuant to international conventions, as well as an essential internal exercise aimed at discovering human rights problems within the system, addressing them and remedying them. Its representatives sent to introduce the respective reports were chosen on the basis of their professional expertise in the subject matter of the convention being dealt with, and given a mandate to respond in as frank, constructive and open a manner possible, whatever the subject.
At the outset of this article, we referred to the dilemma inherent in any reporting activity by Israel to an international body, and specifically to the extent to which such body would be able to rise above political considerations and deal, genuinely, with the substance of its mandate. Regrettably, in virtually all of the fora to which Israel has reported, the political double-standard was nevertheless evident, and cast its shadow, in one way or another, over any attempt to maintain a standard of professionalism, expertise and constructive engagement.38
This regrettable trend was particularly evident during the course of the presentations to the CERD, CAT and ICCPR Committees, and the most recent ICESCR Committee, which published its Concluding Observations relating to Israels report on 4 December 1998. These Concluding Observations appear to have virtually disregarded both Israels written report and the extensive oral presentations, explanations and responses to issues raised, as well as its accomplishments in a wide range of subjects covered by the ICESCR. The Observations appear to judge Israel in terms and by criteria far more critical than those used even with respect to reports of other countries.
Faced with what appears to be an irrepressible tendency by United Nations treaty organs, whatever their mandate, to adopt some element of double standard vis a vis Israel, and in some cases to taint their substantive discussions with United Nations politics, Israel will have to consider very carefully whether, and to what extent, its openness, sincerity and candid desire to conduct a professional and substantive dialogue with such bodies will be possible, and will serve its basic interests. In any event, considerable thought is needed in order to find ways to ensure that the work of these committees indeed fulfils the intentions of the drafters of the human rights conventions, and serves the genuine interests of human rights, and human rights alone.
1. Israel was accepted as a member state of the United Nations on 11 May 1949. See General Assembly resolution 273 III.
2. Israel had previously ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD) twenty years earlier, on 3 January 1971.
3. Adopted on 16 December 1966. Entered into force on 3 January 1976. Israel’s Combined Initial and Second Report was submitted to the United Nations on 28 November 1997 and circulated as United Nations Document CESR/E/1990/5/Add.39 dated 20 January 1998.
4. Adopted on 16 December 1966. Entered into force on 23 March 1976. Israel’s Combined Initial and First Periodic Report was submitted to the United Nations on 1 June 1998 and circulated as United Nations Document CCPR/C/81/Add.13 dated 2 June 1998.
5. Adopted on 21 December 1965. Entered into force on 4 January 1969. Israel’s Combined Seventh, Eighth and Ninth Periodic Report was submitted to the United Nations on 17 October 1997 and circulated as United Nations Document CERD/C/294/Add.1 dated 5 August 1997.
6. Adopted on 10 December 1984. Entered into force on 26 June 1987. Israel’s Second Periodic Report was submitted to the United Nations on 6 March 1998 and circulated as United Nations Document CAT/C/33/Add.3.
7. Adopted on 18 December 1979. Entered into force on 3 September 1981. Israel’s Combined Initial and Second Periodic Report was submitted to the United Nations on 8 April 1997 and circulated as United Nations Document CEDAW/C/ISR/1-2.
8. Adopted on 20 November 1989. Entered into force on 2 September 1990.
9. These Reports are distributed to officials in all government ministries and authorities, to members of the judiciary, to NGOs, scholars, policy institutes, public libraries, foreign diplomatic missions and Israeli embassies throughout the world. Translations in English, French, Russian, Spanish and Chinese have been distributed by the United Nations. Israel’s Reports under the CEDAW and CAT have also been circulated in Arabic.
10. United Nations Resolution 181(II) dated 29 November 1947, also provided for the establishment of a Jewish State and an Arab State in Palestine.
11. Passed by the Knesset on the 12th Adar Bet, 5752 (17th March, 1992) and published in Sefer HaChukkim No. 1391 of the 20th Adar Bet, 5752 (25th March, 1992); the Bill and the Explanatory Note were published in Haza’ot Chok, No. 2086 of 5752, p.60.
12. For a discussion of Israel’s Declaration of Independence as an international document, see Alan Baker "The Development of the Peace Process between Israel and its Neighbours" (Hebrew) in 14 Bar Ilan Law Studies (1998), No.2, p. 494
13. Thus, in conformity with the derogation clause of Article 4 (1) of the ICCPR, which explicitly refers to times of public emergency, Israel upon ratifying the Covenant, submitted a declaration with regard to the said Article, indicating that the situation in Israel constitutes a public emergency within the meaning of Article 4(1) of the Covenant.
14. Sefer HaChukkim No. 1396 of the 14th April 1992, p. 214. 15. The distinction between the two regimes and their respective applicability is the subject of an interesting initiative in the United Nations by the Hashemite Kingdom of Jordan, in which a very clear distinction is drawn between the human rights instruments which apply to normal state situations, as opposed to the norms of humanitarian law which apply in situations of belligerent occupation. See Letter dated 28 October 1981 from the Permanent Representative of Jordan to the United Nations addressed to the Secretary-General concerning a request for the inclusion of an additional item on a "new international humanitarian order", in the agenda of the 36th Session, and the Annex and Appendix distributed as document A/36/245 dated 30 October 1981. The Jordanian initiative has recently been renewed in the 53rd session of the General Assembly. See Document A/C.3/53/L.54, dated 17 November 1998.
16. With regard to the "Security Zone" in Southern Lebanon, Israel lacks effective control or jurisdiction over that area, except for self-defense operations against terrorists. Accordingly, its obligations under these Covenants do not extend to this area.
17. E/C.12/1989/3 (16 November 1988)
18. See, e.g., H.C.J 5016/96 Horev v. Minister of Transportation, 97 Takdin 421 (1997); H.C.J. 5394/92 Huppert v. "Yad Vashem", 48 (3) P.D. 353.
19. See, e.g., I.C.A. 2687/92 Geva v. Walt Disney Co., 48 (10) P.D. 251; H.C.J. 2481/93 Dayan v. Wilk et al., 94 (1) Takdin 1170; C.A. 105/92 Re’em Engineers and Contractors Ltd. v. Upper Nazareth Municipality, 47 (5) P.D. 189, 201.
20. H.C.J. 4541/94 Miller v. Minister of Defense, 49 (4) P.D. 94, at pp. 132, 135 (Dorner, J.); H.C.J. 721/94 "El-Al" Israel Airlines Ltd. v. Danilovitz, 48 (5) P.D. 749.
21. This view has been advanced in obiter dicta and by legal scholars. See, e.g., C.A. 239/92 "Egged" Cooperative Ltd. v. Mashiach, 48 (2) P.D. 66.
22. See Opening Statement of M. Atlan, Head of Department in the Legal Office of the Ministry of Labour and Social Affairs, to the ICESCR Committee (17 November 1998).
23. Sefer HaChukkim No. 1658 of the 3 March 1998, p. 152. This Law will enter into force in 1 January 1999.
24. Some criticism by the ICESCR Committee related to an apparent inequality between the rights of Jews pursuant to the Law of Return and the rights of Arabs to immigrate. As this matter involves issues presently being negotiated between Israel and the Palestinians we will not discuss it here.
25. Israel’s position on this matter is discussed in a paper on "the legal framework for the use of administrative detentions as a means of combating terrorism" by the Foreign Relations and International Organizations Department of the Ministry of Justice, dated 15 March 1998. 26. Article 8 of the 1992 Basic Law: Human Dignity and Liberty.
27. Article 78.
28. The procedural aspects of administrative detention are designed to ensure respect for due process. The courts are aware of the effect of administrative detention on the principle of due process and consequently examine the possibility that normal criminal proceedings should be applied instead. Only after such a test has been applied, will the courts determine whether the circumstances justify the issuance of administrative detention. All recipients of detention orders are granted the right to legal representation of their choice as well as the opportunity to appeal their detention order at two juridical levels including to Israel’s Supreme Court sitting as the High Court of Justice. In this respect, Israel was the first and remains the only country in the world to have opened its highest court to non-citizens petitioning against administrative orders. Administrative detention orders are issued for a period of up to six months, and may be extended only after judicial review.
29. A. Hareven, Retrospect and Prospects "Full and Equal Citizenship"? The Arab citizens of Israel on the 50th Anniversary, "Sikkuy, The Association for the advancement of equal opportunity" (1998), p.6
30. Section 2 of Basic Law: Human Dignity and Liberty prohibits any "violation of the life, body or dignity of any person as such", and Section 4 grants all persons the right to protection against such violations. These provisions are considered as constituting a general prohibition of cruel, inhuman or degrading treatment or punishment, including torture. See also Penal Law (1977), Section 227.
31. Report of a Commission of Inquiry into the Methods of Interrogation of the General Security Service Regarding Hostile Terrorist Activity, October 1987.
32. Sefer HaChukkim No. 1661 of 19 March 1998, p. 166.
33. Sefer HaChukkim No. 1661, of 19 March 1998, p. 171.
34. Report of the Committee on the Elimination of Discrimination against Women (Sixteenth and seventeenth sessions), General Assembly Official Records (52nd Session) Supplement No. 38 (A/52/38/Rev.1) under paragraph 151.
35. See, ibid., H.C.J. 4541/94 Miller v. Minister of Defence.
36. H.C.J. 104/87 Nevo v. National Labour Court et al., 44 (4) P.D. 749.
37. The 1995 State Service (Appointments) Law (Appropriate Representation).
38. For an interesting critique of the United Nations human rights treaty implementation system see Prof. Anne F. Bayefsky, Report on the UN Human Rights Treaties: Facing the Implementation Crisis, International law Association, Report of the 67th Conference, Helsinki (1996), p.337.