TABLE OF CONTENTS

PRESIDENT'S MESSAGE / Hadassa Ben-Itto Ð 2

The West Bank and Gaza Strip: Phase Two / Joel Singer Ð 5

Customs Aspects of the Interim Agreementwith the Palestinians / David Shimoni Ð 18

The Restitution of Jewish Property in Eastern Europe / Shevah Weiss Ð 19

Magen David Adom and the Red Cross / Morris B. Abram Ð 22

Abraham Lincoln Marovitz at 90 / Haim Cohn Ð 24

The Future of Religious Intolerance / Daniel Lack Ð 25

Highlighting Constitutional Changes in theIsraeli Legal System / Yaffa Zilbershatz Ð 28

TheÒArdeatine GravesÓ Massacre / Oreste Bizazza Terracini Ð 33

The Influence of Jewish Law in Anglo-American Law / Roberto Aron Ð 37

Spanish Parliament Revises the Criminal Code / Alberto Benasuly Ð 40

JEWISH LAW

Neither a Borrower nor a Lender be / Jonathan M. Lewis Ð 41

FROM THE SUPREME COURT OF ISRAEL

Distinction or Discrimination in the Israel Air Force Ð 46

Cover:First Day Issue commemoratingassassinated Prime Minister YitzhakRabin, courtesy of the Israel PhilatelicService.

Photographs on page 3 provided courtesyof the Israel Government Press Office.

Views of individuals and organizationspublished in JUSTICE are their own, andinclusion in this publication does notnecessarily imply endorsement by theAssociation.

JUSTICE is published by:The International Associationof Jewish Lawyers and Jurists10 Daniel Frish St., Tel Aviv 64731, Israel.Tel: 972-3-691-0673Fax: 972-3-695-3855

© Copyright (1995) by IAJLJISSN 0793-176X

Printed by Shmuel Press Ltd.27 Shoken Street, Tel Aviv,Tel: 972-3-682-2056.

No.7 December 1995

Editorial Board:Judge Hadassa Ben-IttoAdv. Itzhak NenerAdv. Myriam AbitbulDan PattirAdv. Rahel RimonProf. Amos ShapiraDr. Mala TaboryDr. Yaffa Zilbershats

Editor-In-Chief:Dan Pattir

Co-ordinating Editor:Adv. Rahel Rimon

Graphic Design:Ruth Beth-Or

The International Association of Jewish Lawyers and Jurists

No. 7December 1995

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am writing this message, in Tel-Aviv, on November 5, the day thatmarks the Shloshim of the murder of IsraelÕs Prime Minister ItzhakRabin.

Life in Israel came to a standstill on Saturday night, 30 days ago,when Prime Minister Itzhak Rabin was assassinated in cold blood inthe center of Tel-Aviv, at the conclusion of a mass rally calling forpeace and non-violence. It is not only his immediate family who satShiva, observing the traditional seven days of strict mourning. Awhole nation sat with them. In an unprecedented authentic wave ofmourning, people made a symbolic tear in a garment as they wouldon the death of a blood relative; some men did not shave and somewomen sat on low chairs; people cried openly and lit candles in

public places and in front of RabinÕs residence; many scribbled expressions of horrorand sadness on walls of buildings, from others came admissions of guilt and promises ofcommitment to peace and to a different future. The world witnessed a bereaved andshocked nation trying to come to terms with the fact that its democratically electedleader had been murdered by a fellow Jew purporting to act from ideological reasons, inwhat he deemed to be the execution of GodÕs will.

Many compared the situation to that of the Yom Kippur War, and in a way, it is a faircomparison, not only as to the element of surprise but also because Yom Kippur ismainly a day of Cheshbon Hanefesh, not only a day of atonement but also a day of reck-oning. Indeed, Israeli society and Jewish communities everywhere, are now in theprocess of Cheshbon Hanefesh, daring to pose questions which were formerly taboo,facing moral, cultural and ethical dilemmas, openly admitting mistakes, and, most of all,asking again and again where we all went wrong, whether by act or omission.

This process has been long overdue and tragically it took the brutal slaying of anelected head of state to make us take the first steps on the road to frank self-evaluationand soul searching. This road must now be followed openly, courageously and persis-tently. Conclusions, even painful ones, must be drawn fearlessly. Israeli society has beenplaced under an X-Ray. The results indicate the need for major surgery before anyprocess of healing can commence.

Israel is back at work. Politicians are again examining results of polls and makingdeals in anticipation of an election year. The democratic rules have been strictlyobserved in the quick appointment of a new government, committed to continue thepeace process in the spirit of the late Itzhak Rabin.

But the wounds have not healed. It will take more than the official period of mourningto implement the grand decisions publicly announced by everybody who had access to atelevision camera in those first days of shock, be it politicians, religious leaders, educa-tors, representatives of the media or members of the legal community. The Commissionof Inquiry appointed by the Government of Israel will decide how the most protectedperson in the country could have been so negligently exposed to the shots of an assassinin a public square, but the citizens of Israel must find answers to other burning questionswhich will not, and should not, go away:

These questions now high on the national agenda concern us in the legal community.We can no longer avoid defining clear boundaries to the freedom of expression which is

PRESIDENT'SMESSAGE

I

continued on page 4

YITZHAK RABIN 1922-1995

Left column, top to bottom: The coffin of assassinated PrimeMinister Rabin borne on the shoulders of IDF generals; thelying-in-state on the Knesset plaza, Jerusalem; over 80 heads ofstate attend the funeral.Right column, top to bottom: Late Prime Minister YitzhakRabin addressing the Ninth International Congress of ourAssociation; Israelis mourning on the site of the assassination inthe Kings of Israel Square, Tel Aviv, now renamed YitzhakRabin Square.

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so important to the fabric of our democratic society, and which is being so cynically anddangerously exploited by those who care nothing for democracy and for constitutionalrights. If we have learned anything from this national tragedy, we have learned the realmeaning of Òfighting wordsÓ. We Jews are particularly fit to bear witness to the easewith which words can be turned into weapons in the hands of fanatics. In a democraticsociety people must be free to speak their minds and voice their opinions without fear orapprehension, but they should not be allowed to use this freedom to delegitimize othersand set them up for murder.

In a public trial held by our Association at our Eighth International Congress held inJerusalem in December 1990, an international panel of 5 judges examined the nature oflimitations which a democratic society can legally impose on the spread of hate prop-aganda. A majority of four judges, including the former President of the Supreme Courtof Israel, Justice Moshe Landau, the former Deputy President of the Supreme Court ofIsrael, Justice Miriam Ben Porat, the President of the Cour De Cassation (the SupremeCourt) of France, Pierre Drai, and Lord Justice Harry Wolf of England, held that aprivate television station spreading anti-Semitic propaganda and denying the Holocaust,should be shut down, its broadcasting license revoked. The protection of free speech in ademocratic society should not be extended to Òhate speechÓ aimed at minorities orgroups.

The question now faced by the young and vulnerable Israeli democracy is much morecomplex: what limitations, if any, may legitimately be imposed on speech uttered in theframework of political dialogue on matters in dispute between political parties.

Today, and for the past three years since the signing of the Declaration of Principleson the tranquil lawns of the White House, the people of Israel have finally been forcedto come face to face with some of the most difficult ideological issues at the core ofIsraelÕs existence and also for the first time to accept and deal with solutions which offerhope to many but are also repugnant to others.

Hate speech directed at IsraelÕs government and IsraelÕs elected leaders has reachednew heights. While every enlightened democracy recognizes the necessity of enablingpolitical opposition to freely express its ideas and attempt to bring down the governmentthrough parliamentary means, such freedom cannot be extended to individuals advo-cating civil insurrection and legitimizing murder. The boundaries between free speechand incitement to insurrection are so thin as to be almost invisible, but following thehorror of an actual political assassination Israel no longer has a choice. Israel mustdecide where those boundaries lie.

Society as a whole must confront this dilemma. The role of the legal community willbe to shape the constitutional framework in which the moral and ethical principles aregiven their due weight.

The forthcoming Tenth International Congress of the Association will be convened inthe atmosphere of debate and soul-searching now prevailing in Israel. Our gathering inIsrael at this time will enable us to make our own contribution to the public debate onthese fundamental issues.

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The author is the Legal Adviser of the Israeli Ministry of Foreign Affairs. Henegotiated, on behalf of Israel, the Oslo Declaration of Principles, as well as allsubsequent Israel-PLO implementing agreements, including the most recentInterim Agreement. The views expressed in this article, however, are of theauthor and do not necessarily reflect those of the Israeli Ministry of ForeignAffairs.

n September 28, 1995, Israel and the PLO signed theInterim Agreement on the West Bank and the GazaStrip in Washington, DC ("the Interim Agreement").Broadly, this agreement sets out to extend Palestinianself-government arrangements, which formerly

covered only the Gaza Strip and the Jericho Area, throughout theWest Bank. The Interim Agreement contains detailed arrange-ments for the election of a self-governing authority - thePalestinian Council, and provides for the transfer of powers andresponsibilities to the Council from the Israeli military govern-ment and its Civil Administration. The Interim Agreement alsocontains extensive security arrangements, including arrange-ments for the redeployment of Israeli military forces in the WestBank. In addition, the agreement regulates the relations betweenIsrael and the Palestinian Council in legal and economic matters,and establishes a framework for encouraging programs of coop-eration between the two sides.

The Interim Agreement constitutes the third out of four stagesof implementation established by the Declaration of Principleson Interim Self-Government Arrangements signed inWashington, DC on September 13, 1993 ("the DOP"). The DOPsets out the framework and principles to govern Israeli-

Palestinian relations during a five year transitional period untilthe implementation of permanent status arrangements. Thisframework seeks to bring about a permanent change in the rela-tions between Israel and the Palestinians. In the words of thepreamble to the Interim Agreement, Israel and the PLO (whichsigned the agreement as the representative of the Palestinianpeople) are determined "to put an end to decades of confronta-tion and to live in peaceful coexistence, mutual dignity andsecurity". They also reaffirm "their desire to achieve a just,lasting and comprehensive peace settlement and historic recon-ciliation". Finally, they recognize that "the peace process ... aswell as the new relationship established between the two Parties... are irreversible". As detailed below, the DOP envisages thedevelopment of this process in four stages, of increasingcomplexity and sensitivity:

1. Gaza-Jericho Arrangements

The first stage of implementation of the DOP was theAgreement on the Gaza Strip and the Jericho Area, signed inCairo on May 4, 1994 ("the Gaza-Jericho Agreement"). Thisagreement gave effect to the "Gaza first" approach of the DOPby implementing the DOP's provisions dealing with the with-drawal of Israeli military forces from the Gaza Strip and theJericho Area and the transfer of powers from the Israeli militarygovernment and its Civil Administration to a PalestinianAuthority. Significantly, because this first stage occurred beforethe Palestinian elections, the members of the Authority were notelected but rather appointed by the PLO with Israeli approval.

The West Bankand Gaza Strip:

Phase TwoJoel Singer

O

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2. Preparatory Transfer of Powers and Responsibilities.With a view to avoiding an unbalanced situation in which self-

government arrangements were in effect in the Gaza Strip andthe Jericho Area, while the rest of the West Bank continued to beplaced under military government in its fullest scope, the DOPcalled for "Early Empowerment" arrangements in the West Bankas the second stage of implementation of the DOP. In otherwords, the DOP provided that some civil powers and respon-sibilities would be transferred to the Palestinians throughout theWest Bank, before the entry of the Interim Agreement into force.Accordingly, on August 29, 1994, Israel and the PLO signed theAgreement on the Preparatory Transfer of Powers andResponsibilities, which provided for the transfer of six civilspheres to the Palestinian Authority. A second agreement of asimilar nature - the Protocol on Further Transfer of Powers andResponsibilities, signed on August 27, 1995 - provided for thetransfer of an additional eight spheres.

3. The Interim AgreementAs noted above, the Interim Agreement, being the third stage

of implementation of the DOP, provides for the establishment ofan elected Palestinian Council and for the redeployment ofIsraeli forces throughout the West Bank. The arrangementscontained in this agreement are to remain in force throughout thefive year transitional period which began on the date of entryinto force of the Gaza-Jericho Agreement (i.e., on May 4, 1994)and which will be completed by May 4, 1999. These arrange-ments incorporate or supersede all of the provisions contained inthe three earlier agreements described above. Under the InterimAgreement, the arrangements established for the Gaza Strip bythe Gaza-Jericho Agreement were generally left unchanged,except for the modifications dictated by the experience gained inthe implementation of the Gaza-Jericho Agreement. By contrast,the arrangements pertaining to the Jericho Area were replaced bythe new arrangements to be implemented throughout the WestBank. Authority with regard to the civil spheres transferred tothe Palestinians under the preparatory transfer arrangements isassumed by the Council as part of its assumption of powers andresponsibilities under the Interim Agreement.

4. Permanent Status Arrangements Article V of the DOP provided that negotiations on permanent

status issues are to commence not later than the third year of theinterim period. The Interim Agreement concretizes this date as

May 4, 1996 (Article XXXI(5)). The permanent status arrange-ments to be concluded through these negotiations are to beimplemented at the conclusion of the five year transitionalperiod. A list of some of the issues to be addressed in the perma-nent status negotiations is provided in Article V(3) of the DOP("Jerusalem, refugees, settlements, security arrangements,borders, relations and cooperation with other neighbors andother issues of common interest"). The DOP envisioned thepermanent status agreement to be the fourth (and last) stage ofimplementation, bringing about full peace and reconciliationbetween Israelis and Palestinians.

General Structure of the AgreementThe Interim Agreement comprises over 300 pages and

consists of the main body of the agreement and seven annexes,which deal with the following matters: redeployment andsecurity arrangements, elections, civil affairs (transfer of civilauthority), legal matters, economic relations, Israeli-Palestiniancooperation, and release of Palestinian prisoners and detainees.Attached to the agreement are nine maps delineating suchmatters as the areas of redeployment of the Israel DefenseForces, the deployment of Palestinian Police, the securityarrangements, etc.

The agreement was witnessed and countersigned by the headsof states, foreign ministers or representatives of the UnitedStates, the Russian Federation, Egypt, Jordan, Norway and theEuropean Union.

Nature of the Interim Arrangements A. Source of Authority

The nature of the regime established in the West Bank and theGaza Strip for the duration of the transitional period is that of aPalestinian autonomy under the supreme authority of the Israelimilitary government. As detailed below, in line with these funda-mental principles, Israel will continue to be responsible, amongother things, for the external security as well as the external rela-tions of the West Bank and the Gaza Strip. Significantly, lack ofauthority in these two spheres is a well-established indication ofautonomous regimes. That the Israeli military government willcontinue to exist is stated in Article I(5) of the InterimAgreement, which provides:

After the inauguration of the Council, the Civil Administration inthe West Bank will be dissolved, and the Israeli military govern-

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ment shall be withdrawn. The withdrawal of the military govern-ment shall not prevent it from exercising the powers andresponsibilities not transferred to the Council.

It follows that, unlike the Civil Administration, the militarygovernment does not dissolve. Instead, it simply withdrawsphysically from its former location, but continues to exist else-where as the source of authority for the Palestinian Council andthe powers and responsibilities exercised in the West Bank andthe Gaza Strip.

The fact that the military government continues in existence,and retains all necessary authority to exercise powers andresponsibilities not transferred to the Council, is stated explicitlyin the Interim Agreement (Article XVII(4)):

particular power vests, then that power is retained by Israel. It isnoteworthy that the possession of residual powers is, normally,an indicia of being the source of authority.

C. The Status of the West Bank and the Gaza StripThe Interim Agreement states that the "status of [the West

Bank and the Gaza Strip] will be preserved during the interimperiod" (Article XXXI(8)). Moreover, the agreement contains aclear undertaking that "[n]either side shall initiate or take anystep that will change the status of the West Bank and the GazaStrip pending the outcome of the permanent status negotiations"(Ibid., para. 7).

These provisions prohibit both sides from taking any unilat-eral step designed to change the status of the West Bank and the

a. Israel, through its military govern-ment, has the authority over areas thatare not under the territorial jurisdictionof the Council, powers and responsibil-ities not transferred to the Council andIsraelis.b. To this end, the Israeli militarygovernment shall retain the necessarylegislative, judicial and executivepowers and responsibilities, in accor-dance with international law. Thisprovision shall not derogate fromIsrael's applicable legislation overIsraelis in personam.

Since the military government remains

Gaza Strip which, as elaborated above, isa status of Palestinian autonomous areasunder the supreme authority of an Israelimilitary government.

Since the status of the West Bank andthe Gaza Strip is one of the fundamentalelements of the Interim Agreement, oneimplication of this prohibition is that anyattempt made by either party to changethis status (such as by declaring an inde-pendent Palestinian state or by annexingthe areas to Israel) may be considered amaterial breach and a ground for termi-nating the agreement.

the source of authority in the areas, as with the previous agree-ments reached between Israel and the Palestinians, the militarycommanders of the Israel Defense Forces in the West Bank andthe Gaza Strip issued proclamations concerning the imple-mentation of the Interim Agreement, whereby they incorporatedthe provisions of the agreement into the domestic law.

B. Residual PowersThe provisions of the Interim Agreement quoted above also

resolve the issue of where residual powers are vested, i.e., theyare retained by Israel. In addition, Article I(1) of the InterimAgreement states that "Israel shall continue to exercise powersand responsibilities not so transferred [to the Council]". Itfollows that, if the agreement is silent on the question of where a

D. Interim Arrangements do not Prejudice PermanentStatus

The arrangements included in the Interim Agreement are, asthe name of the agreement suggests, interim arrangements only;they are not in any way intended to influence the outcome of thepermanent status negotiations. In other words, in the upcomingpermanent status negotiations, no party may be barred fromraising a claim or argument regarding the permanent statusmerely because that party has agreed in the Interim Agreementthat a different arrangement be implemented during the interimperiod. This principle is stated clearly in the DOP, and is restatedin Article XXXI(6) of the Interim Agreement, which provides:

Nothing in this Agreement shall prejudice or preempt the

In the upcoming perma-nent status negotiations,no party may be barredfrom raising a claim orargument regarding thepermanent status merely

because that party hasagreed in the Interim

Agreement that adifferent arrangementbe implemented during

the interim period.

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outcome of the negotiations on the permanent status to beconducted pursuant to the DOP. Neither Party shall be deemed,by virtue of having entered into this Agreement, to haverenounced or waived any of its existing rights, claims orpositions.

ElectionsA. The Electoral Process

Unlike the Palestinian Authority appointed under the Gaza-Jericho Agreement, the Palestinian Council established pursuantto the Interim Agreement is an elected body. Israel recognizedthe importance of establishing a democratic and accountablesystem of self-government in the West Bank and the Gaza Strip.Accordingly, the provisions of Article III of the DOP, which callfor Òdirect, free and general political electionsÓ in order that thePalestinians of the West Bank and the Gaza Strip may governthemselves Òaccording to democratic principlesÓ, are in Annex IIof the Interim Agreement translated into detailed provisionsensuring a free and democratic process. In addition, goingbeyond the requirements of the provisions of the DOP, Israelagreed to the holding of separate and simultaneous elections forthe Council and for the position of the Chairman (or ÒRaÕeesÓ inArabic) of the Executive Authority of the Council (Annex II,Article III).

Throughout the negotiations on the elections, Israel wasmindful of the fact that the elections are Palestinian elections.Accordingly, Israel was prepared to leave all issues relatingexclusively to the conduct of the electoral process to be decidedby the Palestinian side, expressing its concerns only with regardto such fundamental issues as the maintenance of security duringthe electoral process. A further expression of IsraelÕs willingnessto be seen not to interfere with the electoral process are theprovisions of the agreement calling for a redeployment of Israeliforces from the Palestinian populated areas of the West Bank onthe eve of the elections (see Section VII (c) below).

B. The Right to Vote and Be a CandidateThe Interim Agreement provides that the right to vote will be

universal, regardless of sex, race, religion, opinion, social origin,education or property status. Accordingly, all Palestinians of theWest Bank and the Gaza Strip who are registered in the popula-tion register as residents of these areas and are over the age of 18on the date of the elections are entitled to vote, unless disqual-ified by a Palestinian judicial decision (Annex II, Article II).

Any person registered to vote in the elections, and who meetsthe age criteria as set by the Palestinian Elections Law, may alsostand as a candidate. Candidates for the Council must live in theconstituency for which they wish to be elected. A candidacyshall only be rejected if the candidate professes racist views oracts in an illegal or undemocratic manner (Annex II, Article III).

C. International ObservationAll stages of the election process will be open to international

observation, to ensure that they are free and fair (Annex II,Article V). The observers will include representatives from alarge number of countries, including the United States, Russia,Egypt and Jordan, and international organizations, including theOrganization of African Unity and the Islamic ConferenceOrganization. At the request of Israel and the PLO, the EuropeanUnion agreed to coordinate the election observation. The InterimAgreement provides for the establishment of a trilateral coor-dination forum, comprising the Palestinian ElectionCommission, Israel and the European Union to deal with allissues of security and logistics relating to the observers.

D. Participation of Palestinians of Jerualem in the ElectionsThe DOP provided that Palestinians of Jerusalem who live

there Òwill have the right to participate in the election processaccording to an agreement between the two sidesÓ (Annex I,Article I). In the course of the negotiations on the InterimAgreement, the Palestinian side insisted that this provisionrequired that Jerusalem be treated as identical to the West Bankand the Gaza Strip for the purposes of electoral administration,that Palestinians of Jerusalem be entitled both to vote and to beelected in the elections, and that voting should take place withinJerusalem. Israel argued that participation for the purpose of thisprovision required only that arrangements be made to enablePalestinians of Jerusalem to vote in the elections, and that votingshould take place outside Jerusalem. Eventually, the followingarrangements were agreed:

1. Electoral AdministrationArticle I(4) of Annex II of the Interim Agreement containsthe following general provisions:a. All of the offices of the Central Election Commission

and its subordinate bodies, including the offices of theDistrict Electoral Commission (hereinafter "the DECs")and the District Election Offices (hereinafter "the

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DEOs") shall be situated in constituencies set out in thePalestinian Election Law in areas under the jurisdictionof the Council.

b. All aspects of the electoral administration (such as publi-cation of lists of electors or candidates, and otherinformation concerning the conduct of the elections,appeals, counting votes, and publication of results) shalltake place only in the offices of the relevant DEO.

These provisions have two significant implications withregard to election arrangements regarding Palestinians ofJerusalem:i. All offices of the Central Election Commission must be

situated outside Jerusalem. While for the purposes ofenabling Palestinians of Jerusalem to vote, Jerusalemmay be included within a larger constituency which alsoincludes parts of the West Bank, all the offices of theelectoral administration, including the polling stations,must be situated in the West Bank, that is, outsideJerusalem. This provision is consistent with the generalprovision (Article I(7) of the agreement) requiring that alloffices of the Palestinian Council be located in areasunder its jurisdiction (see discussion in Section V(f)below).

ii. In addition, all aspects of the electoral administrationmust take place outside Jerusalem. Since the DistrictElection Offices must be situated in the West Bank or theGaza Strip and all aspects of electoral administration areto take place only in these offices, it follows that noaspects of the electoral administration may be conductedwithin Jerusalem.

2. CandidatesArticle III(1)(b) of Annex II to the Interim Agreementprovides that every candidate for election for the Council orthe position of the RaÕees must have a valid address in anarea under the jurisdiction of the Council. In the case of acandidate for the Council this address must also be in theconstituency for which he or she is a candidate. Accordingly,a Palestinian who lives only in Jerusalem may neither be acandidate for the position of the RaÕees nor for membershipin the Council. Only Palestinians with a valid address outsideJerusalem, in the West Bank or the Gaza Strip, may be candi-dates for election. For the purpose of this provision, theagreement defines a valid address as Òthat of a residentialproperty which is owned or rented or otherwise legitimately

occupied by the candidateÓ. That the candidate's addressmust be his or her genuine residence is further emphasizedby the agreement's definition of ÒaddressÓ as Òthe specificabode in which a person actually livesÓ and of ÒabodeÓ as aÒmain permanent fixed addressÓ (Annex II, Article II(1)(j)).A Palestinian who lives in the West Bank or the Gaza Strip,however, will not be barred from standing as candidatemerely because he or she has a second address outside theseareas, in Jerusalem or elsewhere (Annex II, Article III(1)(b)).

3. Election CampaigningAny campaign activities which take place in Jerusalem willbe subject to the relevant provisions of Israeli law.Candidates wishing to conduct such activities shall apply forthe necessary Israeli permits from the Israel Police throughthe Central Election Commission. Representatives of thisCommission, together with representatives of the IsraelPolice, will form a special committee to coordinate issuesrelating to election campaigning in Jerusalem (Annex II,Article VI(1)).

4. Polling ArrangementsMost Palestinians of Jerusalem will vote at approximately170 polling stations situated outside Jerusalem in the WestBank. They will be notified by the Palestinian CentralElections Commission of the relevant polling station atwhich they are to cast their vote. At the same time, a number of Palestinians of Jerusalem willvote in the elections through services rendered in five spec-ified post offices in Jerusalem, in accordance with thecapacity of these post offices (Annex II, Article VI(2)). Indiscussions between the two sides it was suggested that thesepostal facilities be made available to enable the elderly andinfirm to participate in the elections. Those Palestinians whowill vote through these Israeli post offices will be notified ofthe relevant post office by means of an Electoral RegistrationCard provided by the Central Election Commission.In contrast to the situation in the West Bank and Gaza Strippolling stations, there will be no polling station commissionsin the Israeli post offices. Any necessary procedures withinsuch post offices will be conducted by the Israeli post officeemployees, who will be responsible for identifying thePalestinian electors and providing them with ballot papersand envelopes. In these post offices, electors shall mark ballot papers at thepost office counter and insert them in the envelopes

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addressed to the relevant District Election Office in the WestBank. Thereafter, such envelopes will be delivered to thisOffice where they will be opened, and the enclosed ballotpapers counted and totaled along with all the other ballotpapers cast in the West Bank.

The Palestinian CouncilA. Structure of the Council

According to the agreement, the Palestinian Council willcomprise 82 elected representatives and the Chairman(ÒRaÕeesÓ) of the Executive Authority of the Council who, asnoted above, is to be elected in separate and simultaneous elec-tions (Article IV). After the conclusion of the InterimAgreement, Israel approved a Palestinian request to add oneadditional seat on the Council, which will be reserved for theSamaritan community of the Nablus district. Once elected, theCouncil will replace the Palestinian Authority appointedpursuant to the Gaza-Jericho Agreement.

The elected Council possesses both executive and legislativepowers (Article III(2)). According to the DOP, these functionswere to be performed by one organ (Article VII(2)). During thecourse of negotiations on the Interim Agreement, however,driven by its desire to see a fully democratic Palestinian society,Israel agreed to permit a separation between the legislative body- the Council itself - and a smaller executive committee of theCouncil ( the ÒExecutive AuthorityÓ)(Article V(1)). Such a divi-sion would ensure the existence of oversight and accountability,two prerequisites for a democratic regime.

While there is no specified number of members which are tocompose the Executive Authority, the Palestinian Authority,which is performing similar functions in the Gaza Strip and theJericho Area pending the inauguration of the Council, consists of24 members. The Interim Agreement stipulates that the membersof the Executive Authority must be drawn primarily from thePalestinian Council. However, the RaÕees of the ExecutiveCommittee, with the CouncilÕs approval, may appoint personswho are not members of the Council, the number of which cancomprise up to 20 percent of the total membership of theExecutive Authority (Article V(4)(c). Israel agreed to such anarrangement, realizing that certain individuals who would bevery suitable as members of the administrative body might notbe able to be elected because they would be present outside theterritories on the day of the elections, or might simply not desireto run as candidates in the elections. The agreement permits the

Council to establish other committees in order to assist incontrolling the activity of the Executive Authority and tosimplify the Council proceedings.

B. Jurisdiction of the CouncilThe jurisdiction of the Palestinian Council in the West Bank

and the Gaza Strip is defined in Article XVII of the InterimAgreement by three cumulative criteria: territorial jurisdiction,personal jurisdiction, and functional jurisdiction.1) Territorial Jurisdiction

The territorial jurisdiction of the Council is confined to thoseparts of the West Bank and the Gaza Strip in which powersand responsibilities have been transferred. As describedbelow (see Section VII(c)), while the transfer of territorialauthority in the Gaza Strip and the Jericho Area wascompleted in May 1994, immediately after the signing of theGaza-Jericho Agreement, the transfer of such authority to thePalestinian Council with regard to the rest of the West Bankis to be effected in a series of stages consistent with thephased redeployment of Israeli forces. It follows that theterritorial jurisdiction of the Council is not static, but willcontinue to expand throughout the process. At the conclusionof the process, the territorial jurisdiction of the Council willcover the territory of the West Bank and the Gaza Strip withthe exception of "permanent status issues", i.e., Israeli settle-ments and military locations (Article XVII(8)). Israel retainsterritorial jurisdiction with regard to all West Bank and GazaStrip lands not placed under Palestinian territorial jurisdic-tion (Article XVII(4)(a)).

2) Functional JurisdictionWith regard to the functional jurisdiction of the Council,Article XVII(2)(b) provides that this extends to all theÒpowers and responsibilities transferred to the Council, asspecified in this Agreement or in any future agreement thatmay be reached between the partiesÓ. Annex III of theInterim Agreement (Civil Affairs) deals with 40 spheres ofcivil authority. As noted above, since Israel has residualpowers, unless Annex III specifically transfers particularpowers and responsibilities to the Palestinian Council, suchpowers and responsibilities are retained by Israel. Indeed,with regard to some spheres, Israel declined to transferauthority, especially in matters pertaining to security (seeSection VI(a) below).

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The functional jurisdiction of the Council generally onlyapplies in areas that are placed under the territorial jurisdic-tion of the Council. Thus, the CouncilÕs functionaljurisdiction does not apply in Israeli settlements or in mili-tary locations. As an exception, however, with regard to afew thousand Palestinians that live in isolated houses in thenon-populated areas of the West Bank who will continueinitially to be under Israeli jurisdiction, the Council will havefunctional jurisdiction pertaining to non-territorial spheres ofauthority. Israel will retain the functional jurisdictionpertaining to territorial spheres of authority in these non-populated areas (see Section VII(b) below).

3) Personal JurisdictionThe personal jurisdiction of the Council covers all persons

Israeli citizens remain under Israeli jurisdiction, save for theabove-noted exception.

C. Legislative Powers of the Council As mentioned above, the Council has legislative as well as

executive powers. According to the Gaza-Jericho Agreement,the legislative powers of the appointed Palestinian Authoritywere subject to an effective Israeli veto. During the InterimAgreement negotiations, it was decided not to constrain theelected Council with such a veto as the Gaza-Jericho arrange-ments have shown this restraint to be impractical for both sides.The Palestinians were burdened by having to submit for priorIsraeli approval every law or regulation. Likewise, the Israeliswere burdened by the monumental task of continuously moni-

present within its territorial jurisdic-tion, except for Israelis, "unlessprovided otherwise in the agreement"(Article XVII(2)(c)). Thus, the juris-diction of Council in each of thespheres transferred is largelyconfined to non-Israelis, situatedoutside Israeli settlements and mili-tary locations. The proviso refers tothe fact that, under the agreement,Israelis conducting ongoing businesswithin the territorial jurisdiction ofthe Council are subject to theCouncil's civil jurisdiction (AnnexIV, Article III(2)(a)). This jurisdic-

toring, translating into Hebrew andreviewing all primary and secondaryPalestinian legislation. Accordingly, theInterim Agreement does not maintain therequirement that all Palestinian legisla-tion be submitted for Israeli approval, butsimply provides that the Council's legis-lative powers may only be exercisedwithin its jurisdiction (Article XVIII).The agreement goes on to provide thatany legislation which exceeds this juris-diction, or which is otherwiseinconsistent with the DOP, the InterimAgreement or any other agreementbetween the two sides, Òshall have no

tion, however, does not cover criminal matters. Thus, anIsraeli who conducts business in an area under the territorialjurisdiction of the Council, must obtain all necessary busi-ness permits from the Palestinian Council and may be sued(e.g., for breach of contract) in a Palestinian court. However,such an Israeli may not be tried in a Palestinian court if he orshe commits a criminal offense, in which case the personaljurisdiction remains with the Israeli authorities.

The reference to "Israelis" is defined in Article XX asincluding Israeli statutory agencies and corporations regis-tered in Israel. No distinction is made between Israelisresident in the West Bank and the Gaza Strip or visitingIsraelis resident outside these territories. Nor is any distinc-tion made between Israeli soldiers and civilians. Rather, all

effect and be void ab initioÓ (Article XVIII(4)(a)). In addition, itshould be noted that Article XVIII(4)(b) places a specific obliga-tion upon the RaÕees, who has a discretionary power to refuse topromulgate legislation approved by the Council, not to prom-ulgate any legislation which fails to satisfy the requirements ofthis Article.

D. Judicial OrgansThe Interim Agreement provides that the Council, within its

jurisdiction, will have an independent judicial system composedof independent Palestinian courts and tribunals (Article IX) (6).The agreement also provides for the establishment of aPalestinian Court of Justice with powers of judicial review. Thiscourt, similar in nature to the Israeli High Court of Justice, may

The personaljurisdiction of theCouncil covers all

persons present withinits territorial

jurisdiction, except forIsraelis, "unless

provided otherwise inthe agreement"

December 1995No. 7

13

review any act or decision of the Chairman or any member ofthe Executive Authority of the Council and decide whether suchact or decision is ultra vires, or otherwise incorrect in law orprocedure (Article VIII).

The establishment of Palestinian courts does not mean that theexisting courts of the Israeli military government will cease tofunction. As noted above, the military government will continuein existence, retaining, inter alia, all judicial powers and respon-sibilities not transferred to the Council (Article XVII(4)). Itfollows that Israeli military courts may continue to function inthe West Bank and the Gaza Strip with jurisdiction over alloffenses that are retained under the authority of the militarygovernment (primarily security offenses).

E. The Conduct of Foreign AffairsArticle IX(5)(a) of the Interim Agreement provides:

In accordance with the DOP, the Council will not have powersand responsibilities in the sphere of foreign relations, whichsphere includes the establishment abroad of embassies, consu-lates, or other types of foreign missions and posts or permittingtheir establishment in the West Bank or the Gaza Strip, theappointment of or admission of diplomatic and consular staff,and the exercise of diplomatic functions.

Since under international law full capacity to conduct foreignrelations is one of the accepted indicia of sovereignty and state-hood, the Council's lack of authority in the sphere of foreignrelations is a clear indication of the fact that it is an autonomousand not an independent entity. However, as in the Gaza-JerichoAgreement, Israel understood that in order for the PalestinianCouncil to function effectively, a mechanism had to be estab-lished to enable some dealings with regard to specific mattersbetween the Palestinian side and foreign states or internationalorganizations.

Accordingly, the Interim Agreement permits the PLO (but notthe Palestinian Council) to conduct negotiations and sign agree-ments with states or international organizations "for the benefitof the Council" in four specific categories (Article IX(5)(b)).These categories are: (i) specified economic agreements; (ii)agreements with donor countries for the purpose of imple-menting arrangements for the provision of assistance to theCouncil; (iii) certain agreements for the implementation ofregional development plans; and finally (iv) cultural, scientificand educational agreements.

In the same vein, where the PLO has entered into an agree-ment under this paragraph, the Interim Agreement permits thePalestinian Council to deal with representatives of the relevantforeign state or the international organization in order to imple-ment this agreement. Furthermore, the Interim Agreementpermits the establishment in the West Bank and the Gaza Stripof non-diplomatic Òrepresentative officesÓ for the purposes ofimplementing such an agreement. These activities by theCouncil are not considered foreign relations. Such a grant oflimited authority to have dealings on the international plane is inaccordance with international practice regarding autonomousregimes.

F. Location of Council OfficesThe Interim Agreement provides that the offices of the

Council, its various committees and of the RaÕees may only beestablished in areas under the territorial jurisdiction of theCouncil in the West Bank or the Gaza Strip (Article I(7)). Thesignificance of this provision is that the Council is not onlyprohibited from establishing offices within Israel, including inJerusalem, but that, even within the West Bank and the GazaStrip these offices may not be located outside those areas inwhich powers and responsibilities have been transferred to theCouncil on a territorial basis.

Transfer of Civil Authority to the Council A. General

The Interim Agreement provides for the transfer of agreedcivil powers and responsibilities from the Israeli CivilAdministration to the Palestinian Council. Specific arrangementsfor the transfer of 40 separate spheres of civil authority are setout in Annex III (Civil Affairs) of the agreement. With respect toeach sphere, this Annex specifies (1) whether powers andresponsibilities are transferred without any restrictions; (2)whether any specific powers and responsibilities, especiallythose with a bearing on security (such as telecommunications oraerial traffic), are retained by Israel; or (3) whether powers andresponsibilities are transferred subject to particular restrictions.The treatment accorded to some of the more important civilspheres is reviewed below.

B. Public LandsThe Interim Agreement provides that in those areas from

which Israeli forces are redeployed, civil powers and responsibil-

No. 7December 1995

14

ities will be transferred to the Palestinian Council concurrentlywith the stages of redeployment. In this context, the authority toadminister all public lands that are included within these areaswill also be transferred (Annex III, Appendix 1, Article 16).Administration of public lands outside these areas will beretained by Israel. This includes all powers and responsibilitiesrelating to territory, such as planning and zoning, quarries andmines, and public works and housing.

C. WaterAnother highly sensitive issue dealt with in Annex III is the

issue of authority over the water resources. Annex III sets outagreed principles and arrangements for the transfer of authorityin this sphere (Appendix 1, Article 40). Among these principles,Israel recognizes Palestinian water rights in the West Bank.However, negotiations on the water rights, including the alloca-tion of water resources and ownership of water relatedinfrastructure, will take place only during the permanent statusdiscussions. During the interim period, Israel undertakes toincrease the amount of water allocated to the Palestinians by28.6 million cu.m. per year. Any additional supplies to eitherside will be based on an increase in available water resources tobe developed through international funding, as well as mutualcooperation within the framework of the tripartite American-Israeli-Palestinian forum, which is to convene following thesigning of the Interim Agreement.

This Article also provides for the establishment of a perma-nent joint water committee that will coordinate management ofwater resources and enforce water policies, protecting the inter-ests of both parties by, inter alia, preventing uncontrolleddrilling and enforcing standards.

D. Religious SitesOne of the most sensitive spheres dealt with in Annex III is

that of religious sites (Appendix 1, Article 32). Under thearrangements set out for this sphere, responsibility over sites ofreligious significance in the West Bank and the Gaza Strip willbe transferred to the Palestinian side in those areas from whichIsraeli forces are redeployed. Outside these areas responsibilitywill be transferred gradually during the "further redeploymentphase", except for religious sites located in Israeli settlementsand military locations. Both sides are required to respect andprotect religious rights of Jews, Christians, Moslems andSamaritans, protect holy sites under their respective jurisdiction,

allow free access to them and permit freedom of worship andpractice at the sites.

With regard to Rachel's Tomb in Bethlehem, Joseph's Tomb inNablus and the Shalom Al Israel Synagogue in Jericho, specialarrangements are set out in the agreement to guarantee security,freedom of access and freedom of worship at these sites (AnnexI, Article V). With regard to the Tomb of the Patriarchs inHebron, the parties agreed that the present situation at the tombwill be maintained and will be reviewed three months after theredeployment (Annex I, Article VII(8)).

Security and RedeploymentA. External Security and Security of Israelis and

SettlementsNotwithstanding the transfer of powers and responsibilities

relating to internal security and public order to the PalestinianCouncil in certain areas, the Interim Agreement provides thatIsrael will continue to have the responsibility for defense againstexternal threats. This responsibility is defined as includingresponsibility for protecting the Egyptian and Jordanian bordersand for defense against external threats from the sea and the air.Israel also retains the responsibility for the overall security ofIsraelis and Israeli settlements. Furthermore, the agreementstates that Israel shall have Òall the powers to take the stepsnecessary to meet this responsibilityÓ (Article XII(1)).

B. Internal Security and Public OrderWith regard to internal security and public order in the West

Bank, the agreement establishes initially three different types ofarrangements:

i. Area AArea ÒAÓ comprises the Jericho Area and the mainPalestinian cities of the West Bank, namely Jenin, Nablus,Tulkarem, Kalkilya, Ramallah, Bethlehem and Hebron(except for the Old City of Hebron, the Jewish Quarter, andeverything that is linked from there to Kiryat Arba and theTomb of the Patriarchs). In Area "A" , the PalestinianCouncil will have full responsibility for internal security andpublic order, as well as full responsibility for civil affairs.

ii. Area BArea ÒBÓ comprises all of the other Palestinian populatedareas in the West Bank (around 450 towns, villages, refugeecamps and hamlets). In these areas, the Council will be

December 1995No. 7

15

granted full civil authority, as in Area ÒAÓ. The Council willalso be charged with maintaining public order ofPalestinians, while Israel will have the overriding securityauthority for the purpose of protecting Israelis andconfronting the threat of terrorism. The use of the wordÒoverridingÓ indicates that this Israeli responsibility shalltake precedence over the Palestinian responsibility for publicorder.Twenty five Palestinian police stations will be established inspecified towns and villages in Area "B" to enable thePalestinian Police to exercise its responsibility for publicorder. The agreement contains provisions requiring that themovement of Palestinian Police be coordinated with andconfirmed by Israel.

iii. Area CArea ÒCÓ comprises the unpopulated areas of the West Bank,and includes areas of strategic importance to Israel and theIsraeli settlements. In Area ÒCÓ, Israel will retain full respon-sibility for security and public order. The Palestinian Councilwill assume powers and responsibilities for civil affairsspheres not related to territory, such as economics, healthand education, on a personal basis with regard to a few thou-sand Palestinians residing in isolated houses in Area ÒCÓ.Israel will retain authority over all civil affairs spheresrelated to territory.

C. Redeployment and Further Redeployments It will be recalled that, under the Gaza-Jericho Agreement, the

withdrawal of Israeli military forces from all areas of the GazaStrip other than settlements and military locations took place asa one-time operation. In contrast to the Gaza-Jericho approach,the security arrangements for the West Bank included in theInterim Agreement provide for a gradual redeployment of Israelimilitary forces to take place in a number of stages:

i. First phase of redeploymentThe first phase of redeployment, designed to facilitate theholding of elections, involves the redeployment of Israeliforces from all of the populated areas of the West Bank.Special arrangements also provide for a partial redeploymentin the city of Hebron. At the end of this first phase of rede-ployment, there will be no permanent Israeli militarypresence in any Palestinian population center. The agreementprovides that the first phase of redeployment itself will becarried out in stages on a district-by-district basis.

ii. Further RedeploymentsIn addition to the initial redeployment of Israeli militaryforces described above, the Interim Agreement provides thatfurther stages of redeployment are to take place at six monthintervals to be completed 18 months after the inauguration ofthe Council (Article XI). In the course of these further rede-ployments, additional parts of Area "C" will be transferred tothe territorial jurisdiction of the Council, becoming eitherArea "A" or Area "B", while parts of Area "B" may becomeArea "A" (Article XI(2)(b)). By the completion of the threestages of further redeployment in July 1997, the territorialjurisdiction of the Council will cover West Bank territory,except for Israeli settlements and military locations.Significantly, the military locations are referred to in ArticleXVII(1) as "specified military locations" and not "agreedmilitary locations" as suggested by the Palestinian side. Theuse of the word "specified", rather than "agreed", indicatesthat the number, extent and location of these areas is not asubject for negotiations between the parties, but rather willbe decided unilaterally by Israel.

D. Palestinian Police and Security PolicyThe agreement, in Article XIV and Annex I, provides for the

establishment of a strong Palestinian Police that will constitutethe only Palestinian security force in the West Bank and theGaza Strip. This force will incorporate the Palestinian Policealready deployed in the Gaza Strip and the Jericho Area, andwill number up to 30,000 policemen, up to 12,000 of whom willbe deployed in the West Bank and up to 18,000 in the GazaStrip. The Security Annex specifies the deployment of thePalestinian Police, its weapons and equipment and its rules ofconduct.

The DOP envisioned that the Palestinian elections would takeplace nine months after the entry into force of the DOP, i.e., inJuly 1994. This required that the Interim Agreement beconcluded prior to this date. In fact, the Interim Agreement wassigned 14 months later. This delay was in large part due to prob-lems encountered in the implementation by the PalestinianAuthority of the security provisions of the Gaza-JerichoAgreement. These problems were alleviated to some extent bythe beginning of implementation of a declaration made by thePalestinian Authority on March 9, 1995, in which, for the firsttime, it clearly stated its security policy. This policy, which shallcontinue to bind the Palestinian Council throughout areas under

No. 7December 1995

16

its jurisdiction, is restated in Annex I , Article II(1) of theInterim Agreement:

a) The Palestinian Police is the only Palestinian securityauthority.

b) The Palestinian Police will act systematically against allexpressions of violence and terror.

c) The Council will issue permits in order to legalize thepossession and carrying of arms by civilians. Any illegalarms will be confiscated by the Palestinian Police.

d) The Palestinian Police will arrest and prosecute individualssuspected of perpetrating acts of violence and terror.

E. Coordination in Security Matters

Economic Relations and CooperationThe Economic Annex attached as Annex IV to the Gaza-

Jericho Agreement has been incorporated into the InterimAgreement as Annex V. Its articles and appendices, cover avariety of economic, monetary and financial issues. Theseinclude the application in Israel, the West Bank and the GazaStrip of uniform customs and import policies so as to effectivelyconvert Israel, the West Bank and the Gaza Strip into a singleeconomic union.

In addition, an entire annex of the Agreement, Annex VI,deals with cooperation between Israel and the PalestinianCouncil. Under this Annex the parties undertake to cooperate ona number of programs involving their respective officials, insti-tutions and the private sector in various fields, such as

The complex allocation of security andpublic order responsibilities throughoutthe various areas of the West Bank, asdescribed above, necessitates close coor-dination between the two sides on allissues relating to security. For thispurpose, the agreement establishes aJoint Coordination and CooperationCommittee for Mutual SecurityPurposes. This committee has two jointregional subcommittees, one for the WestBank and the other for the Gaza Strip,and District Coordination Officesthroughout these areas. The agreementalso includes arrangements for Joint

economics, science, culture and society.A Standing Cooperation Committee is

established under this Annex to considerand decide the methods and modalitiesfor the implementation of the variousareas of cooperation.

Human Rights and the Rule ofLaw

Under Article XIX of the InterimAgreement, both sides undertake to exer-cise their powers and responsibilitieswith due regard to the principles ofhuman rights and the rule of law. In addi-tion, the Israeli security forces and the

Patrols to ensure free and safe movement along key roads, JointMobile Units to provide rapid response in the event of incidentsand emergency situations, and Joint Liaison Bureaus to coor-dinate activity at crossing points and terminals.

Legal Relations Between Israel and thePalestinian Council

Annex IV of the agreement sets out arrangements governingthe legal relations between Israel and the Palestinian Council.These provisions define the criminal and civil jurisdiction of thePalestinian courts and include detailed arrangements for legalassistance in criminal and civil matters, including cooperationwith regard to police investigations.

Palestinian Police are required to carry out their functions andresponsibilities while adhering to these international norms,guided by the obligation to protect the public, respect humandignity and avoid harassment.

Settlement of Differences And DisputesAs in previous Israel-PLO agreements, the Interim Agreement

provides that negotiations through the Joint Liaison Committeewill be the primary dispute settlement mechanism between theparties as to the application and interpretation of the InterimAgreement (Article XXI). Where the Joint Liaison Committee isunsuccessful in resolving the dispute, there is no mandatory nextstep, but the agreement provides that such disputes "may beresolved by a mechanism of conciliation to be agreed between

The agreement isambitious in that itattempts to lay thegroundwork for anall-encompassing

resolution of the bitter,long-standing

Israeli-Palestiniandispute.

December 1995No. 7

17

the parties". The use of the words "may" and "to be agreed" indi-cate that this is a voluntary proceeding in which both partiesmust agree on the need for and manner of conciliation. Whereconciliation fails, the parties "may agree to submit to arbitration"the outstanding dispute. Again, the wording indicates that this isa voluntary procedure.

Revocation of the Palestinian CovenantThe Interim Agreement contains a Palestinian undertaking

that, within two months from the date of the inauguration of thePalestinian Council, the necessary changes will be made to thePalestinian Covenant with regard to those articles which denyIsrael's right to exist or are otherwise inconsistent with thecommitments included in Chairman Arafat's letter to PrimeMinister Rabin of September 9, 1993 (Article XXXI(9). Thismarks the first agreement in which a definite date has been spec-ified for the amendment of the Covenant. In the original letter ofSeptember 9, 1993, Yasser Arafat only undertook that theCovenant was to be amended, but no particular date was set. Inthe Gaza-Jericho Agreement, it was provided that the Covenantwould be amended in the next meeting of the PalestinianNational Council, without setting a date for the meeting. Theomission of a specific date for the revocation in the prior agree-ments was not accidental, but was meant to accommodateYasser Arafat's continued contention that he would find it diffi-cult to meet this obligation prior to the date of the Palestinianelections. As the Interim Agreement provides for the holding ofthese elections, the agreement provides a date for the revocationof the Covenant contingent on the inauguration of the Council.

Additionally, unlike previous agreements which simplyrequested that the Palestinian side present the necessary changesto the Palestinian Covenant to the Palestinian National Council,the Interim Agreement goes a step further and stipulates that thenecessary changes be implemented. The obligatory language isstronger and mandates compliance.

Release of PrisonersIn an effort to foster a positive atmosphere in the Palestinian

public to accompany the implementation of the InterimAgreement, the agreement contains arrangements for the releaseof Palestinian detainees and prisoners who are residents of theWest Bank and the Gaza Strip (Article XVI (1)). A similarprovision was included in the Gaza-Jericho Agreement, pursuantto which 5,000 prisoners and detainees were released.

Detainees and prisoners from categories listed in Annex VII of

the Interim Agreement are to be released in three stages. Thefirst stage of the release took place on the signing of the agree-ment. To date, close to 900 prisoners and detainees have beenreleased pursuant to the Interim Agreement. The second stage isto take place prior to the date of the elections. A third stage ofrelease of detainees and prisoners will take place during thepermanent status negotiations. At that time, the parties mayexplore further categories for release.

Coordination Mechanisms As noted above, a number of joint committees are established

in the agreement to coordinate various fields of activity - theJoint Security Committee, the Civil Affairs Committee, theLegal Committee, the Joint Economic Committee and theStanding Cooperation Committee. At the highest level, the JointIsraeli-Palestinian Liaison Committee established pursuant to theDOP will continue to be responsible for ensuring the smoothimplementation of the agreement. At the same time, in the lightof the parties' experience in implementing the previous agree-ments, the parties also agreed to establish a subcommittee of thejoint Liaison Committee - the Monitoring and SteeringCommittee - to be responsible on an ongoing basis for moni-toring the implementation of the agreement and steering thevarious joint committees (Article XXVI).

ConclusionThe Interim Agreement is one of the most complicated agree-

ments that Israel has ever concluded. It may well be one of the mostcomplex autonomy arrangements ever to have been negotiated.

The agreement is ambitious in that it attempts to lay thegroundwork for an all-encompassing resolution of the bitter,long-standing Israeli-Palestinian dispute. At the same time, it isfragile, due to the multitude of explosive issues that requireconstant attention, such as the conflicting national and religiousclaims and the ever present security threats.

While, the implementation of previous stages of the DOP wasaccompanied at the outset by numerous misunderstandings,violations and incriminations, it appears that, with the expe-rience gained, the parties are increasingly successful in finding acommon language in which to discuss and resolve their differ-ences. It is to be hoped that this trend will continue as the partiesface negotiations over even more sensitive issues, and that it willassist them in realizing their desire, as expressed in the preambleto the Interim Agreement, "to achieve a just, lasting and compre-hensive peace settlement and historic reconciliation".

No. 7December 1995

18

Customs Aspects of the InterimAgreement with the Palestinians

David Shimoni

Mr. David Shimoni is the Deputy Director of theDepartment of Customs and V.A.T. in Israel

There are two fundamental principlesunderlying the Paris Agreement, signed afterthe Oslo Agreement, which provides theframework for the import and export policy tothe Palestinian Autonomy and the tradebetween Israel and the Autonomy. First, theexistence of free trade between Israel and thePalestinian Authority, such as that existingbetween California and Arizona, or between TelAviv and Haifa. This principle was establishedfollowing economic negotiations between thetwo sides, and is based on each partyÕs ownmarket interests. The second principle holdsthat the external arrangements must beidentical.

The Paris Agreement provides for free tradebetween Israel and the Palestinian Autonomy;the establishment of uniform customs structuresfor all foreign trade to Israel and the Autonomy,except in relation to a class of exceptionalgoods, in respect of which different rules havebeen provided.

The economic model pertains to three issues:first, the rates of tax; second, the legality ofimports, such as standards, permitted andforbidden countries of origin, etc.; and third,work procedures.

1. The rates of customs duty and purchasetax valid in Israel will be the minimumrates for imports to the Autonomy. Savefor some exceptions, all imports to theAutonomy will enter in accordance withthe customs duty and purchase taxapplicable in Israel although thePalestinian authorities will be entitled toset higher rates. To date, the Autonomyhas not done so, for the simple economicreason that the existence of free trade andfree movement of goods between Israeland the Autonomy makes it financiallyunworthwhile to set higher rates thanthose applicable in Israel, as this wouldlead to the importation of goods through

Israel and consequential losses to thePalestinian Autonomy.

2. With regard to VAT, the Agreementprovides that there must be a uniform ratebetween local products and imports. Itmay be at a rate of 17% as in Israel, or alower rate of 15 of 16%. To date, thePalestinian Autonomy has retained the rateof 17%.

3. With regard to the legality of imports, ithas been agreed that all the import laws ineffect in Israel, i.e., standards, permittedand forbidden countries of origin, the issueof responsibility for imports and theprovision of services, will be identical.

The Agreement further provides that allclassification and customs tariffs shall beidentical to Israeli tariffs, which in turn areidentical to the international customs tariff asdetermined by the World CustomsOrganization. With regard to the assessment ofgoods, the Agreement provides that the sameshall be performed in accordance with thecurrent laws of Israel, until the present systemis changed in January 1997, in compliance withthe agreement between Israel and GATT.

The Agreement provides that all goodsimported through Israeli ports will be processedby Israeli customs officials only, without theparticipation of Palestinian personnel. Wheregoods pass through the Allenby Bridge over theJordan River, or the Rafiah Border Crossing,somewhat different rules apply, and there isdefined participation of Palestinian customsofficials, in collaboration with Israeli customsofficials.

Slightly different rules apply to the movementof passengers through border crossing points. Insuch cases there is greater contact between thecustoms official and the passenger andtherefore the issues are more sensitive.

Accordingly, in the Rafiah Crossing andAllenby Bridge respectively two sets ofterminals have been established - one forresidents of the Autonomy and the other forIsraelis and tourists to Israel. The latterterminal, like Ben Gurion Airport, is operatedby Israelis only. In the terminal whichprocesses Palestinians, the work is performedby Palestinian customs officials, incollaboration with Israeli customs officials,who may at any time request to examine goodsor a passenger, together with a Palestinianofficial. The aim is to reach joint decisions;disputes are transferred for decision to a specialjoint committee.

As to the categories of exceptional goods, in thefirst class - the Palestinians are entitled todetermine customs rates, issue import/exportregulations, and even import goods fromcountries where imports to Israel are forbidden,such as the Arab states. Because of the highlevel of freedom given to the Autonomy interms of movement of goods, the Agreementprovides quotas in respect of this class ofgoods, based on Òthe economic needs of theregionÓ. Concerning vehicles, the PalestinianAuthority will be completely free to determinethe rate of tax and no quotas will be operated.In accordance with the Agreement, thePalestinian Authority is entitled to issue importlicences which accord with the import policyapplicable in Israel.

Finally, special provisions have been made forwaivers for returning Palestinian residents, andthe tax liability of donors. The principleunderlying the Paris Agreement is that allrevenues from customs, purchase tax and VATaccruing from any merchandise imported byeither Israelis or Palestinians, and whose finaldestination is the Autonomy, shall betransferred to the Palestinian Authority.

December 1995No. 7

19

Shevah Weiss

oland is not the only placewhere the issue of the restitu-tion of property to its Jewishowners is relevant. But thefact that more than 3 million

Jews lived in Poland prior to theHolocaust, and most of them weredestroyed there, has meant that mostJewish property and assets are located inthat country. At the same time, it must beremembered that there is also Jewishproperty in Romania, Hungary,Czechoslovakia, Slovakia, Lithuania,Latvia, Estonia, Ukraine and in everyother place where the Germans and theircollaborators sewed death and destruc-tion and murdered Jews.

Remaining property may be cate-gorized as follows: first, private property,houses, plants, shops, offices, etc., gener-ally with no identifiable heirs. Thequestion which arises is why the coun-tries which witnessed these murdersshould take over the victimsÕ property. Ifone cannot ask all of them: Òyoumurdered and also inherit?Ó, I cancertainly say to all of them Òyou inher-

ited the property of those who weremurderedÓ, and to some of them Òyoualso murderedÓ.

Regarding the behaviour of Lithuania,Latvia and Estonia, large segments oftheir population were active partners inthe murder itself. In Poland and otherplaces there were collaborators but onecannot say that all the people murderedJews. When the Germans arrived theyfound local collaborators and togetherthey committed the atrocities. The anti-Semitism in Hungary gave rise to militiaswhich slaughtered the Jews, and savedthe Germans the work of killing. InPoland close to three million Poles werealso murdered.

We have an obligation to locate the

The Restitution of JewishProperty in Eastern Europe

Jewish property which was left after thewar. In my view this property largelybelongs to the Jewish people. It is neces-sary to negotiate with each countryseparately, and restore the property toJewish ownership, on the basis of theeconomic capacity of each of the coun-tries, with each country enacting thenecessary internal legislation to enablethe return of the property. This requiresspecific and realistic handling, supportedby our full moral weight. It is impossibleto act in a completely non-rational waytowards all the countries, some of whichare burdened by oppressive economicproblems. Bearing in mind that we areconsidering the genocide of almost anentire people, it is possible to spreadfuture agreements over one or twogenerations.

Secondly, private property was leftwhere heirs are identifiable. There aremany cases in which survivors of the warleft behind property when they moved toIsrael in the years 1946-1947, or toUnited States, Canada, Australia andother places. This was and remains theirproperty; it must be located and the rele-vant countries in eastern Europe mustensure that suitable internal laws create alegal framework within which all theJewish property can be restored to itsowners, in a just and effective manner.

Third, there is communal property. I

P

Professor Shevah Weiss, M.K. is the Speaker ofthe Israeli Knesset. He was first elected to theKnesset as a Labour Party M.K. in 1981. Prof.Weiss taught Political Science in Haifa andTel-Aviv Universities.

No. 7December 1995

20

have dealt with this in recent years inPoland and other places. When I arriveon Parliamentary business to any of thecountries of eastern Europe, I regard myservice to the Jewish cause as having thesame importance as my parliamentary,political or state service. I willinglyengage in these matters which are outsidethe defined scope of my office becauseof my feelings of moral and personalobligation. In this category there is agreat deal of property, including syna-gogues, libraries, land and cemeteries. Insome of these countries Jewish commu-nities have also remained. In part, thesecommunities are also successors to theproperty. In Hungary a relatively largecommunity remains; in contrast, the posi-tion in Poland is surreal. In Poland therewere thousands of Jewish communities;indeed, at one time, this was the largestcommunity in the world. Today, Polandhas only a small Jewish community ofabout 10,000 people. The younger gener-ation is growing smaller, partly becauseof assimilation, partly through emigra-tion to Israel. However large quantitiesof property exists in Poland which can belocated, including cemeteries which havebeen destroyed but where the landremains.

The central idea of the government ofPoland is to begin locating this propertyand slowly appropriate it to localcommunities. This seems to me to beabsurd. I have discussed this matter withthe Chairman of the Polish Parliament,Dr. Juzef Oleksi, who has since becomethe Prime Minister of Poland. I alsoraised the issue in my meetings with theoutgoing President of Poland, LechWalesa, in my last conversation with himin August in his home, and with TadeuszMazowiecki, former Prime Minister of

Poles is close in size to what previouslyexisted in Poland. Accordingly, I believethat we have just and moral grounds fordemanding that the Jewish organizationswhich deal with the issue of the restora-tion of Jewish property to its owners, andthe Government of Israel, directly,should be central partners in deciding thefate of this property.

One can already say, expressly, whatshould be done with the property, after itis identified: the establishment ofmuseums, cultural centers, rehabilitationof all the cemeteries, the erection ofmemorials, research into the history ofthe communities, and the establishmentof old-age homes in Jewish communitiesthroughout the world for needy ex-Poles.

In Hungary there have been develop-ments in terms of legislation, registrationand return of property. In Romania therewere great difficulties. The debate in theKnesset had appreciable influence onRomania in this connection. In Polandthere has been some movement recentlyin respect of private property where thereare identifiable heirs. Legal arrangementshave been made and some of the heirshave had their property restored to them,although in many cases questions ariserelating to tenants protected by statutewho pay only a fraction of the true rentvalue. Some of the property has beennationalized and only recently laws havebeen enacted to denationalize them. Withregard to communal property, PrimeMinister Oleksi has recently promisedme to expedite legislation in the Sejm.For their part, the Poles raise a number ofarguments, including for example thatnot all the communal property wasJewish. This is an absurd and ratherunfair argument, as the communal prop-erty belonging to the Jewish

Poland; Professor Geremek, Chairman ofthe Foreign Relations Committee of theSejm (Polish Parliament); AdamMichnik, editor, journalist and authorwith great influence in Poland; and alsowith Aleksander Kwasniewski, who wasrecently elected as the new President ofPoland. Some of these are personalfriends and I have attempted to influencethem on a personal level and induce themand others to work towards the comple-tion of suitable legislation for therestitution of property.

I have indicated to these persons that itis improper that this extensive property

We have an obligation tolocate the Jewish

property which was leftafter the war. In myview this property

largely belongs to theJewish people.

be allocated only to those small Jewishcommunities left in Poland. Of coursethese communities must be helped asmuch as possible. However, theremaining property which belonged tothe Jews is vast. It must be recalled thatthere are numerous large communities ofex-Poles throughout the world. In Israelitself there are hundreds of communitiesof ex-Poles which continue to focus onthe memories of their youth and on thememory of the destruction of their home-land. Generally, one can say that thenumber of Jewish communities of ex-

December 1995No. 7

21

Books Just ReceivedTel Aviv University Studies in Law, Vol.12, 1994, ed: Amos Shapira. Papers onHuman Rights and their Impact on Mattersof Private Law. The Cegla Institute,Buchmann Faculty of Law, Tel AvivUniversity.

communities comprised over 90 percentof communal property.

In my conversations with the leadersof Poland on this issue, some, includingformer President Walesa and PrimeMinister Oleksi, claimed that they hadbeen offended by the fact that the Jewshad exercised extensive influence on theAmerican Congress so that the Congresswould cause US Secretary of StateWarren Christopher to issue an order tothe effect that countries which do notrespect human rights, including the rightsof destroyed communities, would find itvery difficult to obtain American state,economic and other aid. The Poles alsoencountered similar attitudes in theEuropean Council and in the EuropeanParliament, making it difficult for themto join these bodies. The Polish claims inthis regard are tinged by charges ofJewish conspiracy, as if there is a worldJewish conspiracy operating againstthem.

In my last conversation with formerPresident Walesa, last summer in Poland,I stated expressly that this is not amarginal issue for us but rather it iscentral to our relations, and that it isnatural that a people which has beendestroyed on Polish land would notwaive its elementary rights. Had Polandbehaved more fairly in this matter, therewould have been no need to activatevarious international institutions to inter-vene with them.

During the conversation I also made itclear that the Poles in the United Stateshave also exerted and continue to exertpressure on the American Congress so asto cause it to exercise its influence withthe Soviet Union, during the communistregime, in connection with the latterÕsrelations with Poland. I emphasized that

Accordingly, the winner, AleksanderKwasniewski, seems to me from aJewish point of view to be the rightvictor.

The Prime Minister of Poland JozefOleksi, who is a very important leader ofthe Socialist post-Communist party,promised me in my conversations withhim that he will bear in mind the mattersthat I raised with him when he comes todeal with this issue. At the same time heasked me, as did Lech Walesa, not tobring heavy pressure to bear on him andnot to intervene through external forcessuch as the United States, as Polandwished to settle the matter by itself. Hewas not more specific than this.

It is my intention to encourage the newForeign Minister Ehud Barak to becomeinvolved and deal with this matter, whichis of great importance to the Governmentof Israel, to the State of Israel, and to thecentral Jewish organizations. For mypart, I shall continue to place greatimportance on the issue of the restorationof Jewish property in eastern Europe, toits owners and to their heirs, to theJewish people as a whole and to itsauthorized representatives, and toadvance this cause as long as I amSpeaker of the Knesset, with the moralauthority conferred on me to speak in thename of, and represent, all the parties inthe Knesset.

if these external interventions are not totheir liking, it would be best for us tospeak directly, bilaterally. During mythree day visit in Poland, last August, Imet the majority of the countryÕs leaders.I believe that I made an impression onthem, particularly as I directly, fairly andopenly expressed my sharp criticism ofthem. In appearances before the centraltelevision networks in Poland, Iexplained the issue of Jewish property tothe Polish people, clearly and in thePolish language I remember from myyouth.

The majority of the current leadershipof Poland, including the government

I shall continue to placegreat importance on theissue of the restorationof Jewish property ineastern Europe, to itsowners and to their

heirs.

elite, is today pro-Israel and pro-Jewish.In recent years hundreds of books aboutthe Holocaust have been published inPoland, some of them are soul-searchingin nature, some were written by thosePolish forces which joined the Jews inresistance to the Nazis. This is a countryin which millions of people, includingJews, were murdered; and in which theGermans chose to establish their deathcamps. Further, one cannot ignore thewaves of anti-Semitism still to be seen intodayÕs Poland. In the last elections inPoland, the anti-Semitic forces joinedWalesa leaving a stain on his reputation.

No. 7December 1995

22

Morris B. Abram

he Middle East Peace Processhas generated much goodwillin the international commu-nity towards Israel. Thegenuine grief displayed byheads of state after the assas-

sination of Yitzhak Rabin is testament tothe atmosphere of respect which nowprevails. One hopes that in the context ofthis new found spirit, progress can bemade on certain matters concerningIsraelÕs place in the internationalcommunity.

An issue ripe for settlement is thestatus of IsraelÕs national protectivesymbol, the Magen David Adom (RedShield of David). Although the MDA haslong been de facto recognized in Arab-Israeli conflicts as a protective symbol, ithas never been de jure recognized assuch under the Geneva Conventions of1949 and Additional Protocols (theGeneva Conventions).

An unfortunate situation thereforeexists: IsraelÕs MDA Society - estab-lished in 1930 and formally recognizedby the Knesset in 1950 as operatingunder the Geneva Conventions - cannotjoin the International Red Cross and RedCrescent Movement. This is becauseArticle 4 of the Statutes of the Movement

Magen David Adomand the Red Cross

T

red cross is a neutral symbol and thatthere is no need to amend Article 38 forthe sake of unhappy states parties to theGeneva Conventions. Proponents of thisargument point to the fact that the redcross was formed by reversing the SwissFederal colours, and that some non-Christian countries use the red cross.

While this argument may have beenpersuasive before 1929, that is no longerthe case. Why? First, in 1929 the GenevaConventions were amended so that notonly the red cross, but also the red cres-cent and red lion were recognized asprotective symbols. This was done inresponse to pressure from Muslim stateslike Turkey which, since 1876, had usedthe red crescent as its protective symbol,arguing that the religious connotations ofthe red cross were unacceptable to aMuslim country. Although the inter-national community had de factorecognized the red crescent (and red lionand sun in the case of Persia) before1929, the de jure recognition granted thatyear amounted to an open admission thatthe red cross had religious connotationsfor some states.

Second, in 1986 the entire Movement,including its component parts (with theexception of the International Committeeof the Red Cross) incorporated the phraseÒred cross and red crescentÓ into its title.This seemed to acknowledge that tworeligions are embraced by theMovement: Islam and Christianity.Indeed in 1981, the then President of theInternational Committee of the RedCross (ICRC), Alexander Hay, notedthat:

Òthe co-existence of the two emblemsof the red cross and the red crescentmay give the false and unfortunateimpression that our movement has twopoles, a Christian and an Islamic one,

Ambassador Morris B. Abram is the Chairman ofUN Watch. He is the former PermanentRepresentative of the US to the United Nations inEurope.

requires that a national society must useone of the distinctive emblems recog-nized by the Geneva Conventions.According to Article 38 of the FirstGeneva Convention of 1949, these arethe red cross, the red crescent and redlion and sun on a white background.Although the MDA Society can attendMovement events - like this DecemberÕsInternational Conference of the RedCross and Red Crescent in Geneva - itmust do so as an observer and not as afully fledged participant.

The exclusion of the MDA Societyfrom the Movement is especially regret-table considering the MovementÕsmission. The Movement stands as atowering symbol of civilization in aconflict-ridden world, its fundamentalprinciples exhorting it to uphold stan-dards of humanity, impartiality,neutrality, independence and univer-sality. Despite IsraelÕs ratifying theGeneva Conventions in 1949, however,the Movement has failed to recognizeIsraelÕs protective symbol. TheMovement now has the opportunity tomake a positive contribution to the PeaceProcess by rectifying that situation.

The Red Cross: Does it HaveReligious Significance?

The most contentious issue in theMDA debate is the significance of thered cross. It has long been argued that the

December 1995No. 7

23

The religiousconnotations attributed

by some to the RedCross and Red Crescent

remains a problem: itweakens the protective

value of the emblem andit may appear to favour

two religiouscommunities.

and that other religious or lay modes ofthinking are ruled out. Fortunately,many countries do not attach religioussignificance to the Red Cross.Nevertheless, the religious connota-tions attributed by some to the RedCross and Red Crescent remains aproblem: it weakens the protectivevalue of the emblem and it may appearto favour two religious communitiesÓ.

Has Israel Attempted to HaveArticle 38 Amended?

Israel has only made one attempt tohave Article 38 amended. During the1949 diplomatic conference on theGeneva Conventions, an Israeli-sponsored amendment to Article 38 wasdefeated by a vote of 22 to 21, with 7abstentions. The lack of amendmentattempts is often pointed to as a reasonfor the current status quo. But there hasonly been one other full diplomaticconference on the Geneva HumanitarianLaw Instruments since 1949 - that tookplace between 1974 and 1977. Althoughthe Israeli delegation originally putforward an amendment, it withdrew itwhen it became clear that it would bedefeated at the conference plenary.

It is clear that Article 38 is the mostdifficult hurdle that must be overcome inthe resolution of the MDA issue. A fulldiplomatic conference of states parties ofthe Geneva Conventions is required toamend it if settlement of the MDA ques-tion is to take place.

The Statutes of the MovementIn 1986, a new Article 4 was inserted

in the Statutes of the Movement. Article4 incorporates the provisions of a resolu-tion adopted at the InternationalConference of 1948 and lists 10 char-acteristics that a national society mustpossess in order to be officially recog-

Ò...we must realize that it must seemdiscriminatory to some and contrary toour principles that the MDA is notrecognized. Indeed, that a Society in amember state of the internationalcommunity which has signed and rati-fied the Geneva Conventions of 1949and which has not been spared byconflict, that Society, as I was saying,is not a member of our Movementbecause at least part of its people feelthat they cannot identify with theemblems we like to consider and actu-ally call universalÓ.

The disbandment of the WorkingGroup was addressed to some extent bythe creation of a Consultative Committeein Birmingham in 1993. This Committee,which is mandated to report to theCouncil of Delegates before theInternational Conference this December,is to make recommendations on anumber of issues, including the emblemproblem.

ConclusionIn the spirit of goodwill which now

prevails in the light of the Middle EastPeace Process, the time has come toaddress the MDA issue. As a preliminarymeasure, a working group should beestablished to make recommendations onthis issue. Theoretically, the ConsultativeCommittee set up in 1993 could bereconstituted by this yearÕs InternationalConference as such a group.

Here are three of numerous possiblesolutions that a working group mightconsider:

1. Design a neutral symbol free of relig-ious connotations that states whichare uncomfortable with the red cross,red crescent and red lion and sun feelfree to use. This solution is open toattack on two grounds: it diminishes

nized. Included in this list of character-istics are: ÒUse of the name and emblemof the Red Cross or Red Crescent inconformity with the GenevaConventions.Ó

In effect Article 4 has further institu-tionalized the MDA problem byproviding a second hurdle that must beovercome if the MDA Society is to jointhe Movement. The Statutes of theMovement require a two-thirds vote forany change to take place. Technically,the International Conference to be heldthis December could amend the Statutes

but there has been no official preparationfor this. The next conference will nottake place until 1999.

Working GroupAt the conclusion of the 1977

International Red Cross Conference inBucharest, a Working Group was estab-lished to examine the emblem issue. Atthe International Conference held inManila in 1981, the Working Group wasdisbanded, much to ICRC PresidentHayÕs dismay. Commenting on the MDAsituation, he said:

No. 7December 1995

24

the distinctiveness of the recognizedemblems and it would require theMDA Society to use a new symbol asits main emblem. This solution isunlikely to be acceptable to Israel orthe MDA Society. Other nationalsocieties and governments have alsoreacted negatively to this proposal inthe past.

2. Return to the pre-1929 situation sothat only the red cross is recognizedas a protective symbol under theGeneva Conventions. This solution ispremised on the idea that the redcross is a neutral symbol. While itavoids the problem of proliferation, it

allowing IsraelÕs national society tobe recognized by the Movement. Thiswas the course which ICRC PresidentHay favoured in 1981.

Clearly there is no perfect to solutionto the MDA problem. But despite thedifficulties involved there is a moral dutyon the Movement to address the issue.Indeed, in so doing it will make a posi-tive contribution to the Peace Process. Inthe meantime, the Movement is fallingshort of the lofty standards to which it isdedicated and has for the most partsuccessfully upheld.

would be difficult to turn back theclock and argue that the red cross hasno religious meaning. This solution isunlikely to be acceptable to Israel, theMDA Society and those states whichuse the red crescent (the red lion andsun is not in use).

3. Have the Geneva Conventionsamended so that the MDA is recog-nized. Although this solution is opento attack on the basis of diminishingthe distinctiveness of the currentemblems, it is clearly the preferredsolution for the MDA Society andIsrael. It would give the MDA de jurerecognition in international law,

The Honorable Abraham Lincoln Marovitz, of Chicago, Illinois,USA, recently celebrated his ninetieth birthday. He is one of thefounding members of the Association and his jubilee affords welcomeopportunity to join his many friends and admirers in congratulating andextolling him.

Marovitz was born to orthodox parents whose great American patri-otism is evident from the fact that they named their son after the greatAmerican President. Throughout his life he regarded this fact as somekind of legacy bequeathed to him: not only did he remain a fervent andenthusiastic American but he cultivated his nominal affinity withAbraham Lincoln with an almost religious adoration. At the same time,his life long veneration of his parents, and especially his mother ofwhom he speaks in the most devoted and affectionate terms, kept hiscommitment to Judaism and Jewish religious and charitable causesever alive and active. The American and Jewish faces of his personageare very impressively illuminated in the fittings of his chambers in theFederal Court Building in Chicago: one of the long high walls iscovered from top to bottom with pictures, sculptures and documents ofAbraham Lincoln; the opposite wall, only a little smaller, is coveredwith copies of all the portraits and sculptures ever made of Moses OurTeacher. This private museum is as unique as is its owner.

After several years of service on the bench of Illinois state courts, hewas appointed Federal Judge in the U.S. District Court of Chicago. Heis a very distinguished and highly reputed judge. I have heard his praisesung not only by attorneys and by the judges of his own Court, but alsoby appellate judges both in Chicago and in Washington. When afterseveral decades of exacting work he decided that it was time for him to

retire, he was persuaded to accept nomination as Senior Judge - byvirtue of which he is still being recalled to sit on the bench when thereoccurs a shortage of judges or an overload of cases for trial.

The most conspicuous of his attributes is that he is a man of theworld. Always impeccably dressed and painstakingly well-groomed, hebestows his custom on all the fashionable and elegant places ofChicago. To accompany him into a restaurant is to witness the trium-phal entry of the most coveted patron. Those who had - like ourselves -the pleasure of being hosted by him in Chicago, partook of a resplen-dent hospitality.

And he is the most jovial and convivial of men: outside his court-room he never displays any puffed-up judicial bearing, but onlycheerful congeniality, and even inside his courtroom, he goes out of hisway to be amiable with attorneys, reassuring frightened witnesses andencouraging dumbfounded litigants. Little wonder that the Jewish legalfraternity hails him as a paragon of lovingkindness.

All our Congresses were graced with his presence, and he madegood and lasting friends of each and all of attending colleagues,perfectly implementing one of our foremost original goals, tostrengthen ties of friendship between Jewish lawyers from all parts ofthe world. All of us wish the beloved nonagenarian many more blissfulyears in good health and spirits.

Justice Haim CohnFormer Deputy President of the Supreme Court of Israel

and Honorary President of the Association

Abraham Lincoln Marovitz at 90

December 1995No. 7

25

Extracts from the inaugural statementmade by Mr. Daniel Lack on behalf ofour Association during the 47thsession of the UN Subcommission onPrevention of Discrimination andProtection of Minorities: Eliminationof All Forms of Intolerance andDiscrimination based on ReligiousBelief.

he Association was foundedin August 1969 and has as itsprimary purpose to contributeto the establishment of aninternational legal order based

on the rule of law in relations between allnations and to promote respect for humanrights and the equality of all peoples andStates to live in peace.

This agenda item is of prime interest tothe IAJLJ. We consider that freedom ofthought, conscience and religionenshrined in Articles 18 of the UniversalDeclaration and the InternationalCovenant of Civil and Political Rights,lies at the centre of the cluster of funda-mental human rights and freedoms whichgives humankind its inherent quality. Noauthority on earth can interfere with thehuman thought processes that determineindividual convictions and belief,whereas the attempt to interfere withfreedom of opinion and expression, beingby its very nature an externalization ofthe thought process, is more readilysubject to denial and abuse. For thisreason freedom of religion and belief isrecognized under Article 4 of theCovenant as one of the seven funda-mental rights and freedoms, which mustremain inviolate at all times and fromwhich State parties cannot derogate, evenin times of national emergency.

The Subcommission has before it thesecond annual report of the currentSpecial Rapporteur of the Commissionon Human Rights, Mr. Abdelfattah Amorand the eighth since the 1986 decision ofthe Commission that manifestations ofintolerance and discrimination based onreligion or belief ÒinconsistentÓ with the

bring such evidence of restrictions ordenial of religious freedoms to the atten-tion of the competent nationalauthorities.

It is clear however that the 27 situa-tions reported last year as compared withthe 49 in this yearÕs annual report of theSpecial Rapporteur, confirm that there isa sharp deterioration with respect toprovisions of the 1981 Declaration. It hasfrom the outset been apparent that denialof freedom of religion and incidents ofintolerance and discrimination cannot beclearly distinguished from situations inwhich other basic human rights areviolated. The Committee on theElimination of Racial Discriminationmonitoring reports of the 143 Stateparties to the convention on this subject,has asserted that intolerance and discrim-ination on grounds of religion arefrequently inextricably linked with situa-tions of racial and ethnic discrimination.

Various kinds of harassment or perse-cution such as arbitrary arrest anddetention, torture or ill treatment arecurrently being reported to the SpecialRapporteur on religious intolerance.Incidents of large scale loss of life attrib-utable to a mixture of ethnic hatred andreligious extremism have been recordedin Bosnia-Herzegovina and other areas ofthe former Yugoslavia by theCommissionÕs Special Rapporteur Mr.Tadeusz Mazowiccki, who has since

The Future of ReligiousIntolerance

Daniel Lack

Adv. Daniel Lack represents the IAJLJ at UNbodies in Geneva.

Tprovisions of the 1981 UN Declarationon this subject - be the subject ofreporting procedure to the Commission.

Mr. Amor has closely followed themethodology of his predecessor Mr.DÕAlmeida Ribeiro. We would like to

congratulate Mr. Ribeiro on the impor-tant contribution he made to revealingthe growing threat to freedom of religionand conscience and the significantpattern of inquiry and dialogue he hasestablished where situations of violationof freedom of religion and conscienceoccur. We commend Mr. Amor infollowing in Mr. RibeiroÕs footsteps andpursuing consistently the response ofStates, particularly where State action isat issue in provoking, condoning orencouraging the recurrence of such viola-tions. Both have encouraged non-governmental sources to provide relevantinformation and have not hesitated to

No. 7December 1995

26

Religious intoleranceand extremism is

jeopardizing the right ofindividuals and peoples

to peace and isprejudicial to human

rights as a whole.

resigned in protest at the internationalcommunityÕs failure to take effectiveaction.

Other areas of concern in this yearÕsreport include heavy loss of life in riotingbetween Muslims and Hindus in variousparts of India in recent months, acts ofsevere religious intolerance by theauthorities in Sudan, widespread assas-sinations in Algeria by Islamicfundamentalists and extremists threat-ening to extend their terrorist campaignsto other countries of the Maghreb. Theactions of religious extremists in Egypthas also continued unabated, frequentlydirected against the Coptic religiousminority.

The regrettable massacre of Muslimworshipers in the Hebron mosque by aderanged individual is mentioned by theSpecial Rapporteur. As has been widelyreported, this tragedy was the subject ofimmediate remedial action including theappointment of a court of inquiry whoserigorous security recommendations toprotect worshippers at this site, werepromptly implemented in full, with allresponsible sectors of public opinion,both secular and religious, unanimouslycondemning this heinous act. Both priorto and subsequently, as the SpecialRapporteur has also reported in part,Hamas militant extremists havecommitted repeated bombing attacksagainst Jews by detonating explosivedevices in crowded areas, principally onbuses and public transport centresfrequently with heavy loss of life andwidespread injury to travellers in a patentattempt to wreck the Middle East peaceprocess. These atrocities, althoughcommitted in an essentially politicalcontext, are nonetheless of great concernin connection with the increasing

But what happens to these painstakingand carefully prepared reports of theSpecial Rapporteur? They are listened towith scant attention by the Commissionstruggling to get through a crowdedagenda and after a brief debate with littleanalysis of substance, they are filed togather dust even though they areconscientiously followed up by theSpecial Rapporteurs. RitualisticCommission resolutions deploring thesephenomena do not produce effectiveaction and other than the impact onpublic opinion, which is of marginaleffect to authorities defying the rule oflaw and a matter of indifference to extre-mists, the international communityresigns itself to inaction.

The Subcommission has a specialresponsibility in proposing the wayforward. Some 30 years ago, the seminalstudy by Mr. Arcot Krishnaswamyproposed the drafting of a body ofbinding principles by States to protectfreedom of religion and conscience andto combat incitement to hatred andviolence on grounds of religious prej-udice and intolerance. The legislativehistory which led to the dichotomy ofapproach distinguishing between racialand religious discrimination is well-known, going back to the twin resolu-tions of the General Assembly of 1962(General Assembly Resolution 1780/1781 (XVII). The Declaration on theElimination of All Forms of RacialDiscrimination was adopted by theGeneral Assembly Resolution in 1963and the Resolution which it adopted in1965 opened the Convention for signa-ture and ratification two years later andits entry into force with the twenty-seventh ratification in 1969. TheDeclaration on Religious Intolerance

phenomenon of religious extremismdistorting the precepts of a major mono-theistic world religion, which the Hamasgroup variously inspired by the MuslimBrotherhood and the Hizbullah, falselypurports to represent. In its frenzied anddiabolical rhetoric as published in its so-called covenant, this fanatical terroristsect calls for the spilling of Jewish bloodwhether in Israel or abroad as an act ofworship. It is consequently feared thatreligious extremists of similar inspirationare linked to the atrocious car bombterrorist attack on 18 July 1994 inBuenos Aires against the seven-storey

building housing amongst others, theoffices of the representative nationalJewish institutions of the Argentinecommunity, resulting in the death ofalmost 100 persons including passers byand 200 injured. Investigations over thepast year have produced no conclusiveevidence of the perpetratorÕs identity. Itis one of the many examples of thedangers of religious extremist zealotswho in betrayal of the very values theyseek to defend, commit acts of self-immolation to secure the death of theirvictims, convinced that they will therebyopen the gates to paradise.

December 1995No. 7

27

finally saw the light of day only 12 yearslater and consideration of drafting abinding convention 14 years subse-quently in 1995 still remains a deadletter.

While the text of the 1981 Declarationis well drafted and could be the basis ofan extended treaty text converting impre-cise commitments into bindingobligations on all future State parties,departures from its standards are consid-ered today as inconsistencies withprinciples of a non-binding character andnot as violations of positive internationallaw. We sympathize with the aspirationsof the Special Rapporteur to consider theeducational process as the ultimateremedy, but realistic expectations fromthis approach as well as the no lessimportant road of inter-religiousdialogue, will involve slow and pains-taking progress over many decades.

No effective argument has beenproduced to date to contradict the clearrecommendations of Odio Benito to theSubcommission as its Rapporteur of thestudy on this question in 1986 to proceedforthwith in drafting a binding inter-national convention. The study didhowever have a positive outcome in theappointment of Mr. Ribeiro by theCommission on Human Rights, and helost no time in his monitoring activitiesto endorse strongly Mrs. Odio BenitoÕsrecommendations.

It is however somewhat disappointingthat the present Special Rapporteur hashad such a half-hearted reaction to theproposal of drafting a convention on thebasis of the 1981 Declaration. Asexpressed in his report of last year whencommenting on Mr. Theo van BovenÕs1989 study of this question, Mr. Amorcautions that ÒSuch an instrument should

system should be created, as opposed tothe drafting of a further optional protocolto the Civil and Political RightsCovenant are premature at this stage.Even less persuasive are the objections ofan administrative character with respectto the lack of budgetary resources, theadded burden of reporting to Statesparties and the unjustified fears that aprotracted drafting process would resultin a diminution of standards. A clearsignal from this Subcommission in theform of a recommendation to theCommission on Human Rights that asessional working group be convened atan early date to draft an internationalconvention, building on the importantbody of principles contained in the 1981Declaration with the declared aim ofconverting them into binding norms,would be a sign of hope to the inter-national community.

We believe that non-governmentalorganizations can contribute effectivelyto this process. The IAJLJ would beready to contribute to this processtogether with other like minded organiza-tions. In the interim, the mandate of theSpecial Rapporteur should be extendedand be continued in parallel with thecreation in due course of the appropriatetreaty body, charged with supervising thenew instrument. The need has beendemonstrated in other human rightsareas, of maintaining a functional rappor-teur at the universal level,notwithstanding the existence of thetreaty body supervising the conventionsystem. A recommendation of thisnature, would indeed be a fitting way tomark 1995 as United Nations Year forTolerance in an otherwise bleak humanrights horizon.

not be hastily drafted. Time is stillneeded to achieve significant progress inrespect of religious freedom and tocombat intolerance and discriminationbased on religion and beliefÓ. In thisyearÕs report Mr. Amor has developed inhis conclusions a surprising holisticapproach. Apparently, according to Mr.AmorÕs conception we must await theadoption of measures to eliminateextreme poverty and the promotion of theright to development before religioustolerance and non-discrimination can beachieved. This gradualist and evolu-tionary approach is disheartening and inour view even defeatist. Nothing in Mr.van BovenÕs study calls for postponingdrafting of a binding convention to theGreek Calends. On the contrary, Mr. vanBovenÕs useful comment shows astriking unity of purpose in linking thevarious elements in the UniversalDeclaration, the Civil and PoliticalRights Covenant and the principles setforth in the 1981 Declaration. The threatproposed by the resurgence of religiousand racial intolerance has been underdiscussion for well over 30 years. Itshould not be forgotten in the year of the50th anniversary of the end of WorldWar II and of the creation of the UnitedNations, that religious persecutionresulting in a policy of deliberate geno-cide on a scale unprecedented in humanhistory, was the springboard from whichthe promotion and protection of humanrights has developed.

We submit that the SpecialRapporteurÕs conclusion that religiousintolerance and extremism is jeopard-izing the right of individuals and peoplesto peace and is prejudicial to humanrights as a whole, is nearer the mark.Suggestions as to whether a further treaty

No. 7December 1995

28

approach the handling of thistopic with a certain fear. Inhighlighting some issues,others, naturally, remain in thedark. Those which stay in the

dark might be of importance, yet there isno way to illuminate all issues within thelimited scope of this review.

I will try my best to describe the majorrecent changes that have occured inIsraelÕs Constitutional Law and pinpointsome of the legal problems to which thesechanges give rise. The legislation thatcaused these changes was enacted inMarch 1992. Many of the problems that itraises have not yet been decided by theIsraeli Supreme Court and the law is not yet clear.

We will begin our review by outlining some basic tenets ofIsraelÕs constitutional legal system.

A Written Constitution in IsraelIsrael does not have a single formal instrument which is

considered a Constitution. Instead it has a series of Basic Laws,that were enacted in the years following the establishment of theState of Israel on May 15, 1948.

Originally, the intention of IsraelÕs Founding Fathers was tocause the enactment of a Formal Constitution at the very firststage of the establishment of the State of Israel. They expressedthat intention in the Declaration of Independence. TheDeclaration which was proclaimed on Friday, 14 May 1948, justbefore the British Mandate on Palestine expired, called for elec-tions to a Constituent Assembly. The elections were supposed to

take place no later than October 1, 1948and the role of the elected ConstituentAssembly was to formulate a Constitution.

One other statement made in theDeclaration of Independence which isimportant to an understanding of theConstitutional process should bementioned. The Declaration vested legis-lative powers within a temporary nominatedbody called the Provisional Council of Stateand that CouncilÕs executive body wasappointed as the Temporary Government.

The elections to the ConstituentAssembly did not take place on time butwere postponed. Israel found herself in a

very difficult situation after declaring her Independence. Shewas attacked by her Arab neighbours as the War ofIndependence broke out.

Though the War of Independence was still continuing, theelections to the Constituent Assembly took place on January 25,1949. A law passed by the Provisional Council of State justbefore the elections to the Constituent Assembly, provided thatthe Constituent Assembly would replace that Council andbecome the legislative body. This law did not mention anythingabout the Constituent AssemblyÕs power to formulate theConstitution. But, as mentioned above, the Declaration ofIndependence provided explicitly that the Constitutent Assemblywould formulate the Constitution.

The Constituent AssemblyÕs life was quite short. It passed alaw which stated that the legislator would be called ÒTheKnessetÓ and that the Constituent Assembly would be called theÒFirst KnessetÓ. According to that law, the First Knesset wasvested with the power that the Constituent Assembly had, tolegislate regular laws and to formulate the Constitution. The

Highlighting Constitutional Changesin the Israeli Legal System

Yaffa Zilbershatz

I

Dr. Yaffa Zilbershatz is a lecturer in law in Bar-Ilan University, Tel Aviv.

December 1995No. 7

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First Knesset passed a law which transferred its powers to theSecond Knesset and on to any other Knesset to be elected in thefuture. It is debated among scholars whether the Second Knessetand its successors were vested only with the power to legislate orwhether they also inherited the power of the First Knesset toformulate the Constitution.

When the question of enacting the Constitution arose in theFirst Knesset, the religious members of the Knesset were againstit. They were afraid that a Constitution providing for freedom ofreligion and conscience would cause the annulment of certainlaws compelling a large part of the Israeli population to followthe Jewish religion. Other members of the Knesset opposed theenactment of the Constitution since they believed that the timewas not ripe for drafting the Constitution.

As a compromise, the First Knesset adopted a decisionproposed by Member of Knesset Harrari on June 13, 1950. Thisdecision stated that the First Knesset required the KnessetÕsCommittee of Constitution and Law to prepare a draft of aConstitution. However, this Constitution was not to be enactedin one stage. Rather, the Committee was to draft parts which, iflegislated by the Knesset, would be considered Basic Lawsbecoming part of the future Constitution. Once the Committeefinished its work, all Basic Laws would be assembled andbecome the Constitution of the State of Israel.

To date, the Knesset has enacted eleven Basic Laws.* Notcounting the 3 new Basic Laws we will be soon discussing, mostof the provisions of the remaining 8 Basic Laws are notentrenched, meaning that they can be amended by a regularmajority vote. The Supreme Court has decided that they mayalso be amended by regluar laws and not necessarily by BasicLaws. This Supreme Court decision has been widely criticizedby scholars, but has not yet been changed.

There is much to be said about the content and normativecharacter of the Basic Laws. While we are unable to referdirectly to all these issues here, we shall deal with them indi-rectly through our discussion of the changes brought about bythe new Basic Laws enacted in 1992.

Basic Law: The GovernmentThe Basic Law: The Knesset was adopted in 1958 and, a

decade later, in 1968 Basic Law: The Government was adopted.Read together, Basic Law: The Government and Basic Law:

The Knesset show that Israel is a democratic state with aParliamentary regime. The people elect the Knesset. ThePresident of the State of Israel then lays upon a member of theKnesset the duty of composing a Government. It is most likelythat he will lay this duty upon the member of the Knesset who ishead of the party which has won the highest number of seats inthe Knesset. Such member of the Knesset has the best chance toform a Government through arranging a coalition of parties.Once a member of the Knesset succeeds in forming aGovernment, the Government has to receive an expression ofconfidence from the Knesset. This means that the people electthe Knesset and the Knesset has the power to approve theGovernment in the name of the people. The Knesset has also thepower to disapprove the Government: Once the Knesset votes noconfidence in the Government, the Chairman of the Knessetinforms the President thereof and the Government resigns as ofthe date of the disapproving vote.

In March 1992, the Knesset adopted a new Basic Law: TheGovernment which is to replace the original version. The newlaw was adopted in 1992 but is not in yet force. The comingelections to the Fourteenth Knesset in 1996 will be according tothe procedure prescribed in this new law and the law itself willcome into force on the day on which the Prime Minister electedaccording to the new procedure takes office.

The new Basic Law: the Government creates a considerablechange in the Israeli regime. The law separates the election ofthe Knesset from the election of the Prime Minister. The peopleelect the Knesset but they also directly elect the Prime Minister.The elected Prime Minister forms his Government. TheGovernment as a whole does not have to receive the confidenceof the Knesset even though any appointment of a Minister by thePrime Minister requires approval. The Government is allowed tostart functioning from the day the Prime Minister presents it tothe Knesset.

This constitutional change means that Israel no longer has apurely Parliamentary regime. The Parliamentary regime hasbeen changed by the new Basic Law. It is now more like aPresidential regime where people directly elect the head of theexecutive branch. However, the new law does not go all the waytoward a Presidential regime, since the existence of the

* Basic Law: The Knesset; Basic Law: Israel Lands; Basic Law: ThePresident of the State of Israel; Basic Law: The Government; Basic Law:The State Economy; Basic Law: The Army; Basic Law: Jerusalem,Capital of Israel; Basic Law: Judicature; Basic Law: State Comptroller.

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Government is still, to a certain extent, dependent upon theKnesset. The Knesset can decide in a vote of a majority of itsmembers (61 members) to disapprove the Prime Minister.Should the Knesset vote that way it, too, is dissolved, and newelections take place for both it and the Prime Minister.

In addition, according to the new Basic Law, not only are thePrime Minister and his Government dependent on the Knesset,but the Knesset is also dependent on the Prime Minister. If hesees that the majority of the members of the Knesset oppose hisGovernment and that he cannot run the affairs of State properly,the Prime Minister, after receiving the consent of the President,may dissolve the Knesset. This, too, would cause new electionsboth of the Prime Minister and of the Knesset.

There are, of course, more changes and new arrangements inthe new Basic Law: The Government. I would like to refer toone particular arrangement of that law which, in my opinion, isof major importance to the Israeli constitutional legal system.

In the Israeli legal system, the legislature has the power toenact laws, and the executive may make regulations if soprovided by law. As a rule, a regulation cannot contradict a lawunless the executive acts under its emergency powers, and eventhen, such a regulation is limited in time and manner.

The emergency powers of the Government are provided inArticle 9 of the Law and Administration Ordinance. Accordingto this article, if and when the legislature proclaims officiallythat the State is in an emergency situation, the Government mayallow the Prime Minister or any other Minister to enact emer-gency regulations for the security of the country, the security ofthe public, and the supply of necessary goods and services. Suchregulations may contradict a law, but they are to expire threemonths after their enactment if the Knesset does not enact a lawto lengthen their application.

On May 19, 1948 the Provisional Council of the State of Israelwhich was the legislative body at that time, declared the exis-tence of a state of emergency. This declaration is still in forceand it enables the executive branch to make regulations thatcontradict laws if they are for the purposes mentioned in Article9 of the Law and Administration Ordinance.

There is no doubt that Article 9 suited the needs of the time ofits enactment. The country was at war and assembling theGovernment, let alone the whole Knesset, was nearly an impos-sible task. Nevertheless, one cannot ignore the fact that duringthe forty eight years of its existence, Israel has not always beenat actual war. The security situation has its ups and downs.

Sometimes there is actual war, sometimes the situation is verytense but there is no actual war going on, and at other times lifeis almost as normal and stable as if there were no security prob-lems in the region. Legally, however, the Knesset has notcancelled the proclamation of the existence of the emergencysituation, and the executive has full emergency powers as if thecountry was at constant war.

This undesirable legal situation is amended by the new BasicLaw: The Government. In Articles 49, 50 and 64, a new arrange-ment for an emergency situation is provided. It substitutes thearrangements of Article 9 of the Law and AdministrationOrdinance.

According to the new Basic Law, the Knesset, on its owninitiative, or at the request of the Government, may proclaim theexistence of an emergency situation. The proclamation will bevalid for only a limited period of time which cannot exceed oneyear. The Knesset may repeat its proclamation as providedabove. In case the situation does not enable the assembly of theKnesset, the Government may proclaim the existence of anemergency situation. Such proclamation expires seven days afterit was made unless the Knesset decides to confirm it.

The provisions of the new Basic Law regarding the emergencysituation are made to suit the complicated security situation inIsrael. If war breaks out, even the Government alone canproclaim the existence of an emergency situation. But if not inthe midst of a war, the Knesset alone has the power to proclaimthe existence of the emergency situation. But unlike the formerlegal arrangement, such proclamation will not last forever. It willbe limited to a maximum of one year. If there is a request tostretch it beyond the period of one year, the Knesset will have tomake a new proclamation and consider whether it is appropriateto continue the state of emergency.

Once an official proclamation of the existence of a state ofemergency is made, the Government is vested with powers tomake emergency regulations. These regulations, however, mustpertain specifically to the situation at hand. Additionally, underno circumstances, may these regualtions preclude a petition to acourt of law or impose retroactive punishment, or impinge uponhuman dignity. These requirements not provided for in Article 9of the Law and Administration Ordinance serve as a very impor-tant guardian of the rule of law. They ensure that no regulationcontradicts a law unless strictly required by the exigiency of thesituation. They also make sure that such regulations will be nulland void should they encroach upon some basic human rights.

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Basic Law: Human Dignity and Liberty andBasic Law: Freedom of Occupation

Enacting a Bill of Human Rights in Israel has always been avery complicated task. Israeli society, being a melting pot ofJews coming from all parts of the world, is divided in itsmentality and priorities of life. One of the major social tensionsis between the religious and non-religious population.

It has been very difficult to overcome the gap between thedemands of the religious parties in the Knesset and those of thenon-religious ones. That is the main reason why since the estab-lishment of the State of Israel, all attempts to enact a Basic Lawon Human Rights have not succeeded. The legislature sitting inits capacity to enact Basic Laws, came to the conclusion that itwould rather pass a partial Bill of Rights than have no Bill at all.And that is how these two Basic Laws: Human Dignity andLiberty and Freedom of Occupation came into existence inMarch 1992.** They were a compromise, and they embodiedrights that the different parties in the Knesset both religious andnon-religious agreed upon.

What rights are provided by these two Basic Laws?Basic Law: Freedom of Occupation provides for the right of

every citizen or resident of Israel to hold any occupation orprofession. Basic Law: Human Dignity and Liberty providesexplicitly for the protection of a personÕs life, body and dignity.It also provides for the protection of every personÕs property. Itstates explicitly that the liberty of a person should not behampered by arrest, detention, extradition or in any other way. Itcalls for the freedom of every person to leave the country and forthe right of every citizen to enter Israel. It also provides for theright of privacy.

One can easily see that the list is partial. It does not explicitlyinclude such fundamental freedoms as freedom of speech,freedom of religion and conscience, or the freedom of assembly.Nor does it speak about legal rights in criminal and penalmatters, and the principle of equality is also absent from the textof the Basic Law. Moreover, no reference is made to economicor social rights. What then, is the status of these rights within the

Israeli legal system, since they are not mentioned explicitly inthe text of the Basic Laws?

The answer to this question lies in a clarification which is tobe stressed. Although the enactment of a Basic Law on HumanRights was not accomplished until 1992, the Israeli legal systemdid, indeed, provide for the protection of human rights. In theabsence of a law, the Supreme Court took upon itself the impor-tant task of securing human rights for every person in Israel. Itstated in famous and important leading decisions that freedom ofspeech, the right of assembly and association, freedom of occu-pation, the right to leave a country, freedom of religion, theprinciple of equality, the right to privacy, etc. are basic andfundamental principles of the Israeli legal system. This meansthat these two Basic Laws did not create someting new, rather,they codified some of the rights that had previously been recog-nised by the Supreme Court. By enacting the new Basic Laws, apart of the CourtÕs decisions have become enscribed in law.

What are the legal consequences arising from the codifi-cation? Does it change the normative character and theapplication of the rights enumerated in the Basic Laws? Ananswer to these questions leads us to the essential debate aboutthe legal consequences of the enactment of Basic Law: Freedomof Occupation and Basic Law: Human Dignity and Liberty.

Until the enactment of these laws, the Israeli court did notdeclare a law void except in very rare circumstances. When alaw of the Knesset contradicted one of the only three entrenchedarticles among all Basic Laws, and this law was not passed bythe required majority, the court would annul that law. That is tosay that if on rare occasions the court declared a law void, it didso only for the procedural reason that the law was not properlyenacted. The court did not consider itself competent to annullaws even if their content conflicted with one of the very funda-mental basic rights.

In a line of articles and in his comprehensive book onConstitutional Interpretation, Chief Justice Barak expresses theview that the two Basic Laws: Freedom of Occupation andHuman Dignity and Liberty changed this legal situation andcreated a constitutional revolution. He points at Article 8 ofBasic Law: Human Dignity and Liberty and Article 4 of BasicLaw: Freedom of Occupation as the legal sources for thisrevolution.

Article 8 of Basic Law: Human Dignity and Liberty andArticle 4 of Basic Law: Freedom of Occupation (hereinafter:Articles 8 and 4) provide that the rights conferred by the Basic

** Basic Law: Freedom of Occupation was amended in March 1994 and thisamendment included also two additions to Basic Law: Human Dignityand Libery. When we refer to these two Basic Laws we refer of course, tothe amended version of both laws.

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the Supreme Court adopts Chief Justice BarakÕs approach andgives the court the authority to annul laws, the court will only beable to annul such laws which stand in conflict with the rightsprovided in the Basic Laws: Freedom of Occupation and HumanDignity and Liberty. Infringement upon fundamental rights notincluded in the Basic Laws will not be cause to annul laws evenif such an infringement is not for a fitting purpose and is beyondthe extent necessary.

Such a conclusion focuses on an important debate regardingthe method of interpretation of the Basic Laws. Are Basic Lawsto be interpreted according to the strict wording of the textbearing in mind the intent of the legislator, or should the text beconsidered an independent instrument that may be widelyconstrued in order to fulfil the goal of maximum protection ofhuman rights? Should the court adopt a strict method of inter-pretation, the list of rights protected under these two Basic Lawswill be quite limited. If, however, a wide method of inter-pretation is adopted, a court could then insert into the conceptsof human liberty and human dignity most other fundamentalhuman rights, including those not explicitly mentioned in thetext.

Conclusion

Whether one sees the constitutional changes in the Israeli legalsystem as a revolution or not, one cannot ignore the fact that thethree Basic Laws enacted in March 1992 are of considerableimportance and will surely have a great influence upon theIsraeli constitutional legal system. Many questions that thesechanges raise find an answer in the Supreme CourtÕs decisionnow decided on appeal. This decision clarifies many constitu-tional issues and sheds light on most of the problems discussedabove although it is still preferable to have these questions andproblems solved by the legislator. The Knesset has not yetenacted a Basic Law on legislation and has not yet completed thelegislation of a Basic Law on Human Rights. The time is ripe forcompleting such legislation which will put the constitutional lawof Israel on a firmer and clearer basis.

Ed. Note: This article was prepared prior to the delivery of the extremelyimportant and voluminous (500 page) decision concening the validity of anamendment to a law regarding financial regulations in the agricultural sector(the Gal Law). The latter decision of 9 Justices of the Supreme Court answersmany of the questions raised in this article and will be reviewed by Dr.Zilbershatz in one of the next issues of JUSTICE.

Laws shall not be infringed save where provided by a law whichaccords with the values of the State of Israel, which wasintended for a fitting purpose and only to the extent necessary.

What would happen should a law not conform to the require-ments of these articles? What if the Knesset enacts a law that isnot for a fitting purpose or if a law restricts one of the rightsenumerated in the Basic Laws to a greater extent than necessary?

Both laws are silent and give no explicit answers to thesequestions. According to Chief Justice Barak, it is the court thathas to decide whether a law passed by the Knesset does notcontradict these two Basic Laws. The court will have to seewhether the law infringes upon the basic rights, and whethersuch infringement meets the requirements of Articles 8 and 4. Ifthe law which infringes upon the basic rights conforms to therequirements of Articles 8 and 4, it is legal. But, according toChief Justice Barak, should the court reach the conclusion that alaw infringes upon the basic rights but is not for a fitting purposeor encroaches upon them to a greater extent than necessary, thecourt has the capacity to annul that law. Many legal scholars inIsrael agree with Chief Justice BarakÕs approach. But others aremore sceptical and doubt whether judicial review may beimposed in such an indirect manner, without an explicit instruc-tion from the Knesset.

Chief Justice Barak himself, while advocating judicial review,recognizes the problems that such an incomplete law raises.Even if one agrees that the power to apply judicial review can beinferred from the two Basic Laws, it is still not clear whichconstitutional remedies may be provided by the court. Will itdeclare a law infringing upon a right not according to the criteriaof Articles 8 and 4 to be void or voidable? Can every court oflaw in Israel decide upon the validity of the law or must such adecision be referred to the Supreme Court which will sit as aConstitutional Court? It would have been much easier and moreproper for the Israeli constitutional legal system that the answersto these questions be provided explicitly in a Basic Law. But, asexplained above, the Knesset is divided on these issues and, todate, has been unable to reach an agreement and provide clearlegal solutions with regard to them. The Knesset must bear inmind that if it does not supply explicit solutions as to the exis-tence of judicial review and its scope, the Supreme Court will beforced to fill in the gaps.

Going back to the question we raised before about the differ-ence between the fundamental rights enshrined in the BasicLaws and those which are not, the answer is now very clear. If

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n March23 1944,the Res-istanceexploded

a bomb in a Romestreet as a companyof German soldierswere marching by,killing 32 of them.

Rome at thattime was occupiedby Nazi troops anda reprisal was im-mediatelymounted: for eachdead German soldier ten Italian citizens were to be executed.Civilians were immediately rounded up in their houses and inthe streets, and political prisoners and Jews were picked out.

The next day these hostages were taken out and shot a fewkilometres outside the city walls, at a site from which buildingmaterials were quarried, and which since that time has beencalled Le Fosse Ardeatine (the ÒArdeatine GravesÓ).

As a warning to the local people, fifteen more people wereshot in addition to those killed in reprisal, bringing the total

number to 335, instead of the 320 planned. Thus one crime wascompounded by another.

Responsibility for carrying out and organizing this ferociousreprisal lay essentially with two Nazi officers: Lt-ColonelHerbert Kappler, and SS Captain Erich Priebke.

Kappler was later captured by the liberation forces, convictedand sentenced to life imprisonment, while Priebke managed toescape, without even being tried in his absence, and simplyvanished.

Fifty years later, Priebke was discovered in Argentina and thePublic Prosecutor of the Rome Military Court applied for hisextradition to Italy to stand trial, charged with Òconspiracy inacts of violence and the aggravated murder of Italian citizensÓ(Articles 13 and 185(1) and (2), Wartime Military Penal Code,in relation to Articles 81, 110, 575 and 577(3), (4), (61) and (4)of the Italian Penal Code). As a member of the German ArmedForces, which were enemies of the Italian State, he is chargedwith having conspired with Herbert Kappler and other Germansoldiers (already convicted) to commit several actions to imple-ment the same criminal plan, treating the victims cruelly, andcausing the death of 335 members of the military and civilians,mostly Italian citizens, who had played no part in the war,executing them with premeditation by shooting them in theArdeatine Quarries on 24.03.1944 while Italy and Germany werein a state of war.

This crime has not been time-barred under Italian law, and inhis statements to the media Priebke has never denied taking partin shooting the hostages, claiming that his action was lawful atthe time, both because the reprisal had to be considered legal,and because he had not acted on his own initiative but wasobeying orders.

Negligence, Reprisal or Collective Punishment?If the accused retracts his public statements at his trial and is

able to prove that some of the persons over and above the orig-inal number were shot by mistake because their names had beenput on the list as a result of negligence rather than by willfulintent, he could be acquitted because a crime committed as aresult of negligence would be time-barred.

But quite apart from the overall role played by the defendantin these events, this episode cannot be merely considered to be aresult of his Òextraordinary negligenceÓ.

Priebke is charged with being party to a crime of violenceagainst private individuals, his enemies. This rules out the

TheÒArdeatineGravesÓ Massacre

The Extradition and Trial ofErich Priebke

Oreste Bisazza Terracini

Dr. Terracini is a Deputy President of the Association and President of theItalian Section.

O

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charge of abuse in reprisal (Article 176 of the Wartime MilitaryPenal Code) because in technical and legal terms it was not areprisal but an inhuman massacre in which one 16-year old boyand 75 members of the Jewish Community of Rome were put todeath, guilty merely of belonging to a particular ethnic and relig-ious group. No defence, save absolute necessity for the purposesof the war, can justify the mass murder of defenceless citizens,who are wholly extraneous to military operations.

This is the conclusion one reaches even without takingaccount of the 1949 Geneva humanitarian conventions inwartime abolishing the international right to armed reprisals -because it was a primitive instrument likely to lead to all kinds

They emphasize the following:The obligation to ÒrestoreÓ and as far as possible guarantee

law and order and public life, ensuring compliance with the lawsin force in the country, unless absolutely prevented from sodoing (Article 43).

The prohibition on obliging the populations in an occupiedterritory to provide information on the army of the other bellig-erent and on its means of defence (Article 44).

The duty to respect the honour and rights of the family, thelives of individuals, private property and also religious confes-sions and worship (Article 46).

No less important, lastly, is the ban on collective punishmentsof abuse and to extend violence to acts ofbarbarism - applying the principle thatcriminal law cannot be applied retroac-tively enshrined in the ItalianConstitution (Article 25(2)).

For as the law stood at the time of themassacre, an essential distinction wasdrawn between reprisal, collectivepunishment and revenge as means ofself-protection in international relations.The 1907 Hague Convention (ratified byboth Italy and Germany) and in particularthe Regulations annexed to the FourthConvention Relating to the Laws andCustoms of War on Land, expresslyrefrain from using the word ÒreprisalÓ.

Conversely, Section 8 of the ItalianWar Act (enacted by Royal Decree on 8July 1938) took up and definedÒreprisalÓ, as developed in the literature,

(Article 50): no collective punishment, inthe form of a fine or any other kind, maybe imposed on the population for indi-vidual actions for which they cannot beheld jointly and severally liable.

In conclusion, the ÒArdeatine GravesÓmassacre against the background of thewar in which it took place and the contin-gent events giving rise to it cannot byany standards be considered a ÒreprisalÓin its technical and legal sense, which hasdifferent connotations from its ordinarymeaning.

The mass shooting was intended to bea collective punishment, in terms of itspower to intimidate (which is alsobanned in international law). In the wayin which it was planned and carried out,it was a barbaric and savage act of collec-tive revenge.

carefully taking out the features that emerged as it developedthrough time - from being an instrument of self-defence usedarbitrarily to encompass a range of unilateral measures which areessentially subject to constraints deriving initially from custo-mary law and subsequently from the law of treaties.

In particular, the final subsection of Section 8 provides thatcompliance with rules issued in order to implement internationalconventions expressly banning reprisals can never be suspended.

It is therefore essential to refer to the Regulations of theFourth Hague Convention mentioned above, and more specif-ically to the obligations and prohibitions on military forcesoccupying the territory of an enemy state.

The massacre might be considered not only a war crime butalso a crime against humanity, including genocide, according tothe declaratory provisions of Articles I and II of the UnitedNations Convention adopted by Resolution 260 of 9 December1948, to which Italy acceded under Law no. 153 of 11 March1952. Because of the principle that criminal law cannot applyretroactively, the people responsible for executing members ofthe Jewish community cannot be indicted for the crime createdunder Section 12 of Law no. 962 of 9 October 1967, (on theprevention and punishment of the crime of genocide) resolvingthe underlying ÒtechnicalÓ problems relating to speciality andincorporation in the apparent combination of co-existing legal

The massacre of theÒArdeatine GravesÓ

against the backgroundof the war in which it

took place and thecontingent events givingrise to it cannot by any

standards be considereda ÒreprisalÓ in its

technical and legal sense,which has different

connotations from itsordinary meaning.

December 1995No. 7

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rules. In other words, the original charge made against Priebkeand his co-defendants remains unchanged.

It is, however, evident that whatever formal names may beused, they are still essentially crimes under international law, inthe ÒtechnicalÓ form of war crimes and crimes against humanityfor which the contemporary collective conscience demands thatno time bar should exist (cf. the Convention adopted by theUnited Nations General Assembly under Resolution no. 2391(XXIII) on 26 November 1968: the Council of EuropeConvention adopted at Strasbourg on 25 January 1974).

Obeying Superior OrdersThere is absolutely no justification for the conduct of the

accused on the grounds that he acted in the course of a dutybased on the obligation to obey orders of his superiors. For suchjustification under Article 40 of the Military Peacetime PenalCode, repealed by Section 22 of Law no. 382 of 11 July 1978,was not allowable when an order received from a higherauthority was carried out by performing a manifestly criminalact. The situation is essentially no different under Article 51(3)of the Penal Code which applies today.

Indeed, even GermanyÕs harsh military discipline left soldierswith a degree of freedom to judge the orders received. Article 7of the 1926 German Military Code (Reichsgesetzblatt) whichwas in force at the time the deed was committed, provided asfollows:

ÒIf the execution of a military order, in the course of duty,constitutes a violation of criminal law, the superior officerissuing that order shall be solely and personally liable, but thesubordinate putting that order into effect shall also be liable in sofar asi) he acts in excess of the orders received,ii) he was aware that the order of his superior involved an

action that entailed the commission of a crime and aninfringement of ordinary law and military criminal law.Ó

It is true that some German military defendants indictedjointly with Kappler were acquitted by the Rome MilitaryTribunal on 20 July 1948 on the grounds that they had acted onorders received from their superiors. But in their case they wereunaware that the order was unlawful and did not intend to carryout an unlawful order because, in view of their rank and theirrole, they were not in possession of all the facts underlying thecollective punishment decreed by their superiors or the form it

was to take, for they were at the bottom of the hierarchicalladder.

But their position cannot be likened in any way to the positionof Priebke, who occupied important executive functions in theGerman security police command in Rome, headed by Kappler(confirmed by the documentary evidence gathered during thepreliminary investigation, and forwarded by the Federal PublicProsecutor of Dortmund). In the light of the provisions of Article192(3) of the Code of Criminal Procedure, it is possible to checkthe truth of the statements made by PriebkeÕs co-defendantsregarding the part he played in carrying out the ÒArdeatineGravesÓ massacre.

The available evidence logically leads us to conclude thatPriebke worked jointly with Kappler in planning the executionof 320 people to avenge the 32 German soldiers who died in theattack in Via Rasella, Rome; he took part, and at all events didnot object to KapplerÕs initiative to raise the number of hostagesto be shot to 330, following the death of one of the soldiersinjured in the bomb attack.

Murder by MistakeThere still remains the problem of the proper indictment for

executing the other five persons by mistake. Article 82(2) of thePenal Code provides that a series of different events may consti-tute one and the same crime: the intended wrong (the murder of330 persons) is attributed to willful intent and the event causedby error (the death of five people) is attributed to objectiveliability.

Premeditation and CrueltyThen there are the aggravating circumstances set out in the

indictment: premeditation and cruelty, in relation to the specificform in which the collective executions were planned andcarried out. The reasons given in the verdict handed downagainst Kappler on the basis of the forensic medical evidence ofthe expert witnesses, highlighted the ferocious brutality of theexecution (pages 59, 67 and 68).

The deep, dark tunnels in the ÒArdeatine QuarriesÓ graduallyswallowed up in horrific succession all the men named on thelist, who had been led to the place in groups of five. As thedesignated victims were forced to wait outside the entrance tothe tunnels, they heard the screams of the victims who hadentered before them, punctuated by shots, and afterwards when

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The Ardeatine Quarries became the ArdeatineGraves.

The conclusion to be drawn is that responsibility for theinhuman and cruel psychological suffering associated with theway in which the execution was carried out must necessarily beattributed to those who, like Erich Priebke, were responsible formaster-minding the collective shooting operations.

On the basis of these considerations I believe that CaptainErich Priebke will be put on trial in Italy, and I am confident thathe will be convicted.

The International Association of Jewish Lawyers and Juristswill attend the trial, not as a direct party to the proceedings, butthrough myself as Counsel for the injured parties, the relatives ofthe victims of the massacre.

There are still many procedural hurdles to be overcome but,God willing, substantial justice will soon prevail through formaljustice, and the seal will be set once and for all on yet anothertragic chapter of history, by securing PriebkeÕs conviction.

their turn came to enter the tunnels, the torchlight lit up thebodies that lay strewn around or in piles.

The grim spectacle of the bodies of the first victims to beexecuted that awaited the victims designated to follow them asthe latter entered the tunnels and fell to their knees to be shot,was vividly described in the reconstruction of the witness Amonwho was present at the executions, but did not fire a shotbecause he could not muster the strength to do so. At the hearingon the 12 June 1948 he said, ÒI was supposed to shoot, but whensomeone lifted up the torch and I saw the corpses, I passed out...I was appalled by what I saw. One of my companions pushed measide and fired for meÓ (cf. the reasons given in the judgmentconvicting Kappler, page 22).

Lastly, before being shot, the intended victims were forced toclamber over the piles of bodies and kneel down with their headsbent forward to be shot in the neck. After the shooting stoppedmines were exploded to cut of that part of the tunnels where thebodies were heaped together in piles about one metre high.

The Ardeatine Graves Memorial, outside Rome, site of the Nazi massacre of 335 civilians on 24.3.1944.

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Studying the sources and establish-ment of laws in different countries, wetake into consideration the principle thatsimilar circumstances normally createsimilar needs and reactions.Consequently, it is understandable that ifa law is enacted in a given country as aresult of certain social needs, an identicalor similar law could be enacted inanother country if the circumstances andneeds are similar.

From a general point of view, in ouropinion, in no country or civilization can

aws are not improvisations,creations or caprices of asingle person or group. Theyare the products of life expe-rience and human nature, theresults of a social necessity to

confront difficult situations oftencommon to otherwise distinct countriesor civilizations.

If we study the evolution of the codesof law, beginning with the most ancient,the Sumerian Codes (circa 3,500B.C.E.), the Ur-Nammu Codes (circa2,050 B.C.E.), the Lipit-Ishtar Codes(circa 1860 B.C.E.) and the HammurabiCodes (circa 1790 B.C.E.) we see thatthe primary sources of law were prim-itive tribal customs, sometimes underreligious influence, later modified andtransformed by more advanced civiliza-tions into statutes or laws, eventuallyestablishing norms of conduct, enforcedby an authority, in order to satisfy socialnecessities.

The Influence ofJewish Law in

Anglo-AmericanLaw

Roberto Aron

Roberto Aron is a member of the AmericanSection of our Association. He has a Mastersdegree in Hebrew and Judaic Studies (N.Y.U.) andpractices at the New York bar.

L

we find a ÒchemicallyÓ pure, original andnon-influenced law. Even in the cases ofthe Bible and Talmud, and in spite of ourbelief in the divine origin of the Laws ofMoses, it is necessary to inquire whetherin our sacred books, there are not somelegal concepts derived from othernations. Compare, for example, theRoman principles of Jus Civile and JustGentium with the similar principles ofthe seven Noachide Laws found in theTalmud.

Two DiscoveriesA lot has been spoken and written

about the influence of Jewish law inAnglo-American law. For years, manyprofessors, lawyers and authors havenoted the fact that there is some influ-ence of Jewish law in both the Englishand American legal systems. To provethis, commentators have noted that it ispossible to make analogies linkingBiblical or Talmudic precepts withAmerican or English legal precepts.

To the best of our knowledge,however, no incontrovertible evidencehas ever been introduced to prove theanalogies; the influence has never beenestablished directly by saying, forexample, ÒHere, American or Englishlaw mentions its Biblical source.Ó Inother words, a Òsmoking gunÓ has notbeen found.

In preparing the thesis entitledÒAnalogies and Influence of Jewish Lawin Some American ConstitutionalAmendmentsÓ for a Masters Degree inHebrew and Judaic Studies at the NewYork University, I was lucky to maketwo discoveries: First, regarding theEnglish Law, I found a KingÕs Benchcase where, in a judicial decision in

No. 7December 1995

38

selves from the Official English Church,was for them equivalent to the JewÕsexodus from Egypt. There is extensiveliterature proving that the intention of thePuritanÕs was to establish in the newcountry the Mosaic law, and that Hebrewwould be the official language of thecountry.

These Puritans, inspired by the OldTestament, were the same people who, in1641, published in America the ÒBody ofLiberties of 1641". Their devotion to theOld Testament is reflected in a directcitation to Biblical precepts as the sourceof their ÒCapital LawsÓ (Article 94 withits 12 sub-articles), and in the Biblicalconcepts mentioned in its first 17 articlesas roots of the ÒLiberties of theMassachusetts Colonie in New England.Ó

The citation of Biblical precepts in theÒBody of Liberties of 1641", one of theearliest American systems of law, is thenexus that we were looking for in orderto prove the direct influence of Jewishlaw in the American law.

The limitless connections madeapparent by historical research areamazing. I began the research looking fora connection between Jewish law andAnglo-American law and, accordingly,found the ÒBody of Liberties of 1641",which is not only the incontrovertiblelink that we were searching for, but isalso an inexhaustible fountain of prin-ciples with startling ramifications in thepolitical and constitutional life of ourcountries; and which, certainly, deservesand requires more research.

The foregoing law of 1641 establishes,among other principles of democracy,that justice must be the same for allpeople; that the peopleÕs rights and prop-erty are inviolable; the freedom of speechand other freedoms.

1592, the Court took into consideration acase mentioned in the Bible. Second,regarding the American law, I foundÒThe Body of Liberties of 1641", part ofthe Colonial Laws of Massachusetts,which refers to the liberties of theMassachusetts Colony in New England.

The Influence of Jewish Lawin English Law

The case that we search out is theNorton d. Ratcliff v. Rowland, known asÒRatcliffÕs CaseÓ (Hil. 34 Eliz., - in theKingÕs Bench - 1592).1 This was anentangled custody case involving, as it ismentioned: ÒWho is entitled to be guar-dian by nature - Rules of Descent -Exclusion of the ascending line - Rightof primogeniture and of representation -Exclusion of the half-blood - Rule ofpossessio fraris.Ó

The pertinent part of the courtÕs deci-sion, regarding the Jewish law, says:

ÒYet because the common law dothdiffer in this point from the civil law,these reason of this principle of thecommon law were alleged, scil. That inthis point as almost in all others, thecommon law was grounded on the lawof God, which was said, was causacausarum, as appears in the 27th chap.of Numbers, where the case which wasin judgment before Moses was, thatSalphaad2 had issue five daughtersclaiming it jure propinquitatis, as theirbirthright, and next heirs to their father;the brothers claiming it as heirs malejure honoris to celebrate and continuethe name of their ancestors; and thiscase seemed of great difficulty toMoses, and therefore, for the decidingof that question, Moses consulted withGod; for the text saith... Why whichgeneral law (which extends not only tothe said particular case, but to all otherinheritances, to all persons, and at all

times) it appears that the fatherhimself, and all lineal ascension, isexcluded.Ó

There is also a marginal note, saying:

ÒWith respect to the reasons given inthis case excluding lineal ascent, Mr.Hargrave observes, that Ôneither ofthem seems satisfactory. The inferencefrom GodÕs precepts to Moses isunwarranted, unless it can be shewn,that it was promulgated as a law formankind in general instead of being,like many other parts of the Mosaicallaw, a rule for the direction of theJewish nation only. Besides, by theJews law, the father did succeed to theson in exclusion of his brothers, unlessone of them married the widow of thedeceased, and raised up seed to him.Ó

As we can see, the reference to Jewishlaw is so clear that any commentarywould be superfluous.

We cannot end this short section aboutthe influence of Jewish law in Englishlaw, without mentioning, at least, thesituation of the celebration of a Jewishmarriage in England, which is regulatedby Part III of the Marriage Act, 1949.

The Influence of Jewish Lawin American Law

It is difficult to find words to expressthe importance of the ÒBodies ofLiberties of 1641Ó proving the influenceof Jewish law in American law, and theimplications of that influence.

The Puritans, when they arrived inAmerica, believed and had a specialdevotion for the Old Testament, theJewish Bible, and also had knowledge ofthe Talmud. They believed in the NewTestament regarding ChristÕs history.The PuritanÕs voyage, liberating them-

December 1995No. 7

39

returned to Europe, helping in itsliberation, bringing - as a conse-quence of the French Revolution - thelight of the Emancipation to theJewish people, redeeming them ascitizens, like all citizens, with thesame rights and obligations.

This is the incredible boomerang: prin-ciples which were to become importantsources of fundamental historical docu-ments and the core of human rights anddemocracy emerged from the Bible ofthe Jews and returned to the Jews ofthe Bible.

We find later, in similar words, mostof the same principles repeated in theAmerican Declaration of Independence,in the American Constitution and in theBill of Rights.

If we consider that the FrenchDeclaration of MenÕs Rights andCitizenships was evidently inspired bythe American Declaration ofIndependence, we must conclude that weare witnesses to an incredible boomerangin history.

In order to prove it, we set out theprocess, from a chronological angle:

1. The Bible, the undeclaredConstitution of the Jewish people,

established the basic principles ofhuman rights, and with its TenCommandants, established the funda-mental laws of behaviour for thehuman being, not only for the Jewsbut for the entire world.

2. The English Puritans adopted theseBiblical principles as proper and tookthem to America, where they appliedthem in their Body of Liberties in1641.

3. Following this route, the same prin-ciples later constituted importantparts of the basic documents ofAmerican democracy, and afterwardspropelled by the winds of history,

The International Association ofJewish Lawyers and Jurists

welcomes the participants to the

10th International Congressof the Association

to be convened in Jerusalem and Tel-Aviv between 26-31 December 1995.

We look forward to a successful congress andwish our visitors an enjoyable stay in Israel.

No. 7December 1995

40

In the last issue of JUSTICE Mr. Benasuly reviewed the initiatives leadingto the new 1995 Basic Law concerning the crime of genocide. In this notehe brings us up to date on the latest developments in the movement toreform the Spanish Criminal Code.

In my article published in Issue No. 6 of JUSTICE I explainedthat the Spanish Parliament considered two proposals for reform:

* A Basic law which modified and added sections to theCriminal Code, relating to racism, xenophobia and anti-Semitism (including denial of the Holocaust). This law cameinto force on 12.5.1995.

* A government proposal for a general reform of the CriminalCode, including sections relating to anti-Semitism, denial ofthe Holocaust, etc.

On 23 November 1995, the Spanish Parliament adopted thenew Penal Code which came into effect the following day uponpublication in the Official Gazette.

The new Code replaced the law of May 1995.The main provisions of the law which are of interest to the

Jewish community are as follows:

* Section 22(4) - Under this section the commission of a crimeinter alia for racist or anti-Semitic motives, or because of theideology, religion or beliefs of the victim, the victimÕsethnic, racial or national affiliation, sex, or sexual orienta-

tion, is deemed to be an aggravating circumstance. As in thelaw of 12.5.1995 there is an express reference in this provi-sion to Òanti-SemitismÓ.

* Section 510(0) - This section provides for the offence ofprovocation to discrimination, hate, or violence againstgroups or associations for racist or anti-Semitic motives. Aperson committing this offence is liable to imprisonment for1-3 years, plus a fine. The same punishment is provided forthe dissemination of information which is offensive togroups or associations for the same reasons.

* Section 607 - Denial of the Holocaust. Dissemination by anymeans of ideas or doctrines which deny or justify the crimesdetailed in the previous section (i.e., the crime of genocide)or purport to rehabilitate regimes or institutions which advo-cate these crimes, is an offence which carries a liability toimprisonment of 1-2 years.

In addition to race and ethnicity, religion has now been addedas an aggravating circumstance in the commission of a crime.This has been a very important victory for the Jewish commu-nity. The Commission of the Jewish Organizations in Spain hasnow finished its work and is disbanded, however, Adv. Benasulyhas undertaken to personally continue his work against anti-Semitism, denial of Holocaust, racism and discrimination inSpain, not only in terms of amending the existing law but also inthe field of education and otherwise. The Association congrat-ulates Adv. Benasuly on his contribution to the reformsmentioned here which are of great importance to the Jewishcommunity.

Alberto Benasuly is the Coordinator of the Commission of the JewishOrganizations in Spain for the Reform of the Criminal Code and is a memberof our Association.

Spanish ParliamentRevises

the Criminal Code

Alberto Benasuly

December 1995No. 7

41

Mr. Jonathan Lewis is an English Solicitor specialising in national andinternational insolvency and corporate rescue work, and is the Vice-Chairmanof the U.K. Branch of the Association. This article is extracted from a morecomprehensive article by the author, from whom a copy, and references to thequotations in this article, may be obtained.

either a borrower nor a lender be. This was part ofthe famous advice given in ShakespeareÕs Hamlet byPolonius to his son Laertes on the eve of his depar-ture from Denmark. This might have been wisecounsel; but, had it been universally applied - as, in

the medieval Christian world it effectively was - credit wouldhave been unavailable and economies would have stagnated.Had Shylock, in The Merchant of Venice, been instructing hisdaughter Jessica in Jewish Law on the subject, he would haveput it rather differently. ÒNeither a careless borrower nor a non-repayer beÓ is how he might have expressed it. In even the mostrudimentary society, credit is essential. How else can a manacquire land, or flocks, or goods, or a vocational training, or abusiness, or a home? A man must borrow, and may do so,responsibly. And he must repay his debts. If debtors do notrepay, creditors will not lend, and credit will dry up. A pointmay come at which a debtorÕs circumstances prevent him fromrepaying. But he still remains a debtor to the Almighty, fromwhom all material things derive. If he does not endeavour torepay one day, he is a rasha - an evil person.

The Prevention of InsolvencyPrevention is better than cure, in every area of life. So, too,

with insolvency. The Torah speaks about the thief who is unableto repay his victims (Shemot, 22,1-2). This may be its only refer-ence to the state of insolvency. But the concept of prevention ofinsolvency is rooted in Torah. ÒWhen you lend money to any ofMy people, to the poor who are with you, you are not to be tohim as a creditor, and you are not to lay interest upon himÓ(Shemot, 22, 24). There is a positive duty to lend money to a

fellow Jew whoneeds it. This is anact not of tzedakah- charity - which isdirected at thepoor, but of chesed- lovingkindness -which is directed atrich and poor alike.As Dr. MeirTamari has written,Òto the poor personthe interest-freeloan represents a chance to establish himself in a craft or busi-ness, thus breaking the cycle of poverty. In the case of the rich,the interest-free loan represents a form of assistance duringperiods of extreme liquidity problems, thus preventing bank-ruptcyÓ. So it is that interest-free loans have always been animportant part of Jewish communal structures.

Many societies have faced the problems of the poverty cycle.The Torah offered a solution. ÒAt the end of seven years you areto make a release. And this is the manner of the release: everycreditor is to release from his hand the demand for paymentwhich he has the right to demand from his neighbour, he is notto exact payment from his neighbour and his brother, for it ispronounced a release to the LordÓ (Devarim, 15, 1-2). The lawof Shemittah - the sabbatical year - acts as a statute of limitationon bankruptcy for the poor debtor, enabling him to discharge hisliability for debts and to start life anew, without the fear that hisfuture earnings will be seized by his former creditors. So it wasthat the shemittah of debts - Shemittah Kesafim - was over timeextended by the Rabbis to every land.

ÒBeware that there be not a base thought in your heart, sayingÔthe seventh year, the year of release, is at handÕ, and your eye beevil against your needy brother and you give him nothingÓ(Devarim, 15,9).

Neither a Borrower nor a Lender be

Jonathan M. Lewis

N

JEWISH LAW

No. 7December 1995

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This, of course, was exactly what happened. The bold answerwas HillelÕs famous Prosbul - a declaration by the creditor trans-ferring to the Court the right to collect his debt. It was, in effect,the transformation of private debts into public debts, to preventtheir forfeiture whilst entrusting to a Beth Din the responsibilityfor treading the path between justice and mercy in deciding ifand when to collect the debt. As the Rosh wrote, many centurieslater, in Spain, in a famous Responsum (80, 8) Òour sages wereextremely concerned not to shut the door for future borrowersÓ.

The Ethics of InsolvencyIf the door was not to be shut for future borrowers, nor should

it be shut for future lenders. If it was, the economic systemwould equally collapse. If creditors were to be obliged to makeloans to poor people, and to do so without interest, and if everyseven years their right to repayment was to be waived, or at leasttransferred out of their control, they must be entitled to look toborrowers to treat their obligations seriously. To take advantageof a climate so favourable to borrowers was wicked. So it wasthat Òthe wicked man borrows and does not repay, but the right-eous deals graciously and givesÓ (Psalms, 37,21). In the famousdiscussion in Pirke Aboth (2,14), the Rabbis discussed the goodway to which a man should adhere, and the evil way which heshould avoid. To the first question, Rabbi Simeon replied thatthe good man was Òhe who foresees the eventÓ. Seemingly hehad in mind the irresponsible borrower; for, when he came toanswer the second question, as to the evil way, he cited thequotation from the Psalms in censoring the man Òwho borrowsand does not payÓ.

In our own time, Samson Raphael Hirsch interpreted SimeonÕsanswer in terms of a social compact between man and theAlmighty. ÒWhatever we receive from this world - and indeedthe entire Universe makes countless contributions to everybreath we take on earth - is only a loan granted us to help usstrive for and bring about those goals by means of which weadvance the welfare of G-dÕs world in accordance with His Willas revealed to us in His Law. No one exists solely for himselfand the greater the loan he has been granted, the greater his obli-gation and the sum total of achievement that may be expected ofhim in return.Ó

Striking the Balance Every legal system has to strike a balance between the inter-

ests of creditors and those of debtors. Inevitably the insolvency

of the debtor ultimately renders them irreconcilable. Verybroadly speaking, insolvency systems in the Old World soughtto protect creditors and to penalise debtors. The common law ofEngland entitled a creditor to seize the assets of his debtor, or toseize his person and detain him in prison, potentially indef-initely, at the creditorÕs pleasure. The DebtorsÕ Prison inEngland survived until the 19th century. English andCommonwealth legal systems may still be said broadly to favourthe protection of the creditor over the rehabilitation of thedebtor. The position is otherwise in the New World. Immigrantswent there for many reasons; half of the Founding Fathers,according to one quip, went to America to escape their creditors.So it was natural that the land of the fresh start should facilitatethe rehabilitation of the debtor, whilst circumscribing the activ-ities of those professional lenders, the banks.

Especially under the stimulus of the current recession, manyessentially pro-creditor legal systems are today seeking ways tobecome more accommodating to the need to rehabilitate debtors,whilst many of the more clearly pro-debtor systems are seekingto restrain the excesses and abuses which they permit to unprin-cipled debtors. So, in a contemporary climate which is broadlyleaning towards the protection and rehabilitation of debtors, theemphasis placed by Jewish Law on the rights of creditors mayseem anachronistic.Yet so, too, may the protection afforded tothe debtor, for his livelihood and even his self respect.

Limitations Upon Taking and Enforcing SecurityMuch of Jewish Law was consolidated, by Maimonides

(1135-1204) in the Mishneh Torah and by Joseph Caro (1488-1575) in the Shulkhan Arukh, from which many of the followingstatements derive.

Jewish Law limits the security which a lender may acceptfrom his borrower. He may not accept the means of a manÕs live-lihood: Òno man shall take the mill or the upper millstone topledge, for he takes a manÕs life to pledgeÓ; Òa team of ploughoxenÓ may not be taken. Nor may Òutensils which are used in thepreparation of food, such as a mill, a wooden kneading trough, akettle used for cooking, a slaughtererÕs knife, and the likeÓ.Security may not be taken from a widow, whether she be poor orrich; if taken, it must be returned. The debtorÕs garments must bereturned to him at sunset.

At the same time, Jewish Law imposes strict limits upon theaction which an unpaid creditor may take to recover his debt. Hemay not press the debtor when he knows that the debtor is

December 1995No. 7

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unable to pay. He may distrain upon the property of his debtoronly through the court. He must Òreturn the pledge to the debtorat the time when he needs it, if the debtor is an indigent man inneed of things taken as a pledge. The creditor must return to thedebtor the pillow at night that he may sleep on it, and the ploughduring the day that he may do his work with it.Ó ÒThe creditormust return to the debtor in the daytime articles that are usedduring the day and at night articles that are used during the night.If there are two utensils in his hands he keeps one and returns theother.Ó As compensation to the creditor, the pledged articles areexempt from the operation of the Shemittah year, and becomeavailable to the creditor upon the debtorÕs death. If the pledgedarticle is something which is needed by the debtor, the creditorÕsobligation to return it subsists indefinitely.

The Position of the Insolvent DebtorA man is obliged to repay his debts. So, if he claims that he

cannot fulfil this obligation, the Beth Din is required to valueand sell all of his assets, including expensive personal belong-ings and those of his wife and family. The debtor is left with theminimum requirements of a person who is just above the povertyline. The debtor must bring all of his moveable propertyÒwithout leaving even a single needleÓ. He is allowed food forthirty days, suitable clothing which will last him for twelvemonths, bedding, shoes and religious objects. If he is acraftsman, he may retain his basic tools. Some authorities permita scholar to retain his books. At the beginning of the 19thcentury, Moses Sofer permitted a shopkeeper to retain his stock,in order to preserve his livelihood. The concept is an Òarrange-mentÓ for the benefit of poor debtors (siddur le-vaÕal hov), underwhich an exclusion of certain property from the reach of cred-itors (mesaderin le-vaÕal hov) ensures that the debtor is left witha ÒshredÓ (shareyd) or ÒremnantÓ of his property.

But the responsibility for supporting the debtor then becomesthat of the whole community. The care of the poor and needy isfinanced through communal taxation. Every member of thecommunity must bear his share, including the bankruptÕs cred-itors. So, ironically, a wealthy man who is owed only a modestsum by his debtor may find, if he is instrumental in bringingabout the debtorÕs insolvency, that, quite apart from recovernglittle or nothing of his debt, he actually has to bear a tax liabilityto support his debtor which is far greater than the debt itself.

Normally there are strict limits on the amount of charity that apoor man may be given from the community purse: Òtwo meals a

day, a pallet to sleep on and some sort of housingÓ. But, in thecase of the failed businessman, Jewish Law recognises that hisproblems will be not only financial but also social and psycho-logical. So it holds that, where a rich man becomes poor, thecommunity is required to provide him with everything to whichhis lifestyle had accustomed him. ÒEven if it had been his wontto ride a horse, with a manservant running in front of him, andhe has now become poor and has lost his possessions, one mustbuy him a horse to ride and a manservant to run before him, as itis said, ÒSufficient for his need in that which he wantethÓ(Devarim, 15,8). You are thus obligated to fill his want; you arenot, however, obligated to restore his wealthÓ.

Responsa and Takkanot The Responsa literature deals with all aspects of life,

including, inevitably, matters commercial. Within communities,local business customs sometimes developed; and yet trans-actions were sometimes agreed and documented in ways whichdid not entirely follow these customs. One such situation wasaddressed by Rabbi Asher Ben Yehiel (the Rosh), writing(Responsa, 80,8)in Spain in the early part of the fourteenthcentury. A creditor held the debtorÕs house as security on thedocumented contractual basis that he could enforce his claimagainst the security without the debtor being entitled to have thevalue of the property assessed by a Beth Din and established byauction, as was otherwise the local custom. The Rosh found thatin Sephardic Spain - perhaps by contrast with his nativeGermany - contractual documents were regarded as giving wayto the custom of the city, unless that custom itself conflictedwith traditional sources. He therefore ruled that, despite theterms of the contract, the value of the property must be evalu-ated, and the property auctioned, in order to protect the debtorfrom its sale at an undervalue. However he ruled that this mustbe done immediately, even though the value of the propertymight rise over time, in order not to deny the creditor the imme-diate recourse to the debtorÕs assets for which he had bargainedand thus not to discourage lenders from making loans to peoplewho needed them. As to the order of application of the debtorÕsassets, he held that recourse must be had firstly, if it was avail-able, to money; then to moveables; and only then to realproperty, or at least to as much of it as was necessary to satisfythe debt, even though the value of the property might at thatparticular time have fallen.

At various periods, and in various places, economic crises led

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to an increase in cases of insolvency, and of communal enact-ments - takkanot - to deal with them. Takkanot are one of thelegal sources for the development of Jewish Law. They arerulings enacted to supplement the Law, often within a givencommunity. Over time, some acquired widespread application (afamous example being Rabbi GershomÕs ban on polygamy);others lapsed with the passage of time, or disappeared with thecommunity itself.

Takkanot were mostly instituted by the Halachic scholars, but,particularly from the tenth century, many derive from enact-ments by the community through its leaders. Many of theseenactments addressed issues of insolvency and, specifically, theissue of imprisonment for debt, because of their close connectionwith the social and economic conditions of the community.

Questions arose as to the extent to which the takkanot of onecommunity or jurisdiction should be followed elsewhere.Writing (Responsa, Hoshen Mishpat, 55) in Hungary in 1836,the Hatam Sopher was asked to rule whether a supplier who hadsold merchandise on credit to a person who had died was entitledto recover his merchandise in priority to the deceasedÕs othercreditors. The Council of the Four Lands (which were GreaterPoland, Lesser Poland, Russia and Lithuania, and did not includeHungary) had issued a takkanah directed against fraudsters whoobtained goods on credit and then disappeared with them, to theeffect that the supplier was entitled to recover his goods inpriority to the claims of other creditors. The Hatam Sopher heldthat this takkanah should not be followed, both because thecircumstances which it envisaged were quite different to those inthe present case (an argument obviously not confined totakkanot) and specifically because Hungary was beyond thejurisdiction of the Council of the Four Lands (even though, inter-estingly, the Council had itself been dissolved in 1764).

The Distribution of Insolvent EstatesWhere the debtorÕs property includes land, creditors whose

debt is evidenced by a written obligation - a shetar or deed -have recourse to that land in the sequence in which their lienswere created. This concept is similar to the order of prioritieswhich exists in modern legal systems in relation to specificallycharged assets (whether or not they happen to be land.)

In the many periods and many societies in which Jews wereprohibited from owning land, their property inevitablycomprised only moveables. So Jewish Law had to develop asystem for distributing the assets of insolvent debtors amongsttheir creditors.

Modern western legal systems essentially follow the principleof proportionality: that the estate is divided between creditors ofthe same class in proportion to their claims, so that all receivethe same calculated percentage of their debts. Jewish Lawadopted a different approach.

The line of thinking began in a Talmudic discussion. A mandies leaving three wives. Their ketuboth entitle them to differentsums - in the examples 100, 200 and 300 zuzim respectively. Theclaims against the estate thus total 600 zuzim. The estate is insuf-ficient to meet their claims - in successive examples the estatecomprises 100, 200 and 300 zuzim. The debate turns not so muchupon issues of insolvency as such as upon the question of theproportions of the estate to which each wife is entitled to layclaim and the effect of renunciations by a wife of her right toclaim a proportion of the estate. The significance of the discus-sion in the present context is that underlying it is a presumptionnot of proportionality in the treatment of creditors but ofequality, in the sense that each receives the same amount. Wherethe estate is 100 zuzim, the Mishnah rules that it is dividedequally between the three claimants, despite the disproportion oftheir claims. The Gemara, though discussing possible alternativesolutions to the cases where the estate is 200 and 300 zuzimrespectively, does not question this ruling in relation to the 100zuzim estate at all. And at the end of a complex discussion of thedistribution of the 200 and 300 zuzim estates, Rabbi Judah thePrince says that he does not agree with the result - which is oneof inequality between the three wives - and that, quite simply,the three wives should take equal shares. He clearly regards thisas so obvious as not to need any explanatory reasoning. So hegoes so far as to disregard issues of legal entitlement and renun-ciation in favour of the principle of equality.

The argument is developed, into the area of insolvency per se,by Maimonides in the Mishneh Torah and by Joseph Caro in theShulkhan Arukh. The latter gives two examples:

1. The fund is 300 dinars, and there are three creditors withclaims for 300, 200 and 100 dinars respectively. Eachreceives one third of the fund, i.e. 100 dinars. This is effec-tively the Talmudic example above.

2. The fund is between 500 and 600 dinars, and there are thesame three creditors for 300, 200 and 100 dinars respec-tively. Each claimant first receives an amount which is equalto the smallest claim (i.e. 100 X 3 = 300). Of the balance(between 200 and 300 dinars), each of the two remaining

December 1995No. 7

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creditors receives an amount equal to the smallest claim (i.e.100 x 2 = 200). The remainder (up to 100 dinars) goes to thehighest claimant.

The Mishneh Torah gives an almost identical set of examples.ÒAnd in this manner,Ó concludes the Rambam, Òthe division ismade between the creditors when they all come at the same timeto obtain satisfaction, even if they be one hundred in number.Ó

So the principle is one of simple equality in the amountreceived by creditors. All creditors receive an equal share of thefund, irrespective of the amount of their claim. The only qual-ification is that, self evidently, a creditor cannot receive morethan the amount of his debt.

Amongst legal systems, this method of distribution is unusual,and perhaps unique. It treats creditors equitably, not in the senseof proportionately, but in the sense that they take equal shares ofthe estate. Interestingly, Maimonides ends his discussion withthe comment: ÒBut some of the Geonim have taught that divisionof available property is made among the creditors in a ratio equalto that of their respective debtsÓ. But this, to us more familiar,principle of proportionality seemingly remained a minority view,although the authorities were divided on the issue.

The assumption underlying this system may simply be thefairness of absolute equality. Alternatively it may be that thesmaller is a manÕs claim, the more significant it is to hisfinances, and, conversely, that the larger is his claim, the betterable is he to absorb the loss of a larger proportion of it. Themethod of distribution emphasises both the Jewish concept ofsocial justice - that society should be so structured as to protectits economically weaker members - and the desirability ofprudence in lending - that a man should Òsee the eventÓ andshould not lend to a borrower who may not be a good risk morethan he can afford to lose.

To modern western thinking, this method of distribution isstrange, in the sense not only of unfamiliar but also of peculiar.But it bears thoughtful consideration. As a practising insolvencylawyer, the writer may perhaps venture to confirm the accuracyof the generalisation that ÒsmallÓ creditors are greatly disad-vantaged by even a ÒsmallÓ bad debt, for which say a 10%distribution in an insolvency is little economic compensation,whilst ÒlargeÓ creditors find the same, say, 10% distribution ofcorrespondingly little economic value. Obviously, the higher thepercentage distribution, the less true is the generalisation. But, apriori, distributions in insolvencies are generally rather closer tothe 0% end of the scale than the 100%! So this system of distri-

bution may in fact tend to protect the ÒsmallÓ creditors withoutcorrespondingly prejudicing their ÒlargerÓ counterparts.

The Absence of a Bankruptcy ProcedureIn modern secular legal systems, insolvency procedures have

two functions: to distribute the available assets of the debtorbetween his creditors, and to provide a means of discharging thedebtor from his debts. The distribution of assets in Jewish Lawhas been discussed above. As to the release of the debtor fromhis debts, Jewish Law has no such procedure Òin bankruptcyÓ. InBiblical times, and subsequently, the septennial release of debtsdoubtless effectively achieved this object. As times and circum-stances changed and the septennial release of debts ceased to beavailable, some accommodation with governing civil legalsystems - dina dÕmalkhuta - became necessary. In medievalSpain, for example, a practice developed, in accordance with theprinciple of dina dÕmalkhuta dina, of giving effect to govern-mental ordinances which stayed collection of a debt until othercreditors had an opportunity to present themselves and theirclaims. The custom was to proclaim publicly that all creditorswho failed to present their claims by a certain day would losetheir rights. Generally, too, the Rabbis recognised that civil legalsystems were obliged to provide a mechanism - a bankruptcyprocedure - to enable insolvent debtors to be released from theirobligations to their creditors, and accepted this, under the prin-ciple of dina dÕmalkhuta dina. But debtors remained under amoral obligation to repay their debts one day if they could, Òinorder to be clean before G-d and menÓ. In the end, ÒThe wickedman borrows and does not repayÓ.

In ConclusionAs practising lawyers, we wrestle all the time with what seem

to be very contemporary problems. But, if we embark on eventhe briefest voyage through the sea of Torah, Talmud, Codes andResponsa, it is difficult not to be surprised at how many contem-porary issues were debated thousands of years ago. Perhapsthere is, after all, nothing new under the sun.

Modern day, secular, legal systems, in which we all practise,have tended in large measure to divorce law from morality.Insolvency questions are seen as issues of commerce, not ofmorality. For a religious legal system, such as Halacha, such adistinction is not meaningful. As in every area of life, the aspira-tion of Halacha is to do, in the words of Devarim, 6,18, ÒWhat isright and good in the eyes of the LordÓ.

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Alice Miller v. Minister of Defence, the Chief of Staff of theIDF and others

H.C.J. 4541/94. Before Justices Matza, Kedmi, Strasburg-Cohen, Tal and Dorner sitting in the High Court of Justice. Judgment delivered on 8.11.1995.

PrecisThe question considered here was whether the IDF policy not

to enlist female soldiers as pilots was void for sexual discrimina-tion. By a majority of three to two the High Court of Justice heldthat the decision was void and that the budgetary, planning andlogistic considerations underlying the IDF policy could beneutralized by appropriate expenditures. Accordingly thePetition was upheld and the IDF was ordered to allow thePetitioner to present herself for testing as an aircrew candidate.

JudgmentJustice Eliahu Matza

The Defence Service Law (Consolidated Version)-1986 (ÒtheLawÓ) discriminates between men and women in three areasonly: length of service, reserve service, circumstances of releasefrom service. The Law does not draw a distinction between thenature of the service of men and women, such distinctions arefound in the orders issued by the Army Command. The list ofmilitary professions available to women exclude fighting units,and a female soldier may only join such a unit by volunteering.This provision is still on the books however the statutory regu-lations behind it have been repealed by the Knesset.

The PetitionerÕs application to enlist as air crew was denied bythe Israel Air Force on the grounds that women were not to beplaced in fighting units. The Petitioner argued that the blanketrefusal of the IDF to permit her to apply for the training coursewas a breach of the fundamental right to equality between thesexes, and a negation of her right to an equal opportunity toserve in the army as a pilot if found to possess the necessaryqualifications. Additionally, the Petitioner argued that this policy

FROM THE SUPREME COURT OF ISRAEL

posed an obstacle to women seeking senior positions in the airforce and army, and later in life in Israeli society. The Petitionerdid not demand complete integration of women into all units buton the other hand opposed their blanket rejection. The IDFlimited its opposition to the Petition to the specific issue at hand,namely, enlistment to pilots courses, but justified its policy onoperational planning grounds, e.g., that by law female soldiersserve less time than male soldiers both in the regular army and inthe reserve service with the result that the army would fail toobtain the maximum benefit from the enormous cost of trainingif the pilot was a woman; and female soldiers would be restrictedin their service if they became pregnant.

Justice Maza found that there are relevant differences betweenthe sexes which may justify distinctions being drawn. But inorder to achieve substantive equality it is necessary to assesssuch relevance bearing in mind the particular purpose whichrequires such distinctions being drawn; in other words, the nexusrequired between the special characteristics of one sex, whichare absent in the other, and the purpose for which it is permis-sible to prefer one to the other, must be direct and concrete.

In providing for the duty and conditions of military service,the Law distinguishes between men and women. But this isintended to alleviate the position of women. The army must takethis into account when planning its manpower array, but itcannot be a reason for allowing discrimination against femalesoldiers. Moreover the Law is silent as to the allocation ofspecific posts to women or precluding them from others. In theabsence of express provision to the contrary, the Law must beconstrued as respecting the right to equality between the sexesand even helping it to materialize.

This approach is strengthened by the enactment of the BasicLaw: Human Dignity and Freedom, which has raised the norma-tive status of the principle of equality to a constitutional Òsupra-statutoryÓ level.

It is uncontroverted that the capabilities needed to fly anaircraft may be found in equal levels in women and in men.Women pilots have been successfully integrated into the airforces of other countries. Recently, the issue of the integration ofwomen pilots in the US Air Force in fighting units has beenexamined by a presidential commission set up to look into the

Distinction or Discriminationin the Israel Air Force

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issue of women joining combat units. By a majority of eight toseven the commission recommended against assigning women toair force combat units. But the minority opinion has prevailedand in April 1993, Defence Secretary Les Aspin ordered therestriction to be removed.

In Israel too, women pilots served in the Air Force, forexample, as transport pilots during Operation Kadesh. Thechange in policy has been attributed to budgetary limitations.The current budgetary objections to the Petition have relativelylittle weight where the Petition is for the enforcement of a basicright as in the instant case. The main objection of principleraised by the Commander of the Air Force, however, is on long-term planning grounds, particularly, the shorter service of femalesoldiers, their limited reserve duty obligations, and the fact thateven if they volunteer for extended service they can retract thatundertaking without any legal recourse on the part of the AirForce. These fears are unfounded. As a rule, it is proper toassume that a person who takes upon himself an undertaking iswilling and able to fulfill it. Even if the average contribution offemale pilots - from the point of view of length and continuity ofservice - will be less than that of male pilots, this is a differencewhich ensues from her being a woman. This difference is not afault and can be factored into long term operational planning.

So long as the Air Force does not allow the trial integration offemales into pilots courses, and does not operate a routine andaccurate follow-up of their progress in their courses and units,we will never be able to know whether in the special circum-stances prevailing in Israel, women can successfully integrateinto air crew. Within the framework of the trial there would beno fault in setting quotas for female pilots. Quotas, by nature, donot allow equality, but this is not the case where they are set aspart of a trial aimed at advancing equality without at the sametime prejudicing vital security interests.

The Court is not accustomed to intervene in professional-planning decisions of the military authorities. But it has neverbeen doubted that the decisions and orders of the army, whichreflect the policy of the army, are subject to the judicial reviewof this Court. In my view, a policy which involves a breach of abasic right provides a clear ground for the intervention of thecourt. Violation of the principle of equality, as a result ofdiscrimination on grounds of sex, is a clear example of a casewhich justifies and requires intervention.

Justice Yaakov Kedmi (Dissenting)Regrettably, I cannot agree with the judgment of Justice

Matza, on the following grounds:

1. In my view, decisions of principle by those responsible fornational security, should be attributed a high level of reason-ableness; with the result that those opposing it have a heavyburden of persuasion.

2. I would hesitate to intervene in such decisions as long as Iam not convinced that they are extremely unreasonable, arbi-trary or made in bad faith.

3. The objection to the Petition is based on the workingassumption that female pilots would not be able to meet allthe Air ForceÕs expectations regarding length of service andmaintaining operational capacity over the course of years. Ido not believe that I have the qualifications to judge thereasonableness of this assumption and I would not ease theburden of responsibility for national security lying on theCommander of the Air Force by forcing upon him a courseof conduct which he opposes.

4. We cannot learn from the experience of other countriesbecause our defence needs are completely different.ÒMistakesÓ in this connection may have far reaching results.

5. There is no ÒdiscriminationÓ here but a ÒdistinctionÓ basedon routine defence needs.

At the same time, I agree with Justice Matza that it would beproper to test the fears underlying the military authorityÕs deci-sion, and it would be right to take the first step in this directionas soon as defence circumstances permit.

Justice Tova Strasburg-CohenI would join the judgment of my colleague Justice Matza.A policy of inequality has grown out of the distinctions drawn

by the Defence Service Law between men and women in rela-tion to service conditions. In my opinion, it would be wrong toperpetuate the distinctions created by the Law, through discrim-ination. Some would regard the provisions of the Law as beingpaternalistic towards women who are regarded as weaker, morefragile, in need of defence and whose destiny is to raise a family.Others would argue that the Law benefits women by easing theirservice conditions. Either way, the distinction drawn by the Lawis a fact which is not under examination by the Court, but ratherthe starting point for the policy not to allow women pilots.

In Justice MatzaÕs view the RespondentÕs position is unaccept-able because the distinction between the conditions of service ofthe two sexes is not relevant and therefore the discrimination iswrongful. I, also believe the pilotÕs course should be open towomen but think that the distinction is relevant and causes realdifficulties. The grounds for refusing women pilots are substan-

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tive and not arbitrary, and prima facie the discrimination istherefore not wrongful. But this is only prima facie the case, as itis not sufficient for the distinction to be relevant to put an end tothe allegation of discrimination; relevant distinctions which canbe rectified or neutralized in order to achieve equality, should berectified or neutralized, although not at any price.

We are not considering positive discrimination intended toopen doors to groups previously excluded, even if this group isless suitable than others to function in a certain area. In theinstant case, we are considering neutralizing the distinctionsbetween persons possessing equivalent abilities by allocatingresources which allow an equal starting point for two personsequally suitable to fulfill the same function, save that character-istics which do not affect the substance of the function, impedethe path of one of them.

The instant case primarily concerns cultural, social and ethicalissues. The status of the principle of equality as a supreme valuein Israeli society, has a place of honour in case law and legalliterature. A society which respects its basic values and the basicrights of its members must be willing to pay a reasonable priceso that the principle of equality will be put into practice.

With regard to the clash between the principle of equality andthe principle of national security as an outcome of militaryneeds, the latter principle carries greater weight only if there is anear certainty of real injury and real damage to the securityof the state. The Air Force policy relating to the enlistment offemale pilots does not meet this test. Nor does the policy meetthe easier test of a reasonable possibility of real damage. Thedifficulties pointed to by the Air Force - are in part economicand in part based on speculations as to the future. Even the AirForce does not allege that real damage will be caused to thesecurity of the state by the enlistment of female pilots.Accordingly, the courses should be opened to women with theappropriate qualifications in order to enable them to realize theirbasic right to equality.

Justice Zvi Tal (Dissenting)I join the Opinion of my brother Justice Kedmi and agree that

we have before us ÒdistinctionÓ and not ÒdiscriminationÓ. Hadthe IDF an unlimited budget it would have been possible to holdthat it should pay the price for the principle of equality betweenmen and women. In reality the defence budget is limited. Thus,the huge expense needed to achieve equality will by necessity beon account of other vital security needs. Human safety is also abasic right (Section 4 of the Basic Law: Human Dignity andFreedom), and as such it supersedes the principle of equality.

Budgetary constraints are also reasonable considerations withinthe framework of the theory of Òrelevant distinctionsÓ. There is areasonable risk that the reserve duty of a women will be cutshort because of pregnancy, with the result that the enormousexpense of qualifying a female pilot would be worthwhile foronly a short time. From a practical point of view the investmentwould be lost.

From the above it is clear that we are not considering discrim-ination between equal parties but distinctions between unequalones. Like Justice Kedmi, I would leave the Air Force commandto decide upon a trial integration of women pilots at a time andin circumstances which will not harm national defence needs.

Justice Dalia DornerThis Petition concerns yardsticks for translating the distinction

between men and women into legal norms. These yardsticks canand should be just. Women are different from men. They arelimited by virtue of their natural functions - pregnancy, birth,nursing. These differences were at the root of the division offunctions between the genders in primitive human society, whichled to the patriarchal family. But the division has remained evenwhen economic and technological developments have meant thatthere is no objective reason for it.

Thus, at the end of the 19th Century, the English poet AlfredTennyson wrote:

ÒMan for the field and woman for the hearthMan for the sword and for the needle sheMan with the head and woman with the heartMan to command and woman to obeyAll else confusion.Ó(The Princess, 2nd Song, 5, 427).

In Israel, as in other democratic countries, the rule is thatwomen should not be discriminated against by reason of theirsex; see, for example, the Declaration of Independence (TheState of Israel ... will ensure complete equality of social andpolitical rights to all its inhabitants irrespective of religion, raceor sexÓ); the Equal Rights for Women Law - 1951; the EqualWork Opportunities Law - 1988; the Basic Law: Human Dignityand Freedom, and others.

While the Basic Law: Human Dignity and Freedom was notintended to provide express constitutional protection for the prin-ciple of general equality, it was intended to protect a personagainst humiliation. Humiliation violates the human dignity of aperson. Not every infringement of the principle of equality is a

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violation of human dignity, but discrimination on the basis ofgroup affiliation, including gender, is such a violation.

As Professor Rhode wrote:

ÒAmerican equal-protection analysis has developed largelywithin an Aristotelian tradition that defines equality as similartreatment for those similarly situated. Under this approach,discrimination presents no legal difficulties if the groups differ inways relevant to a valid regulatory objective... Challenges togender classifications underscored the theoretical and practicallimitations of this approach... contemporary gender-discrimination analysis has presented difficulties along severaldimensions. At the most basic level, traditional approaches havefailed to generate coherent or convincing definitions of differ-ences. All too often, modern equal-protection law has treated asinherent and essential differences that are cultural and contin-gent. Sex-related characteristics have been both over and undervalued. In some cases, such as those involving occupationalrestrictions, courts have allowed biology to dictate destiny.Ó

The test in the instant case should be twofold: first, is the sexconsideration relevant, and second, if so, is taking it into accountjustified in the circumstances of the case.

Section 11 of the Basic Law requires all government author-ities to respect the rights established therein but does not providethe standards on the basis of which those rights will behonoured. In the US, the theory of Òthe level of scrutinyÓ hasbeen established to examine the importance of the social valuesunderlying the right. The Òminimal standardÓ from the point ofview of the restrictions placed on the authorities applies toactions (including laws) which violate economic rights. In such acase, a violation of a right will be found to be justified if ration-ally required to achieve a legitimate interest of the state. Themost severe standards (or Òstrict scrutinyÓ) relate to violations offundamental rights, such as freedom of speech, freedom ofmovement, etc. Only a compelling state interest will justify sucha violation. Classification according to sex, however, has beenregarded in the US as controversial although case law hasgranted it a ÒsuspectÓ classification, which requires applicationof ÒstrictÓ standards of scrutiny.

In Israel, we must apply the provisions of Section 8 of theBasic Law by analogy. Section 8 provides as follows:

ÒThere shall be no violation of rights under this Basic Lawexcept by a Law befitting the values of the State of Israel,enacted for a proper purpose, and to an extent no greater thanrequired, or by regulation enacted by virtue of express author-ization in such law.Ó

1. The fundamental rights of a person should not be restrictedexcept by express legislative provision.

2. Laws violating fundamental freedoms should be construednarrowly.

3. Laws should be construed on the assumption that they arenot intended to infringe the right to equality.

The power to discriminate against women must therefore beexpressly provided by law, and it is not sufficient to provide anauthority with discretion in that regard. Rather, as noted, theauthority must exercise its powers in such a way as to respectbasic human rights. The violation must accord with the values ofthe State of Israel and the violation of the right must be for aproper purpose. Most important, the violation must not exceedwhat is necessary.

The right to respect - which embraces the prohibition ondiscrimination against women - is one of the most importantbasic rights of a person. The humiliation of a woman by discrim-inating against her because of her sex injures her deeply.Moreover, at the root of the right lie a number of vital societalinterests. Consequently, the individual and social reasons under-lying the prohibition against discrimination requires theapplication of the stricter test of near certainty of grave danger.

In cases where the distinction between men and woman is arelevant consideration, a range of measures can be applied by theauthorities exercising their consequential discretion.

As Professor Mackinnon put it:

ÒUnder the sameness rubric, women are measured according tocorrespondence with man, their equality judged by proximity tohis measure. Under the difference rubric, women are measuredaccording to their lack of correspondence to man, their woman-hood judged by the distance from his measure. Gender neutralityis the male standard. The special protection rule is the femalestandard. Masculinity or maleness is the referent for bothÓ.(C.T. Mackinnon, Toward a Feminist Theory of the State (Mass,1989) 221).

In my view the solution lies in the intermediate model. Inorder to achieve equality between the sexes, consideration mustbe given to the special needs of women. The interest in ensuringtheir dignity and status on one hand, and the continued existenceof society and family life on the other, require, in so far aspossible, that women should not be prevented from achievingtheir potential and aspirations simply because of their naturalfunctions.

Abstract prepared by Adv. Rahel Rimon.

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