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The real Israeli consensus

By Gideon Levy, Ha'aretz
Sunday, June 18, 2000

Where does the Israeli consensus reach its peak? What is it that induces right and left to behave identically? The unification of Jerusalem? Opposition to the return of the Palestinian refugees? Those are good answers, but the convergence of right and left. Whether the prime minister is named Ehud Barak or Benjamin Netanyahu and, surprisingly and depressingly, whether the justice minister is named Tzachi Hanegbi or Yossi Beilin, and whether the education minister happens to be Yossi Sarid or Yitzhak Levy, security, imagined or real, is king. Last week it emerged that the Barak government is just as willing as its predecessor to undercut the Supreme Court, the rule of law, international law and the principles of justice.

Last week the cabinet unanimously approved a bill on the "incarceration of belligerents who are not entitled to prisoner-of-war status." When the Knesset turns the bill into law, perhaps as early as this week, a thoroughly disgraceful piece of legislation will enter the law books under the aegis of a "left-wing" government. The press and public opinion, along with legal experts and intellectuals, are observing this development with bored indifference. No one dares intervene, for fear of being accused of scuttling the chances of bringing home the missing Air Force navigator Ron Arad.

Under the new law the state will be able to hold in detention - indefinitely and without judicial oversight - any person whom the chief of staff defines as "a belligerent who is not entitled to prisoner-of-war status." In other words, the chief of staff will henceforth have the power to imprison people without any limitation. A position paper issued by the human rights organization B'Tselem rightly notes: "If the law is passed, Israel will become the first country in the world in which the law permits the holding of hostages ... [which is] one of the principal characteristics of terrorist groups."

The Jewish brain comes up with new terminology. If international law recognizes two terms only - belligerent and civilian - Israel invents a third term: "a belligerent who is not entitled." Why? In order to go on holding the two "bargaining chips" named Abd el Karim Obeid and Mustafa Dirani who cannot be brought to trial for any wrongdoing, in order to sidestep the High Court of Justice, which effectively called for their release and in order not to give the furious Arad family a pretext to speak out.

The bill before the Knesset has it all: It is a hasty act of retroactive legislation that tramples the Geneva Convention, makes a mockery of international law and involves a very dangerous intermixing of governmental branches. It was only two months ago that Supreme Court President Aharon Barak wrote, in the judgment that brought about the release of the other Lebanese "bargaining chips": "The transition from the administrative detention [arrest without trial] of a person who represents a danger to state security, to the administrative detention of a person who does not represent a danger to state security is not a 'quantitative' transition. It is a 'qualitative' transition... So fundamental and deep is the infringement of freedom and dignity that it is not to be tolerated in a state that respects freedom and [human] dignity."

If some Israelis were once appalled at the thought that thousands of people were held for years in administrative detention in Israel, they can only look back fondly on that period. It was still possible then to appeal to the courts, whereas now the courts will be able to intervene only in regard to the status of the detainee but not in regard to the justification for the incarceration. How long will such a hostage remain in prison? The bill states: "Until the defense minister declares, in a writ signed by him, that the hostilities between the State of Israel and the belligerent force of which the detainee is a member have terminated."

Justifying the bill a few weeks ago, Education Minister Sarid asserted that Dirani and Obeid "are not tzadikim" (righteous men). That is no doubt true, but are we henceforth going to incarcerate without trial all those we think "are not righteous men"?

Israel is obliged to do everything in its power to alleviate the terrible suffering of the Arad family. But the passage of legislation that will allow people to be thrown into jail irrespective of their actions and without judicial oversight is too high a price to pay, even for a lofty goal, in a country that purports to be "the only democracy in the Middle East.


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