Two Wrongs Did Not Make a Right

Should there really be no differentiation between those Israeli citizens who willingly accept the obligations of citizenship and those who prefer not to do so?


By Moshe Arens

(A version of this column appeared in Haaretz on May 23, 2006.)

The High Court of Justice has recently handed down three controversial judgments – regarding the forcible removal of Israeli citizens from their homes, regarding the validity of the Tal Law exempting Orthodox youngsters from compulsory military service, and regarding the validity of the Citizenship Law passed by the Knesset. Since the subjects in question deal with the very basics of democratic governance, it does not require a trained legal mind to critically review the merits of the decisions that were made and the arguments put forward by some of the justices for or against the court’s majority opinions. Such an examination raises serious questions regarding the views of some of the justices on the court.

The principles in question are the obligations that Israeli citizens have to their country and the rights conferred upon them by virtue of being citizens of the State of Israel. When the Knesset passes laws that contravene these principles, we have a right to look to the High Court of Justice to invalidate such laws as being contrary to these basic principles.

Ten thousand law-abiding Israeli citizens were forcibly evicted from their homes last August, in clear violation of their basic rights, under a law passed by a majority of the Knesset. The members of the communities in question – Gush Katif, the settlements at the northern tip of the Gaza Strip and the settlements of northern Samaria – had over the years fulfilled the obligations of citizenship, from paying their taxes to serving in the Israel Defense Forces. They had settled in these areas with the encouragement of the Israeli government, had served as an example of agricultural pioneering, and during the recent years of Palestinian terror, had borne more than their share of sacrifice of life and limb. Now they were being evicted from their homes for no other reason than that they were Jews.

Is the meaning of the High Court’s judgment that the government, if backed by a majority of the Knesset, has the right to forcibly evict Israeli citizens – Jews or Arabs – from their homes by the thousands? The present government has obviously been encouraged to believe that it will be within its rights to in the future evict 70,000 to 100,000 citizens from their homes in Judea and Samaria, for the same reason, namely, that they are Jews. There is good reason to believe that future Israeli governments will be called upon to express the nation’s remorse for such barbaric acts, inconceivable in any democracy in this day and age, just as the U.S. government in time expressed its regret for the forced evacuation of 150,000 Japanese American citizens from the West Coast during World War II. The High Court of Justice failed in its duty in this case.

The Tal Law exempts Orthodox yeshiva students from the law of compulsory military service, which applies to all Jewish, Druze and Circassian youngsters. Thus they do not share the burden of the defense of their country with most of Israel’s citizens. Defense of the country against its enemies is the ultimate obligation of citizenship. This burden, obviously, must be shared by all. Although the exemption granted to Orthodox yeshiva students over the years was the result of an administrative decision by the defense minister, the Tal Law has given this release from the obligations of citizenship legislative sanction. How could the High Court of Justice give its approval to such a law, which runs counter to the basic principles of democratic governance – that where there is a need for compulsory military service, it be applied without discrimination and be universal in the full sense of the term? The High Court of Justice failed us for the second time.

And now comes the Citizenship Law – maybe not quite as clear-cut as the previous two cases, but nevertheless relevant to the basic values that presumably characterize our society. Do all citizens have the right to have their noncitizen spouses obtain Israeli citizenship and residence, or can there be exceptions to this practice? What if the spouses in question have no intention of accepting some of the obligations of Israeli citizenship? What if it is clear that they have no intention of serving in the IDF or having their children serve in the IDF? Should this seemingly elementary right be accorded to a Druze Israeli citizen, who has performed his compulsory military service and whose children will do the same, if he marries a Druze girl from Lebanon or Syria, but denied a Moslem Israeli citizen who does not serve in the IDF, if he marries a Moslem girl from Gaza?

Should there really be no differentiation between those Israeli citizens who willingly accept the obligations of citizenship and those who prefer not to do so? Should the settlers in Gush Katif, who have carried out the obligations of citizenship in an exemplary manner, be evicted from their homes, while those who have no intention of accepting some of these obligations are awarded Israeli citizenship? That is a question for our justices to ponder. But after rendering two faulty judgments, they did not get it right the third time, either.

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