The following is an open letter sent by Israeli international law experts, some of whom are members of the Israeli Law Professors' Forum for Democracy.
October 9, 2023In the early morning hours of October 7, 2023, Hamas militants entered Israel. They intentionally killed hundreds of civilians. They also took dozens of hostages to the Gaza strip, including women, children, older persons and persons with disabilities.These actions constitute gross violations of international human rights law and humanitarian law, amounting to war crimes and crimes against humanity. We stress that all parties to an armed conflict must comply with norms of international law in general and the law of armed conflict in particular, including the prohibition on indiscriminate attacks and measures targeting civilians.The taking of hostages is a blatant violation of international law. We call for the immediate and unconditional release of all hostages. Pending their release, they are all entitled to be treated with humanity and respect. This includes the receipt of proper medical care and supply of essential medication for those who need it, and the provision of information regarding the hostages and means of communication with them. We call upon the international community, including all states and relevant international organizations to pressure those holding the hostages to release them all immediately.
The Israeli Law Professors’ Forum for Democracy, an ad hoc and voluntary group of experts on Israeli law and specifically Israeli public law, expresses its grave concern over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney general and civil service legal counsels, and to violate human rights. In this paper we address the expected harm to the rights of LGBTQ persons, resulting from the composition of the government and the appointments it has made, from the coalition agreements, from bills proposed by members of the coalition, and from the actions and statements made by the Government and its members. We conclude that the combined actions, obligations and legislative changes, undertaken by the government and the coalition is likely to cause grave harm to the rights of all LGBTQ persons in Israel and their families. In addition they carry real potential to harm the rights of heterosexual persons in Israel, and to cause an extremely severe regression in the rights of the LGBTQ community in Israel.
Key Points:
● The combined actions, obligations and legislative changes undertaken by the government and coalition may cause a fatal damage to the rights of all LGBTQ persons in Israel and their families. In addition they carry real potential to harm the rights of heterosexual persons in Israel, and to cause an extremely severe regression in the rights of the LGBTQ community in Israel.
● The legislative changes contemplated by the coalition, to allow discrimination on religious grounds of LGBTQ persons, may, if adopted, eliminate the legal protections for the rights of LGBTQ persons to equality and liberty in the public sphere; impair their autonomy; and impair their freedom from discrimination and from violation of human dignity in all areas of life: at home, in the public sphere, in commerce and consumerism, in leisure activities and more.
● The legislative change that would permit discrimination on grounds of religion may allow any business owner to refuse LGBTQ persons access to the business, either as clients or as employees, for example in order to attract homophobic clientele.
● The weakening of the Supreme Court through politicization of the appointment of judges and through annulment of effective judicial review may harm LGBTQ. Families, parental autonomy, the right to parenthood of LGBTQ persons and the rights of their children may be adversely affected, since the legal recognition of LGBTQ families in Israel is grounded almost entirely in judicial decisions.
● The weakening of judicial independence may cause grave harm especially to the rights of persons on the transgender spectrum, since the rights of these persons in core issues such as autonomy, legal recognition, parenthood, employment, health, discrimination in services and products and access to public spaces have been recognized and protected almost entirely by judicial decision.
● Expansion of the rabbinical courts’ jurisdiction is likely to cause harm to parents going through divorce following their coming out. It will also harm their children, since it will expand the reach of the law applied in rabbinical courts to additional families.
● The weakening of the Supreme Court’s authority to block discriminatory legislation and offer remedy to minority groups will cause particular harm to the rights of LGBTQ persons. In addition, the government’s intention to limit the activities of human rights organizations will harm the activity of civil society, which has always been an indispensable component in the campaign for equal rights for LGBTQ persons.
● The Prime Minister’s claim in his speech of 23 March 2023 that LGBTQ persons’ rights will not be harmed is a lie. The government's plans, and first amongst them the political takeover of the procedures for the selection of judges, will harm the rights of LGBTQ persons.
The Israeli Law Professors’ Forum for Democracy responds in this position paper to recent public criticism of the Supreme Court's alleged policy regarding asylum seekers living in Israel.
We show that:
· In practice, the Supreme Court has not intervened in the state’s immigration policy, and its ruling regarding asylum seekers was restricted to extreme cases of severe and disproportionate infringements upon basic human rights, rights which accrue not only to citizens but to all persons.
· The Supreme Court has limited its judicial review mainly to cases in which prolonged and sweeping deprivations of liberty were imposed on persons whom the state itself recognized as people who cannot be deported from Israel. The Court refrained from promoting an alternative policy to that of the legislature and government regarding the proper treatment of asylum seekers, leaving government authorities significant leeway to implement their policies.
Highlights of the position paper:
Following the violent altercations that took place among Eritrean asylum seekers on September 2, 2023, many members of the government and its supporters chose to blame the judgments and decisions of the Supreme Court for these events. Prime Minister Binyamin Netanyahu and other ministers claimed that the presence of "infiltrators" in Israel specifically in southern Tel Aviv results from the Court's intervention in laws that allowed for the detention of asylum seekers for long periods and in arrangements designed to allow their removal to a third country.
These claims are inaccurate. They reflect a disregard for the rules of international law that bind the state and appear to constitute an attempt by the government to attribute to the Court the failure of its own policy in dealing with Eritrean asylum seekers, most of whom have been present in Israel for some fifteen years.
This position paper presents five interrelated arguments, to provide an accurate account of the Supreme Court's policy concerning asylum seekers living in Israel:
A. We examine and reject the argument that the continued presence of asylum seekers in Israel is a direct result of the Supreme Court's intervention in the policy regarding their incarceration.
B. We examine and reject the claim that the Supreme Court has prevented the government from deporting asylum seekers, demonstrating that in practice, the Court has principally approved the policy of deporting asylum seekers to a third country.
C. We examine and reject the claim that the Supreme Court has prevented the state from ascertaining which of the Eritrean asylum seekers are indeed refugees entitled to international protection and which are not, demonstrating that contrary to this claim, the Court has actually criticized the state for dragging its feet in reviewing asylum applications, on numerous occasions.
D. We examine and reject the claim that the Supreme Court has prevented the state from enforcing the law against asylum seekers who have committed criminal offenses. We show that the Court has in fact upheld the state’s use of exceptional measures that allow for the indefinite detention of asylum seekers "involved in crimes", whom have not been convicted or whom have completed their sentence while deviating from the regular procedural and evidentiary rules that apply to suspects and defendants.
E. We examine and reject the claim that the Supreme Court has intervened in the government's general policy regarding the reception of asylum seekers. On the contrary, the Court has upheld the policies concerning the denial of work permits and of basic social rights.
