Forced military rule naturally arouses political resistance among those it subjugates. Hence, it inherently involves suppressing the political life of the subjugated population. In fact, suppression or manipulation of the political life is a necessary condition for the survival of oppression. Though this is self-evident, it is odd to see how a court in a self-professed democracy implements it without reservation.
In October of 1989, at the height of the first Intifada, the Supreme Court delivered the verdict in the matter of the In’ash al-Usra Association. The court, in a rare occurrence, partially accepted the petition. In its rejection of the main thrust of the petition and the reasoning it provided for the partial acceptance, the court does not hide the legitimacy it confers on the suppression of political activity in the Occupied Palestinian Territories (OPT).
The petition concerns a two-year closure order issued by the military commander in the West Bank against the In’ash al-Usra Association (إنعاش الأسرة; which translates as “the association for the promotion of the family” or “the association for the revival of the family”). The association, still active today, is one of the more prominent social assistance and women empowerment organizations in the OPT. Samiha Khalil, the founder of the association and its director at the time, was named as the second petitioner. Khalil, a major activist in the Palestinian national movement, incorporated both the national and feminist causes in her activities. She is known, among other things, for turning traditional Palestinian embroidery into a tool for generating income for women and for empowering them. Khalil, who was affiliated with the Democratic Front for the Liberation of Palestine, was a member of various institutions in the Palestinian national movement. She ran against Yasser ‘Arafat in the 1996 presidential election (winning over 10% of the vote) and passed away in 1999.
Khalil was not the only one with a big future ahead of her. Amram Mitzna, then IDF Commander in the West Bank, would later run for Israel’s prime minister’s office to be defeated by Sharon. The names of the lawyers representing the parties would not soon be forgotten either: Leah Tsemel and Avigdor Feldman on one side and Meni Mazuz on the other.
The closure order against the In’ash al-Usra Association was issued in June 1988. The court describes the context for the issuance of the order as follows:
According to the respondent, security forces learned as early as in the 1970s and early 1980s that the association departs from its official objectives and functions and uses cultural, social assistance and educational activities as a podium for political activity which is hostile to the State of Israel, including hostile propaganda and inciting violence against the State of Israel and the IDF. This in contravention of the Jordanian Charitable Association Law which remained in effect in Judea and Samaria and according to which a charitable association or social institution is prohibited from conducting any activity designed to “achieve political objectives” and in contravention of the association’s internal regulations which stipulate that the “association shall not intervene in politics in any way …”.[1]
Furthermore:
Hostile and inciting literature as well as extremely and blatantly anti-Israeli and anti-Semitic videos were found in a search of the association’s offices. These videos contained, inter alia, songs praising terrorist organizations and hateful incitement against Israel and IDF soldiers.[2]
The court also mentions confidential intelligence materials, according to which “the association’s institutions were widely used for spreading subversive and inflammatory opinions among the public in need of the associations’ services”.
[3] The court rejected the petition inasmuch as it was directed against the order itself in the first hearing. As the court stated:
In so deciding we effectively found that in view of the materials presented to us we had no doubt, not even an alleged doubt, with respect to the validity of the closure order itself, but that the question of the reasonableness of the duration of the closure should be clarified and reviewed by us.[4]
The court does not attempt to hide the suppression of political activity. It does not purport to distinguish, for example, between legitimate political activity and violence. “Political activity which is hostile to Israel”, “spreading subversive opinions” and “inciting violence” are cited together among the reasons for shutting down the association. The only distinction is made between charitable and educational activity which is permitted and even vital for normal life in the territory, and political activity and resistance against the military regime (subversive acts, hostile propaganda, incitement etc., as the court put it) – which are prohibited.
On this issue, the court cites the provisions of the Hague Regulations which oblige the occupier to maintain public order in the occupied territory,
[5] and Israeli case law which clarifies that orderly life includes all civilian needs – including matters pertaining to society, the economy, education, hygiene, health, transportation and other matters to which “human life in modern society is connected”.
[6] The charitable activities of In’ash al-Usra did meet this category. Yet, the absence of participation in political life from the list of matters to which life in modern society is connected stands out.
The association’s charitable and educational activities lead the court to shorten the closure order. The court ruled that the closure order has a deterring role: “[T]he closure for two years seems unreasonably long and it should have been clarified whether an order for a more limited time could achieve the deterrent objective sought”.
[7] In other words, the authority to shut down an association should be used as an educational tool in the hopes that the association and its director could be returned to the apolitical straight and narrow. The order was not shortened because of a lenient approach to public and political activism, but out of a paternalistic approach which assumes that by using the carrot and stick method people can be trained to behave in a manner fitting the occupier’s interests: namely hold charitable and educational activities which are in the occupier’s interest and refrain from striving for liberty, which is against it.
Just as the reasoning for the judgment accepts the fundamental presumptions of military regimes, so its effective result is extremely minimal: the court ruled that the order should have been issued for one year only at the end of which the military commander should have considered its extension in accordance with the circumstances. However, as the judgment was given after the order had been valid for over a year, the court shortened it from two years to a year and a half only, with the possibility of extension.
Perhaps nowadays the court would have been more cautious and used a more apologetic rhetoric to explain how political-civilian action is just one factor serving violence against civilians. It seems that this need was not felt in the 1980s. The In’ash al-Usra judgment reflects an Israeli fantasy about a Palestinian society that takes care of its own education and welfare and does not entertain political dreams of liberty. The attempt to enforce this fantasy is not just destined for failure but it undermines the very legitimacy of the court.
Exactly 200 years before this judgment, the Declaration of the Rights of Man formulated in France stated:
The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
And in the words of the American Declaration of Independence:
[M]ankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Adv. Yossi WolfsonThe author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.
