28 Jul COVID-19 and Courts Symposium: “Strategies of Avoidance” — The Israeli Supreme Court’s Failure to Respond to the COVID-19 Pandemic (Part 1)
Myssana Morany is an advocate and the Coordinator of Land and Planning Unit at Adalah – The Legal Center for Arab Minority Rights in Israel and principal author of Adalah’s report: Protecting Human Rights During a State of Emergency: The Supreme Court’s Role at the Beginning of the COVID-19 Crisis (forthcoming).
This symposium consists of a series of blogs authored by the different panelists of a webinar hosted by the International Commission of Jurists titled “COVID-19 and Courts: A Global Trend of Judicial Deference?“
In order to manage the global public health emergency brought on by the COVID-19 pandemic, government authorities from across the world have frequently promulgated emergency regulations and other exceptional measures. They have justified these restrictive measures by emphasizing the dangers posed by the virus to human life and the need for rapid, decisive action to protect public health.
However, State authorities have frequently failed to adequately consider the subsequent impact these measures would have on the human rights of all people within their jurisdictions, and to devise alternative measures with less detrimental effects on such rights as they are required to do by international law. The failure of States to consider – let alone implement – their human rights obligations in implementing response measures to COVID-19 has made the availability of judicial review of State action even more critical. Indeed, in the context of the often-sweeping powers held by the executive in particular in emergency responses, often in the absence of authorizing legislation and parliamentary oversight, judicial review becomes one of the only available avenues for people to seek protection of their human rights.
It is within this global context, that Israel’s responses to COVID-19 must be understood. States of emergency are not new in Israel. In fact, the State of Israel has been in an ongoing and declared state of emergency since its establishment in 1948. It has therefore continued to implement emergency regulations for the longest period of time in the world – ever since the end of World War II. As a general matter, Israeli courts have been rightly criticized for their role in legitimizing human rights violations, particularly against Palestinians, under these purported “emergency” and security considerations.
However, the COVID-19 pandemic – which has elsewhere been considered a civil emergency distinct from a national security emergency – has raised an additional question about the Israeli Supreme Court’s willingness to intervene in the government’s rule-making in order to ensure the protection of human rights, despite its long-standing judicial tradition of near-total executive discretion during an “emergency situation”.
As this blog shows, based on the research and experience of Adalah, the Court has continued to abdicate its duty to protect human rights, doubling down on its deferent approach at a time when its intervention could not have been more critical. Crucially, many of the Israeli government’s regulations and practices have had a disparate impact on the most marginalized populations, especially Palestinians, who are already subjugated to a colonial regime with apartheid characteristics and suffer from long-lasting discriminatory policies and a second class socio-economic status.
This blog is split into two parts. Part 1 outlines the executive dominated response to the civil emergency brought on COVID-19 in Israel and Palestine. Part 2 analyzes in further detail the complicity of the Israeli Supreme Court in allowing executive responses which impinge on the separation of powers and encroach on human rights.
Executive Dominance and the Separation of Powers
From the beginning of the pandemic, the Israeli Government chose to rely on executive-issued emergency regulations as the main tool for dealing with the COVID-19 outbreak. Under the Israeli Basic Law, the Knesset (Israeli Parliament) is vested with the exclusive power to declare a state of emergency, and thus was empowered to exercise this authority and only thereafter the executive is empowered to issues emergency regulations and take decisive action during the health crisis brought on by COVID-19. Instead, and despite the fact that the COVID-19 crisis is a civil emergency, (I use this term to contrast this emergency with one involving a period of hostilities such as a foreign invasion, armed insurrection or other alleged security threats) the executive simply assumed authority to respond under the general and security-oriented declaration of a state of emergency ongoing since 1948.
Moreover, the executive continued to issue emergency regulations under this declaration even after a new legislature was sworn in on 16 March 2020. These regulations governed almost every aspect of the day-to-day life of people from severe restrictions on movement; to the illegal dismissal of pregnant employees; to cellphone surveillance and location-tracking by the Shin Bet (Israel’s internal security service) of patients and people who came in contact with them.
Many of these executive issued regulations and practices had a disparate impact on the most marginalized, especially Palestinian citizens of Israel and residents of East Jerusalem, the West Bank and Gaza. A range of petitions regarding specific and severe human rights violations of Palestinians were submitted to the Israeli Supreme Court. These petitions dealt with various topics, including: the right to health and equal access to COVID-19 testing sites and quarantine facilities for Palestinians living in the Naqab (Negev) and in East Jerusalem neighborhoods beyond the Separation Wall; the rights of Palestinian political prisoners to family visits and in-person meetings with legal counsel; the labor rights of Palestinian workers (particularly in the Israeli construction sector); the right to education for Palestinian Bedouin children and youth who did not have access to remote learning; and, more broadly, the rights of Palestinians in the OPT and the obligations and duties of Israel as an Occupying Power.
The broad emergency powers wielded by the government were, by definition, at odds with the separation of powers. Claiming authority under the existing, general emergency declaration, the executive gave itself extensive new powers to promulgate emergency regulations, which often suspended and overcome ordinary laws relating to various aspects of everyday life. These regulations bypassed regular legislative processes with no parliamentary oversight, and were issued without a transparent decision-making procedure, any preliminary review, or any guarantees regard the proportionality of the included measures.
The exercise of these powers by the executive in the absence of authorizing legislation encroached upon the Knesset’s legislative power in a way that upset the balance of power between these branches of government and tilted the power in favor of the executive. The clear tension between these broad powers and the principle of the rule of law also requires the regulation of response measures to a civil emergency such as the one brought on by COVID-19 through primary legislation. This violation of separation of powers and rule of the law, in addition to the emergency situation itself, continues to pose a heightened risk of human rights violations.
*Both pieces are based on a soon to be published report by Adalah – The legal center for Arab Minority Rights in Israel, discussing the Role of the Israeli Supreme Court at the beginning of the COVD-19 Crisis. I would like to thank Laith Aqel for all of his help and useful comments.