Emergency As a State of Mind - The Case of Israel

Abstract

Since its establishment in 1948, Israel has been in a state of war and in extended periods of emergency. The Declaration of Independence founded Israel as a 'Jewish and democratic' state, but since the very beginning a 'state of emergency' was declared, which is permanent ever since.

Furthermore, one-fifth of Israel’s citizens are Arab nationals (Palestinian Israelis) who wish to preserve their culture, religion and language, while sympathising with the Palestinian nation and the Arab world, with which the State of Israel is in a state of ongoing belligerency. In the 1967 war, Israel occupied populated territories, which created serious debates about the civil status and general fate of the Palestinian population of the West Bank and the Gaza Strip. The Supreme Court of Israel allowed Palestinians to appeal against decisions made by the military commanders of the occupied regions, sharply defending the need to protect human rights even in times of emergency. War and terror acts have resulted in an almost daily examination of restrictions of human rights, pressing the need to find the right balance between defending those rights and protecting national security.

This paper will present, first, the Israeli model of a state of emergency, the different types of power granted to the executive, its normative framework, and its uses in the past and present as well as parliamentary and judiciary control.

Second, it will disclose the difficulties a permanent state of emergency poses: how the ongoing executive power may lead to the misuse of emergency rules by politicians, applying unusual methods and procedures in circumstances that have nothing to do with emergency; how parliamentary control tends to weaken, how power shifts from Parliament to the executive and how emergency legislative tools seem to "migrate" even to constitutional amendments. The article will discuss the unique role of the Supreme Court of Israel (sitting as the High Court of Justice) as a powerful controller of emergency regulations, measures and decisions. The Court's activist rulings on military and security cases, coupled with its criticism of government powers, have played a most significant role in shaping Israel's state of emergency. Last, it will analyze the new anti-terrorism law approved on June 15th, 2016 - a further step within the global war on terror - a law which creates new offences, significantly expands both the state’s counterterrorism powers and its definitions of terrorist organizations and terrorist acts.

Keywords: emergency rules, constitutional law, state of emergency, terrorism