Dr. Yousef T. Jabareen, lecturer in law at the University of Haifa
Prof. Nadim Rouhana, The Fletcher School, Tufts University
Professor Michael Karayanni of the Law Faculty of Hebrew University
Dr. Hala Khoury-Bisharat, of the Tel Aviv University Law Faculty
Dr. Raif Zreik, of the Minerva Center for the Humanities at Tel Aviv University
Legal Action: Aspects, Goals, and Challenges (January 2010)
“We must understand the limitations of legal advocacy in our situation. Defining Israel as a Jewish state means there are elements in the state that cannot be changed, a fact that is enshrined in dozens of statutes that clearly discriminate on the basis of race. We, as jurists, cannot change much by means of Israeli law. Room for maneuvering lies outside the very limited sphere of the definition of the state.” These comments were made by Dr. Yousef T. Jabareen, Director of the Dirasat Center and lecturer in law at the University of Haifa, during a workshop organized by Mada al-Carmel.
The workshop was the fifth and last of Mada’s series of workshops in the framework of its Political Participation Research Project. The objective of the project was to study the various tools of political participation, among them the involvement of Palestinian citizens of Israel, and their effectiveness and effects in waging the struggle they have been engaged in since 1948.
Prof. Nadim Rouhana, Director of Mada and head of the project, opened the workshop and moderated the first session. Rouhana pointed out that the purpose of the workshops was to study anew the range of political activity of Palestinians in Israel, in the framework of collective thinking by a group of academics, politicians, and activists. Advocates Nasreen A’limy-Kabahah and Alaa Mahajneh, researchers on the legal activity team, presented questions arising from the research for the participants’ consideration and discussion.
“Israel is a racist state, and a racist state cannot guarantee or create a culture of justice. It creates a racist and aggressive culture,” stated Hussein Abu Hussein, Chair of the Board of Ittijah - The Union of Arab Community Based Associations. He noted that the question of whether Israel is a state of law is not relevant, inasmuch as South Africa during apartheid operated in accordance with its laws.
Dr. Yousef T. Jabareen emphasized the importance of understanding the limitations of legal discourse, given the character of the State of Israel and the definition of the state. He also noted that the Israeli legal system is incapable of altering the collective status of its Palestinian citizens. At the end of his comments, Jabareen noted that legal advocacy is important despite the limited maneuvering room. However, its importance should not be exaggerated, and it is forbidden to forgo using means other than the courts in waging the public struggle.
The Director of the Adalah, Advocate Hassan Jabarin said that a foreign visitor to this country would immediately notice that there are two groups: a Jewish nation, for whom politics is above the law, where he will find the absence of restrictions, assassinations, war, and the ongoing breach of international conventions, and on the other side, a nation under occupation, whose only political discourse is a legal one with its entire political activity is based on that discourse. Jabareen further pointed out that the exaggerated use of legal tools is liable to create an illusion among the oppressed and deprived people that it is living in the shadow of a democratic regime, while at the same time, it is forbidden to proceed without this tool.
The second session was opened and moderated by Professor Michael Karayanni of the Law Faculty of Hebrew University. He spoke about international advocacy and asked whether real results had been achieved by means of legal advocacy, or whether the hegemon controls everything.
The first to speak in this session was the Honorable Judge Emeritus Rayek Jarjoura. He pointed out that there has been a policy of racial discrimination from 1948 to the present time. He spoke of his experience as a judge, and said that Israeli courts cannot change much since they operate within the framework of the worst of racist laws.
Dr. Hala Khoury-Bisharat, of the Tel Aviv University Law Faculty, gave a survey of international advocacy and the possibilities available to Palestinian citizens. She stated that the only possibility in this context is to mobilize around the crimes that Israel committed in 1948.
The last of the speakers was Dr. Raif Zreik, of the Minerva Center for the Humanities at Tel Aviv University. Zreik pointed out that law, contrary to politics, is based on abstraction and is detached from the past and present, an island of agreement in a sea of differences of opinion. He added that the law does not strive to achieve social justice, since it relates only to specific legal incidents and the relevant facts. “The liberal fantasy holds that the law is above everything, and that the law must restrain power. In the liberal conception, it is the last refuge of the deprived. Marxism, on the other hand, holds that the law is the shadow of politics, and that politics and ideology are the essence. For Marxists, the law is the watchdog of politics. From this perspective, the law is a pretty mask that the state uses to cover its ugly face,” Zreik said.