All human beings, by virtue of their humanity, possess certain inherent rights, regardless of their actions, personal attributes, and belonging to (or exclusion from) a specific group. Human rights are innate; they are not conferred on people by the government, and thus the government is not entitled to deny them or violate them without justification. The role of the state in the protection of rights is twofold: on the one hand, the state is under an obligation to avoid unjustifiably infringing human rights, such as freedom of movement, freedom of thought, conscience, and religion, freedom of expression, and the right to privacy; on the other hand, the state must adopt certain measures and take action to protect human rights, such as the right to life and bodily integrity, the right to security, and the right to dignity, and to ensure that all residents and citizens of the state enjoy adequate living conditions and access to basic social services.
It is customary to divide human rights into the following groups:
Civil and Political Rights:
Social and Economic Rights:
Sometimes there is a clash between different rights. Thus, for example, freedom of expression is liable to conflict with the right to privacy, or the right to property might conflict with the right to equality. On other occasions, rights can clash with the public interest. In many cases, the field of human rights entails striking a balance between different rights and interests.
In 2008, along with the United Nations and NGOs around the world, ACRI will celebrate the 60th anniversary of the Universal Declaration of Human Rights as part of our annual Human Rights Week activities in December. Please visit ACRI’s Web site in the coming months for more information about the range of educational and public events we are planning throughout Israel to mark this important milestone.
Human Rights and International Law
Human rights are recognized under international law as universal rights to which each and every person is entitled. The significance of this recognition is that human rights lie above and beyond any particular nation’s laws or control. A demand that a country refrain from violating human rights, therefore, cannot be considered intervention in the internal affairs of that country.
Numerous documents on human rights were composed worldwide throughout the second half of the 20th century with the aim of defining a system of norms and standards for which there is widespread international agreement. The following is a survey of the most prominent of these documents.
The Universal Declaration of Human Rights, the first universal statement on the basic principles of inalienable human rights, was passed by the UN on December 10, 1948, in the wake of the atrocities of the Second World War and the rampant violation of the human rights of millions of individuals. A majority of the world’s nations signed the declaration, and since then December 10 has been observed worldwide as Human Rights Day.
Although the UN document is not binding on the member nations, it serves as a source of inspiration for human rights activities, and it is considered the fundamental document defining the entire body of recognized human rights.
The declaration opens with an affirmation of “the inherent dignity and of the equal and inalienable rights of all members of the human family.” Its thirty articles describe each of these human rights, which include the right to life, liberty, and personal security; a ban on slavery and torture or cruel punishment; the right to equality, free speech, religion, and belief; the right to marry and raise a family; and the right to an education, wellbeing, and minimal means for existence.
Once a country signs and ratifies an international convention, it is committed to honor the rights included in the document, adapt its domestic laws to satisfy the directives of the convention, establish an enforcement mechanism, and report periodically to international bodies on its success in meeting these directives. The principal international conventions dealing with human rights are as follows:
In 1991, after many years of being merely a signatory to some of these conventions, Israel ratified its participation in them. Ratification is a highly important step that indicates a greater commitment by the country to preserve and protect human rights. Israel submitted reservations regarding several sections of the conventions it ratified, most notably those ensuring freedom to marry and raise a family without discriminatory restrictions.
Human Rights and Democracy
The system of democratic rule provides guarantees for protecting human rights in the most effective way possible. These guarantees presuppose the existence of democracy in both senses of the concept: preservation of the majority rule principle, together with the protection of basic values and minority rights from infringement by the majority.
Israel is a parliamentary democracy. It holds free elections for the Knesset (the legislative authority) and prime minister every four years (at least). Every Israeli citizen over the age of 18 has the right to vote in Knesset elections, and every citizen over the age of 21 has the right to be elected to the Knesset.
Anchoring Human Rights in Basic Legislation
Many countries have chosen to guarantee human rights by including them in their own binding constitutional documents. To date, all attempts to anchor human rights in Israel in a Basic Law on Human Rights have failed. The main obstacles to enacting the Basic Law: Human Rights were the opposition of religious political parties, which viewed the legislation as a threat to the status of religion and the presence of religious norms in Israel, and security concerns and the desire of the authorities to maintain legislation (such as defense regulations at a time of emergency) that grants wide authority to disregard civil liberties in the name of security.
The absence of a constitution or bill of rights in Israel has not prevented the establishment of legal norms for guaranteeing basic human rights over the years by the courts, particularly the High Court of Justice (HCJ). The HCJ has ruled that as a free democracy, Israel must guarantee basic liberties to its citizens-freedom of expression, religion, and belief; equality under the law; and the right to due process. Nevertheless, the court is not authorized to rule that a law passed by the Knesset or in effect since the days of the British Mandate is unconstitutional (given the absence of a constitution), even if it believes that the law violates basic human rights.
Although Israel has yet to develop a constitution or a complete bill of human rights, it has attempted to gradually enshrine rights for which there is widespread political consensus. Accordingly, in 1992, the Basic Law: Freedom of Occupation and the Basic Law: Human Liberty and Dignity were enacted.
Enactment of these two Basic Laws led to changes in the status of rights explicitly referred to in the Basic Laws, among them the right to life, liberty, and dignity; the right to privacy, the right to own property, the right to leave and enter the country; and freedom of occupation. The Basic Laws also authorized the High Court of Justice to subject Knesset legislation to judicial review and to annul laws (enacted after 1992) that violate the fundamental rights designated in the Basic Laws. A number of fundamental rights are not specifically mentioned in these laws-the right to equality, the right to freedom of expression, and the right to freedom of religion and conscience, for instance-and it is not clear if these rights are protected by the Basic Laws. While the High Court has yet to hand down a definitive judgment on this issue, its history of rulings and various statements made by its judges indicate a predilection toward recognizing the right to equality, freedom of expression, and freedom of religion and conscience as corollaries of the right to dignity.
Over the past several years, the Knesset and Ministry of Justice have been deliberating proposals for additional Basic Laws that expand on the rights protected by the Basic Laws of Freedom of Occupation and Human Liberty and Dignity. These proposals include:
Even among these proposed laws, the highly important rights to equality and freedom of religion and conscience are glaringly absent. Without them, Israel’s bill of rights cannot be seen as complete. Given the influence of religious parties on government affairs, however, there is little chance of reaching agreement on these matters.
The absence of a constitution or a basic law that protects human rights as an overriding legislative norm has ramifications for human rights in two major areas:
A. Mandatory orders and laws without constitutional backing permit the continued existence of mandatory orders and laws that grant wide administrative authority to various official bodies to violate personal freedoms. The most serious legislation of this type is the 1945 Defense Regulations (State of Emergency). These regulations, which carry the status of primary legislation, were enacted as emergency legislation by the British Mandatory government, and they granted the High Commissioner wide administrative authority to deny civil liberties through arrest, restraining orders, censorship, restrictions on freedom of expression, and deportations. Following establishment of the state, Israel approved the continued validity of the defense regulations and incorporated them into its laws.
In 1979, the section stipulating conditions for deportation was removed from the regulations, and the section granting authority for administrative detention without limitations or judicial monitoring was replaced by a law that sets conditions for safeguarding the rights of detainees to a greater extent. Nevertheless, many administrative authorities were left in tact and are still in use today. While government bodies refer to them infrequently, they rely on them occasionally to censor publications and mail, as well as to restrict the movement of individuals for security reasons.
In addition to the Defense Regulations, other Mandatory legislation granting authority to restrict the rights of citizens for defense purposes has been incorporated into Israeli law. One example is the Press Order, which requires a government license for the publication of newspapers. These Mandatory orders and regulations have yet to be annulled, and they retain their validity within the Israeli legal system.
B. Personal status is another area in which the absence of a constitution or comprehensive bill of rights leads to violations of basic human rights, and one of the clearest examples is marriage and divorce law. In Israel, marriages and divorces are authorized by religious rather than civil law, meaning that the only individuals permitted to record marriages in Israel are those recognized by the Minister of Religion (and the Chief Rabbinate, for Jews) as qualified to do so, and that laws in the matter of Jewish marriage and divorce in Israel are “the laws of Torah.” This situation, which has existed in Israel since its establishment, prevents many Israeli citizens from exercising their right to marry and divorce freely, according to their own choice and conscience.
