Former Supreme Court president Aharon Barak stated repeatedly during a keynote address on Thursday that the West Bank was occupied territory and that he hoped a poliltical solution would be reached to solve the problems connected with the occupation.
He also indicated that the human rights situation among Palestinians in the West Bank was very grave and that Israeli Jews were not seriously addressing the problems of discrimination in Israel against Israeli Arabs.
"If you ask an Israeli, 'are you in favor of equality for Arabs,' they will say, 'yes, of course.' If you ask them are they in favor of throwing the [Arabs] into the sea, they say, 'yes, of course.' And it doesn't feel like any contradiction to them. I think that much, much more has to be done in this area."
Barak was speaking at the 25th anniversary celebration of "The US-Israel Civil Liberties Law Program," sponsored by The New Israel Fund and the Washington College of Law of the American University in Washington, DC. Each year, two attorneys are chosen to spend one year in the US, obtaining a Master's degree in civil rights law and interning with American public interest groups. In their second year, the fellows return to Israel and work full-time for a local public interest group.
Barak said that although the legislation of the Basic Law: Human Dignity and Freedom and the Basic Law: Freedom of Occupation did not directly affect the Palestinian population in the West Bank and Gaza, the laws influenced his way of looking at the question of how Palestinians were treated by the military administration.
Until the "constitutional revolution," as he calls the two basic laws passed in 1992, Barak applied administrative law to petitions challenging official Israeli actions in the territories.
"The question before me was what was the scope of the power of the military authorities [in the territories.] To the extent that human rights were able to restrict their power, this was an outcome, a derivative, from the concentration of the power of the state."
Slowly, he said, as a result of the human rights legislation, his thinking began to change. "In my new, better understanding of the role of international law of human rights and humanitarian international law, slowly, slowly, the vantage point started to shift from talking about the power of the military authorities and more and more to the question of the human and civil rights of the people living there."
He said the shift in emphasis in the West Bank and Gaza was parallel to a similar shift in thinking regarding issues between the state and the civilian population in Israel.
"When you think about human rights in Israel, you should think, of course, about human rights in the occupied territories as well," Barak continued. "The situation there is... you know better than I do, and I do hope the solution will not come in a judgment from the Supreme Court but will be a political solution. I do hope it comes as soon as possible."
Barak used the term "occupied territories" consistently throughout his address, and once even corrected himself when he started by referring to the territories as the "West Bank." Hebrew University law professor Michael Krayani, who participated in a panel discussion after Barak's speech, pointed out that in all his 28 years on the bench, Barak had always referred to the territories as "Judea and Samaria," except for in one or two rulings at the very beginning of his judicial career.
Krayani said that had Barak and other like-minded Supreme Court justices referred to the West Bank and Gaza as "occupied territory" in their rulings down through the years, the Israeli government might have felt constrained from pursuing a policy of Jewish settlement in these areas.
Regarding the Israeli Arab community, Barak said there was no contradiction between Israel as a Jewish state and Israel as a state for all its citizens. "I do see Israel as a Jewish state and a state whose values are Jewish and democratic. On the other hand, I am a great believer that this is the country of all its citizens. And I do think that the Arabs, like every other citizen, should have equality.
"We still have not worked out properly the inter-relationship between the Jewishness of the state and the fact that it is a state of all its citizens. There is a lot yet to be done, and I believe that it can be done."
Barak added that Israel had to find a way to live in peace with its Arab neighbors and the Israeli Arab population. "If we don't," he concluded, "we will not find a way to live in peace with ourselves."
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