In 1896 the United States Supreme Court handed down one of its most shameful decisions in the case of Plessy v. Ferguson [2], rejecting the argument that the segregation between whites and blacks on trains in the state of Louisiana violated the principle of equality.
"We consider the underlying fallacy of the plaintiff's argument,” the court wrote in words that today are considered to be one of the most embarrassing moments in U.S. judicial history, “to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."
The U.S. Supreme Court did not reject the notion that "separate but equal" can indeed be equal until more than half a century later. In the landmark case of Brown v. Board of Education, in 1954, it ruled that racial segregation in public schools violated the principle of equality before the law.
It took another two years before the change came to public transportation in the United States. On December 1, 1955 a black woman named Rosa Parks was arrested after refusing to give up her seat in the "colored" section of a crowded public bus in Montgomery, Alabama to a white passenger. The incident was the catalyst for the Montgomery Bus Boycott, a formative event of the U.S. civil rights movement. It led to the Supreme Court's 1956 decision extending the prohibition of segregation to public transportation and thereby reversing its 1896 ruling in Plessy v. Ferguson.
In Israel, in contrast, we have returned through the time tunnel to 1896: Palestinians are being ordered off public buses in the West Bank, and on Tuesday the Transportation Ministry is to introduce separate bus lines for Palestinians, to keep Palestinians who are traveling to work in Israel from riding the same bus lines as Jews.
The ministry, in a statement reminiscent of the U.S. Supreme Court circa 1896, says the lines are aimed at relieving the distress of the Palestinian workers.
In 2009 the High Court of Justice struck down a prohibition barring Palestinians from Route 443, a main artery of transportation between Jerusalem and central Israel, and restricting its use to Jewish settlers.
In its decision the High Court said that had this been the road's purpose, the Israel Defense Forces would not have been allowed to build it: International law forbids the army of an occupying power from planning and building road networks intended for its own citizens and not the inhabitants of the occupied territory.
Differing circumstances aside, the policy reversed by the High Court in the case of Route 443 is similar to the Transportation Ministry's new policy regarding certain bus lines, insofar as both involve the development of a means of transportation for the citizens of the occupying state and its separation from the local population. This violates the rules of international law whereby occupation is a temporary situation only, and the occupying power must administer the territory for the benefit of the local population.
In this sense the bus issue is only one more component of Israel's de facto annexation of the territories, an annexation accompanied by the creation of a regime of segregation – which is of course unequal – between Jews and Palestinians.
In her ruling on Route 443, then-Supreme Court President Dorit Beinisch commented that the petitioners' equation of the use of separate roads with South Africa's former apartheid policy was inappropriate.
But even if there are differences between the situation in the territories and the legal definition of apartheid, the bus segregation is another characteristic of a regime based on the separation of residence, movement and laws in accordance with the origin of the populations, and as such it brings Israel one step closer to apartheid.
In 2011 the High Court of Justice ruled on the so-called mehadrin buses, serving the ultra-Orthodox community, in which women were required to sit at the back of the bus.
“As I now read over these lines emphasizing this,” wrote Justice Elyakim Rubinstein [3] in reference to a Transportation Ministry directive prohibiting such segregation, “I am astounded that there was even a need to write them in the year 2010. Have the days of Rosa Parks, the African American woman who collapsed the racist segregation on an Alabama bus in 1955 returned?"
Today, despite the differences between the segregation on the mehadrin buses and the segregation in the territories, the answer to Rubinstein’s question is yes, those days have returned. We have gone back to 1955 and in effect to 1896.
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